In re P.V.M.

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-1155
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1155 NORTH CAROLINA COURT OF APPEALS Filed: 15 April 2014 In the Matter of: Guilford County No. 11 JT 163 P.V.M.

Appeal by respondent-father from order entered 18 July 2013

by Judge Wendy Enochs in Guilford County District Court. Heard

in the Court of Appeals 31 March 2014.

Mercedes O. Chut, for Guilford County Department of Social Services, petitioner-appellee.

Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett, for guardian ad litem.

J. Thomas Diepenbrock for respondent-appellant.

ERVIN, Judge.

Respondent-Father David M. appeals from an order

terminating his parental rights in P.V.M.1 On appeal,

Respondent-Father contends that the trial court erred by

determining that his parental rights in Peter were subject to

1 P.V.M. will be referred to throughout the remainder of this opinion as “Peter,” which is a pseudonym used for ease of reading and to protect the juvenile’s privacy. -2- termination and that Peter’s best interests would be served by

the termination of Respondent-Father’s parental rights. After

careful consideration of Respondent-Father’s challenges to the

trial court’s order in light of the record and the applicable

law, we conclude that the trial court’s order should be

affirmed.

I. Factual Background

Peter was born out of wedlock in 2006. On 8 March 2011,

the Guilford County Department of Social Services filed a

petition alleging that Peter was a neglected and dependent

juvenile based upon allegations that Peter’s mother, Valerie M.,

lacked stable and adequate housing, had a substance abuse

problem, could not properly care for Peter, and had failed to

comply with her case plan and obtained the issuance of an order

authorizing it to take Peter into non-secure custody. As the

result of DNA testing conducted on 1 March 2011, Respondent-

Father was determined to be Peter’s father. On 9 August 2011,

Judge K. Michelle Fletcher entered an order finding that Peter

was a neglected and dependent juvenile, retaining Peter in DSS

custody, ordering both of Peter’s parents to comply with their

case plans, and authorizing visitation between Respondent-Father

and Peter. -3- Although Respondent-Father initially complied with portions

of his case plan and developed a loving relationship with Peter,

he failed to obtain independent housing, failed a number of

substance abuse screens, and engaged in other conduct that

raised questions about his ability to successfully parent Peter.

On 17 December 2012, DSS filed a petition seeking to have the

parental rights of both Peter’s mother and Respondent-Father in

Peter terminated. On 19 February 2013, Peter’s mother

relinquished her parental rights in Peter. After conducting a

hearing on 25 June 2013, the trial court entered an order on 18

July 2013 determining that Respondent-Father’s parental rights

in Peter were subject to termination on the grounds that he had

(1) neglected Peter; (2) willfully left Peter in foster care for

more than twelve months without making reasonable progress

toward correcting the conditions that had led to Peter’s removal

from the home; (3) willfully refused to pay a reasonable portion

of the cost of Peter’s care despite having the physical and

financial ability to do so during the six month period preceding

the filing of the termination petition; and (4) failed to

establish paternity, legitimate Peter, or provide substantial

financial support or consistent care for Peter and his mother

and that Peter’s best interests would be served by the

termination of Respondent-Father’s parental rights. Respondent- -4- Father noted an appeal to this Court from the trial court’s

order.

II. Substantive Legal Analysis

In his brief, Respondent-Father contends that the trial

court erred by finding that his parental rights in Peter were

subject to termination and that Peter’s best interests would be

served by the termination of his parental rights. More

specifically, Respondent-Father contends that the trial court

erred by determining that his parental rights in Peter were

subject to termination on the grounds of neglect, failure to

make reasonable progress, failure to make a reasonable

contribution toward the cost of Peter’s care, and failure to

establish paternity, legitimate Peter, or provide substantial

support or consistent care for Peter and his mother on the

grounds that the record evidence and the trial court’s findings

did not support these determinations and by failing to properly

consider certain relevant factors in determining that Peter’s

best interests would be served by the termination of Respondent-

Father’s parental rights. Respondent-Father’s arguments do not

justify a decision to overturn the trial court’s termination

A. Standard of Review -5- “The standard of review in termination of parental rights

cases is whether the findings of fact are supported by clear,

cogent and convincing evidence and whether these findings, in

turn, support the conclusions of law. We then consider, based

on the grounds found for termination, whether the trial court

abused its discretion in finding termination to be in the best

interest of the child.” In re Shepard, 162 N.C. App. 215, 221-

22, 591 S.E.2d 1, 6 (citation and quotation marks omitted),

disc. review denied sub nom. In re D.S., 358 N.C. 543, 599

S.E.2d 42 (2004). We will now utilize the applicable standard

of review in evaluating the validity of Respondent-Father’s

challenges to the validity of the trial court’s order.

B. Grounds for Termination

In his initial challenge to the trial court’s termination

order, Respondent-Father contends that the trial court erred by

concluding that he had neglected Peter and that there was a

reasonable probability that Peter would be subject to additional

neglect in the event that Respondent-Father were to be made

responsible for his care. In support of this contention,

Respondent-Father argues that the trial court’s determination

that his parental rights in Peter were subject to termination

for neglect lacked adequate support in either the record

evidence or the trial court’s findings of fact given that Peter -6- was taken into DSS custody on the basis of his mother’s neglect

of Peter rather than on the basis of any of Respondent-Father’s

own conduct and that Respondent-Father’s parental rights should

not be terminated based upon neglectful conduct engaged in by

someone else. We do not find these arguments persuasive.

A parent’s parental rights in his or her child are subject

to termination on the grounds of neglect pursuant to N.C. Gen.

Stat. § 7B-1111(a)(1). A parent neglects his or her child by

failing to provide the child with proper care, supervision,

discipline or a safe environment, or by abandoning the child.

N.C. Gen. Stat. § 7B-101(15). As the Supreme Court has clearly

stated:

[t]he fact that a parent does provide love, affection and concern, although it may be relevant, should not be determinative, in that the court could still find the child to be neglected within the meaning of our neglect and termination statutes. Where the evidence shows that a parent has failed or is unable to adequately provide for his child’s physical and economic needs, whether it be by reason of mental infirmity or by reason of willful conduct on the part of the parent, and it appears that the parent will not or is not able to correct those inadequate conditions within a reasonable time, the court may appropriately conclude that the child is neglected.

In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251-52

(1984). In determining that a parent’s parental rights in a

child are subject to termination for neglect, the trial court -7- must conclude that neglect exists at the time of the termination

hearing or that there is a probability that neglect will occur

in the future. See In re Ballard, 311 N.C. 708, 715, 319 S.E.2d

227, 232 (1984). A prior adjudication that the child is abused

or neglected is not required in order to terminate parental

rights on this ground. In re Faircloth, 153 N.C. App. 565, 571,

571 S.E.2d 65, 69 (2002).

In its termination order, the trial court found, among

other things, that Respondent-Father had completed a parenting

assessment and complied with the recommendations resulting from

the assessment, that Respondent-Father had failed to obtain

stable housing given that he did not have a permanent place at

which he and Peter could live at the time of the termination

hearing, and that he had tested positive for alcohol or

controlled substances eight times between 3 May 2011 and 16

April 2013 despite participating in substance abuse treatment.

More particularly, the trial court found that:

The father was previously renting a room at a boarding house from his significant other, . . . . [His significant other] had reported to DSS that this was a temporary living situation for the father. Subsequent to that, the father obtained subsidized housing for a brief period of time, but was later evicted, reportedly due to nonpayment of rent. Thereafter he returned to the home of [his significant other]. At some point during the pendency of this matter, [the father’s significant other] indicated that -8- the juvenile could come and stay with [the father] at her home, but [the father] has since been required to leave due to a disagreement between himself and [his significant other’s] daughter. [The father] is currently staying with a friend, but has been told that he must vacate that residence within the next 30 days. He does not have another place to live arranged at this time.

. . . .

The father completed a substance abuse assessment on [8 August 2012]. He was referred for outpatient services at Daymark Recovery Center. The father participated in group counseling two times a week. The father is now participating in group sessions two times a week and in Individual sessions two times per month at Family Services of the Piedmont. The father has complied with random drug screens. The father has tested negative for all illicit substances nine separate times since the child came into care. However, the father has tested positive for illicit substances or alcohol as follows:

May 3, 2011 — positive for alcohol June 4, 2012 — positive for alcohol July 17, 2012 — positive for cocaine July 25, 2012 — positive for cocaine January 5, 2013 — positive for cocaine and marijuana February 25, 2013 — positive for cocaine March 5, 2012 — positive for cocaine April 16, 2013 — positive for cocaine

In addition, the trial court found that:

[The father] has not achieved substantial compliance with the objectives of his case plan. He has not been able to provide a secure or stable home for the juvenile or show that he has effectively addressed his substance abuse problem. He has not been -9- able to demonstrate that he has been able to translate the teachings of the parenting classes into his own interactions with [Peter]. It is evident that he cares for [Peter] very much, but he has not gained the skills to effectively parent this child or provide a safe and secure home for him.

As a result, the trial court determined that Respondent-Father’s

parental rights in Peter were subject to termination for neglect

as authorized by N.C. Gen. Stat. § 7B-1111(a)(2) given that

Respondent-Father “has neglected the juvenile within the meaning

of [N.C. Gen. Stat. §] 7B-101, and such neglect is reasonably

likely to continue if the said juvenile is returned to his

custody and control.”

The trial court’s findings of fact demonstrate that

Respondent-Father is unable to provide for Peter’s physical and

economic needs, has had to rely upon friends for temporary

housing for himself, and has been evicted from subsidized

housing for failure to pay rent. The trial court’s findings

further show that Respondent-Father failed to abstain from the

use of illicit substances given the fact that he has tested

positive for consumption of alcohol, cocaine, and marijuana on

several occasions between 3 May 2011 and 16 April 2013.

Finally, the trial court found that Respondent-Father has failed

to apply what he has been taught in parenting classes during his

own interactions with Peter and has not gained the skills -10- necessary to parent Peter effectively or provide a safe and

secure home for him. As a result of the fact that Respondent-

Father has failed to challenge the sufficiency of the record

support for these findings, all of which relate to conduct by

Respondent-Father rather than by Peter’s mother, the relevant

findings of fact are presumed to have adequate evidentiary

support and are binding upon us for purposes of appellate

review. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133

(1982).

As this Court has previously held, the fact that a parent

has failed to provide a stable residence for a child and exposed

the child to users of illegal drugs supports a determination of

neglect. In re Helms, 127 N.C. App. 505, 511-12, 491 S.E.2d

672, 676 (1997). The trial court’s findings of fact reveal the

existence of just such a situation in this case. As a result,

we hold that the trial court’s findings have adequate record

support; that these findings support the trial court’s

determination that Respondent-Father has neglected Peter and

that there is a reasonable probability that Peter will be

neglected if Respondent-Father is made responsible for his care

in the future; that the fact that Peter was initially placed

into DSS custody as a result of conduct in which Peter’s mother

engaged does not preclude a determination that Respondent- -11- Father’s parental rights in Peter were subject to termination

for neglect; and that the trial court did not err by concluding

that Respondent-Father’s parental rights in Peter were subject

to termination for neglect.2

C. Best Interests Determination

In addition, Respondent-Father contends that the trial

court erred by concluding that Peter’s best interests would be

served by terminating Respondent-Father’s parental rights. More

specifically, Respondent-Father argues that the trial court

failed to properly consider the criteria enunciated in N.C. Gen.

Stat. § 7B-1110(a) in making its best interests decision given

that it failed to give adequate weight to the strength of

Respondent-Father’s bond with Peter; failed to give adequate

weight to the poor health and advanced age of Peter’s

prospective adoptive parent, who was his maternal grandmother;

and ignored a therapist’s testimony to the effect that a 2 Although Respondent-Father has also challenged the trial court’s determination that his parental rights in Peter were subject to termination for failure to make reasonable progress toward correcting the conditions that led to his placement in DSS custody, to pay a reasonable portion of the cost of Peter’s care, and to establish paternity, legitimate Peter, or provide reasonable financial assistance to or care for Peter and his mother, we need not address these components of Respondent- Father’s challenge to the trial court’s order given that a single ground for termination suffices to support a determination that a parent’s parental rights are subject to termination. In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). -12- decision to terminate Respondent-Father’s parental rights would

not be in Peter’s best interests. We do not find these

arguments persuasive.

A trial court’s decision concerning the extent to which the

termination of a parent’s parental rights would be in the

child’s best interests is discretionary in nature and is, as we

have already noted, reviewed on appeal using an abuse of

discretion standard of review. In re Anderson, 151 N.C. App.

94, 98, 564 S.E.2d 599, 602 (2002). “A ruling committed to a

trial court’s discretion is to be accorded great deference and

will be upset only upon a showing that it was so arbitrary that

it could not have been the result of a reasoned decision.”

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

According to N.C. Gen. Stat. § 7B-1110(a), the trial court must

consider “[t]he age of the juvenile”; “[t]he likelihood of

adoption of the juvenile”; “[w]hether the termination of

parental rights will aid in the accomplishment of the permanent

plan for the juvenile”; “[t]he bond between the juvenile and the

parent”; “[t]he quality of the relationship between the juvenile

and the proposed adopting parent, guardian, custodian, or other

permanent placement”; and “[a]ny [other] relevant

consideration.” In making its best interests decision, a trial

court is entitled to assign more weight to one or more of the -13- statutorily delineated factors than to others. In re C.L.C.,

171 N.C. App. 438, 448, 615 S.E.2d 704, 709 (2005), aff’d, 360

N.C. 475, 628 S.E.2d 760 (2006).

In its order, the trial court found that Peter is six years

old and highly adoptable. In addition, the trial court found

that the likelihood that Peter would be adopted by his maternal

grandmother, who has been involved in his care since birth, who

had become his foster parent after Peter was taken into DSS

custody, and who had been responsible for his care on a full-

time basis for 25 months prior to the termination hearing, was

high. The trial court further found that Peter is a bright,

healthy, and well-adjusted child; that Peter had thrived in the

care of his maternal grandmother; that Peter referred to his

maternal grandmother’s residence as his home; that Peter knew

that his maternal grandmother would provide for all of his

needs; and that Peter had known his maternal grandmother to be

his caretaker for his entire life. Although the trial court

found the bond between Peter and his maternal grandmother was

“very strong,” it characterized the bond between Peter and

Respondent-Father as simply “strong.” In apparent recognition

of the advanced age and less-than-robust health of Peter’s

maternal grandmother, the trial court noted that Peter’s half-

brother, who attends college, has lived with Peter’s maternal -14- grandmother since the age of two, continues to live in that home

when he is not attending school, and actively supports his

maternal grandmother by helping her care for Peter when he is at

home and that one of Peter’s uncles has played an active role in

Peter’s life and has helped Peter’s maternal grandmother care

for Peter. Although Respondent-Father might have preferred that

the trial court weigh the relevant factors differently in making

its best interests decision, we are not entitled to disturb a

trial court’s best interests determination on the grounds

advanced in Respondent-Father’s brief. As a result, given that

a careful analysis of the relevant portions of the trial court’s

order demonstrates that the trial court carefully weighed the

relevant statutory criteria and utilized those statutory

criteria to make a reasoned evaluation of whether Peter’s best

interests would be served by the termination of Respondent-

Father’s parental rights, we conclude that the trial court did

not commit any error of law in the course of making its best

interests determination.

III. Conclusion

Thus, for the reasons set forth above, none of Respondent-

Father’s challenges to the trial court’s order justify a

decision to provide an award of appellate relief. As a result,

the trial court’s order should be, and hereby is, affirmed. -15- AFFIRMED.

Judges ROBERT N. HUNTER, JR., and DAVIS concur.

Report per Rule 30(e).