In re

Decision Date18 March 2022
Docket Number215A21
Parties In the MATTER OF: M.S.L. a/k/a M.S.H.
CourtNorth Carolina Supreme Court

Theresa A. Boucher, Winston-Salem, for petitioner-appellee Forsyth County Department of Social Services.

Parker Poe Adams & Bernstein LLP, Charlotte, by Maya Madura Engle, for Guardian ad Litem.

Benjamin J. Kull, Raleigh, for respondent-appellant.

NEWBY, Chief Justice.

¶ 1 Respondent-father appeals from the trial court's order terminating his parental rights to M.S.L. a/k/a M.S.H. (Monica).1 Because we hold the trial court did not err in terminating respondent's parental rights, we affirm the trial court's order.

¶ 2 Monica was born on 2 March 2019. Monica's biological mother, who is not a party to this appeal, has an extensive history of drug use, including during her pregnancy with Monica. At birth Monica tested positive for substances due to her mother's drug use. On 13 March 2019, the Forsyth County Department of Social Services (DSS) obtained custody of Monica. That same day she was placed in a foster home, where she has remained.

¶ 3 Initially Monica's mother identified C. Hall as Monica's father. Hall signed an affidavit of paternity. Paternity tests later revealed, however, that he was not Monica's biological father. On 21 November 2019, respondent reported to DSS that he believed he was Monica's father. Respondent and Monica's mother had met years earlier when respondent was dating Monica's maternal grandmother. Respondent later revealed to the social worker that their relationship was "not something that was in the open" and was a "dirty old man type of thing."

¶ 4 After respondent reported he might be Monica's father, his paternity tests were rescheduled multiple times, partially attributable to respondent. Ultimately, respondent's 21 January 2020 paternity test confirmed he was Monica's father. Respondent met with DSS in early March of 2020. While at first respondent reported that he did not use drugs with the mother, shortly thereafter respondent admitted that he and the mother had "gotten high together" before she was pregnant. Respondent also told the social worker that the mother had texted him a few weeks before the meeting about "getting ... drugs." Respondent stated that though his "drug of choice" was cocaine, he had not used drugs in the six months preceding March of 2020.

¶ 5 The trial court held a hearing in the case on 24 June 2020. In the resulting juvenile order dated 22 July 2020, the trial court found that respondent, who has five older children, had history with Child Protective Services in both Illinois and Virginia relating to his older children from when he lived in those states. Respondent also reported that he had spent five months imprisoned in Illinois for leaving the state with his children without their mother's consent. At the time of the hearing, respondent was on probation for a Level 5 DWI. Respondent also had previous convictions for DWIs, which resulted in the loss of his driver's license, as well as convictions for possession of drug paraphernalia. Additionally, respondent had prior convictions in Virginia for soliciting for prostitution and using a vehicle to promote prostitution.

¶ 6 Respondent reported that he had completed a substance abuse assessment sometime in or before 2019, but he refused a drug screen on 11 June 2020. Though the court had not ordered visitation, the court found that DSS had arranged weekly visits via video conference. Respondent had only attended (or logged in to) three of the nine total video visits.

¶ 7 In that same order, however, the trial court established the primary plan as reunification with respondent and the secondary plan as adoption. To achieve reunification, the trial court ordered respondent to (1) complete a mental health and substance abuse assessment and follow all recommendations, (2) comply with random hair and urine drug screens, and (3) enter into an out-of-home family services agreement and a visitation plan with DSS. The court provided respondent with weekly visitation via phone or video.

¶ 8 The trial court entered another juvenile order on 22 October 2020. In that order, the trial court found the following: the day after the 24 June 2020 hearing, respondent submitted to hair and urine drug screens, both of which returned positive results indicating cocaine use.2 Shortly thereafter, respondent admitted that he had used 11 days prior to the 25 June 2020 screening. On 5 August 2020, respondent reported that he had continued using cocaine because he was stressed.

¶ 9 On 6 August 2020, respondent took a urine screen, which was negative for substances. On 18 August 2020, respondent completed a clinical assessment and was diagnosed with cocaine use disorder. Respondent indicated at that time he had been clean for three weeks. Toward the end of August, respondent completed part of his psychological evaluation/parenting capacity assessment. Dr. Bennett, who conducted the assessment, concluded respondent had difficulty acknowledging the nature of his substance use problem, struggled with defensiveness, impulse control, and poor judgment, and presented with "significant grandiosity and [had] limited insight into his short period of recovery." Dr. Bennett concluded that respondent's actions did not support his readiness to be a parent. Dr. Bennett made six recommendations: he concluded that respondent should (1) complete all random drug tests and have no refused tests, or those would count as positive tests; (2) attend counseling; (3) complete a substance use disorder assessment and follow treatment recommendations, including staying in contact with a treatment provider and attending substance abuse support groups; (4) obtain, maintain, and document stable housing and finances; (5) participate in treatment for substance use disorder; and (6) continue to be involved in Monica's life.

¶ 10 The trial court additionally found that respondent had attended seven virtual visits, failed to attend one visit, and that three visits were rescheduled because respondent did not confirm the visits in advance. Because of respondent's positive test in June of 2020 and his later admissions, the court concluded that respondent had previously provided false testimony to the court about his drug usage. Based upon all of the evidence, the trial court changed the permanent plan to adoption with the secondary plan as reunification with the father. The trial court ordered DSS to file a petition to terminate respondent's parental rights within 60 days.

¶ 11 On 5 November 2020, DSS filed a petition to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) (2021) (neglect), N.C.G.S. § 7B-1111(a)(2) (willfully leaving the child outside the home without making reasonable progress), and N.C.G.S. § 7B-1111(a)(5) (failure to legitimate). Respondent filed an answer wherein he admitted all of the allegations in the complaint. Respondent, however, requested to be heard regarding the best interests determination and stated that based on the best interests factors set forth in N.C.G.S. § 7B-1110 (2021), the trial court should not terminate respondent's parental rights.

¶ 12 On 10 February 2021, the trial court held a hearing on the termination petition. When questioned at the hearing, respondent "agreed ... that [DSS] ha[d] enough evidence to go forward and prevail" on the grounds asserted for termination in the termination petition. Respondent confirmed that he had not come to the hearing to be heard on the grounds for termination but wanted to be heard on the best interests determination. In an order entered 9 March 2021, the trial court recognized respondent's stipulation as to the circumstances supporting the grounds for termination, made findings of fact consistent with those alleged in the termination petition to which respondent stipulated, and concluded that grounds existed to terminate respondent's rights based on all three grounds alleged in the petition. The trial court also determined that terminating respondent's rights was in Monica's best interests. Therefore, the trial court terminated respondent's parental rights.

¶ 13 On appeal respondent argues (1) that the trial court erred by failing to make a sufficient finding that it had subject matter jurisdiction, and (2) that the findings of fact do not support the conclusions of law that grounds exist to terminate respondent's parental rights. We address each argument in turn.

I. Jurisdiction

¶ 14 Respondent first argues that the trial court did not make a finding pursuant to N.C.G.S. § 7B-1101 that it had jurisdiction, meaning the court could not exercise jurisdiction over the matter here. Respondent concedes that the record supports a conclusion that the trial court had jurisdiction over the matter. Respondent also recognizes that in the termination order, the trial court stated that "[t]he Court has jurisdiction over the parties and subject matter of this action." Nevertheless, respondent argues that the juvenile code, set forth in the North Carolina General Statutes, requires a specific finding of jurisdiction, and that the trial court failed to satisfy that statutory requirement here.

¶ 15 N.C.G.S. § 7B-1101 provides, in part,

The court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion. The court shall have jurisdiction to terminate the parental rights of any parent irrespective of the age of the parent. Provided, that before exercising jurisdiction under this Article, the court shall find that it has jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204.

N.C.G.S. § 7B-1101 (2021) (emphasis added). This...

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    • United States
    • North Carolina Supreme Court
    • July 15, 2022
    ...alteration in original) (quoting In re L.T. , 374 N.C. 567, 569, 843 S.E.2d 199 (2020) ). We reaffirmed this principle in In re M.S.L. , 380 N.C. 778, 2022-NCSC-41, 869 S.E.2d 662, concluding as follows:Here the trial court stated that it "has jurisdiction over the parties and the subject m......
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    • United States
    • North Carolina Supreme Court
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    • United States
    • North Carolina Supreme Court
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    ...In re K.N., ¶ 21 (first alteration in original) (quoting In re L.T., 374 N.C. 567, 569 (2020)). We reaffirmed this principle in In re M.S.L., 380 N.C. 778, 2022-NCSC-41, as follows: Here the trial court stated that it "has jurisdiction over the parties and the subject matter of this action.......

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