In re C.H.

• Decision Date: 04 June 2013
• Docket Number: No. COA13–127.,COA13–127.
• Citation: 745 S.E.2d 374
• Court: North Carolina Court of Appeals
• Parties: In the Matter of C.H. & D.H.

745 S.E.2d 374

In the Matter of C.H. & D.H.

No. COA13–127.

Court of Appeals of North Carolina.

June 4, 2013.

Appeal by respondent-father from orders entered 16 November 2012 by Judge Joseph Moody Buckner in Chatham County District Court. Heard in the Court of Appeals 7 May 2013.

Northen Blue, LLP, by Carol J. Holcomb and Samantha H. Cabe for petitioner-appellee, Chatham County Department of Social Services.

Peter Wood for respondent-appellant, father.¹

Amanda Armstrong, for the guardian ad litem.

HUNTER JR., ROBERT N., Judge.

Respondent-father appeals from orders terminating his parental rights to C.H. (“Chad”) and D.H. (“Dana”).² We affirm.

I. Procedural History

On 22 June 2011 Durham County Department of Social Services filed a petition alleging that Chad and Dana, the minor children of respondent-father, were neglected and dependent. The petition alleged that the juveniles were in danger in light of respondent-father's involvement in the drug trade and his possession of an unsecured firearm accessible to the children. The petition further alleged that respondent-father's “house was filthy with old food and clutter; [that] the children were not bathed; [and that] the father asks anyone and everyone to watch his children.” On 7 October 2011 the Durham County District Court adjudicated the juveniles dependent and neglected, but determined it was in the best interests of the children to remain in the custody of their mother under a court-ordered protection plan. The court also transferred venue to Chatham County, where the mother resided. While the children were living with their mother, the Chatham County Department of Social Services (“DSS”) received a report of serious domestic violence in the home of the mother. Specifically, DSS learned that the mother's boyfriend, who was living in the home, had “swung a baseball bat” at the mother, “threatened to burn the house down with the children in it,” and was verbally abusive to the juveniles. On 8 March 2012, the Chatham County District Court found that the children were “exposed to a substantial risk of physical injury,” and entered an order placing the children in the legal and physical custody of DSS. The next day, DSS filed a petition alleging the children to be dependent and neglected. The district court ultimately found the children dependent on 26 April 2012. During this time, respondent-father was incarcerated in federal prison.

The juvenile's mother voluntarily relinquished her parental rights on 19 July 2012. On 10 August 2012 DSS filed petitions to terminate the parental rights of respondent-father to Chad and Dana. After a hearing on 25 October 2012, the trial court terminated respondent-father's parental rights, entering termination orders on 16 November 2012.³ Respondent-father filed timely notice of appeal.

II. Analysis

On appeal, respondent-father challenges several of the trial court's findings of fact on the basis that they were unsupported by clear, cogent, and convincing evidence. Specifically, respondent-father contends that the trial court impermissibly “delegate[d] its fact finding duties” by incorporating court reports and previous orders. Respondent-father additionally alleges that the trial court's findings do not support its conclusion that grounds for termination existed. Finally, respondent-father argues that the trial court abused its discretion in terminating his parental rights. We disagree.

A. Findings of Fact & Grounds for Termination

N.C. Gen.Stat. § 7B–1111(a) (2011) sets out statutory grounds for termination of parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990). In reviewing a trial court's order terminating parental rights, this Court must determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support the trial court's conclusions of law. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 58–59 (2008), aff'd per curiam,363 N.C. 368, 677 S.E.2d 455 (2009). “The trial court's conclusions of law are fully reviewable de novo by the appellate court.” Id. at 146,669 S.E.2d at 59 (quotation marks and citation omitted).

Respondent-father first argues that three of the trial court's findings of fact are not supported by clear, cogent, and convincing evidence. Specifically, respondent-father asserts that “the court could not simply adopt prior court orders and court reports as findings of fact. The court was required to independently find the facts and could not delegate that authority.” Respondent-father further contends that “[a]ny findings or conclusions based on these incorporated documents [are] insufficient as a matter of law.”

In making this argument, respondent-father relies on In re Harton, 156 N.C.App. 655, 577 S.E.2d 334 (2003), and similar cases. In Harton, our Court acknowledged that the trial court in juvenile proceedings may not simply incorporate the allegations against a parent, but that it must make clear that it has found the ultimate facts necessary to support its conclusions of law based upon its own reasoning and analysis. Id. at 660, 577 S.E.2d at 337. The trial court in Harton did not make sufficient independent findings of fact, and this Court vacated the trial court's permanency planning order, explaining:

[T]he trial court in its findings of fact in the Permanency Planning Review Order found that [the mother] had no intention of separating from [her boyfriend] and adopted DSS and guardian ad litem reports as the remaining facts. The trial court, however, made no findings of fact under the specific criteria provided in section 7B–907(b). By stating a single evidentiary fact and adopting DSS and guardian ad litem reports, the trial court's findings are not specific ultimate facts ... sufficient for this Court to determine that the judgment is adequately supported by competent evidence.

Id. (quotation marks and citation omitted) (alterations in original).

In the case before us, we acknowledge that the trial court took judicial notice of facts contained in a previous order terminating respondent-father's rights to another child, and incorporated by reference reports from DSS and the guardian ad litem, finding “within [them] credible and factually sufficient evidence to support entry of this order.” However, the trial court did not “simply recite allegations” or find “a single evidentiary fact.” Instead, the trial court employed a process of “logical reasoning,” which is evidenced through its having made several independent findings of fact.

We have held that a trial court may consider a DSS report as evidence and incorporate it by reference, so long as the trial court does not use the DSS report as a substitute for its own independent review. In re K.S., 183 N.C.App. 315, 324, 646 S.E.2d 541, 546 (2007); In re D.L., 166 N.C.App. 574, 582–83, 603 S.E.2d 376, 382 (2004). The trial court may also consider other relevant orders and documents in related proceedings. In re J.W., 173 N.C.App. 450, 456, 619 S.E.2d 534, 540 (2005). Accordingly, the trial court's decision to find credible and then subsequently incorporate these documents was permissible and did not result in a delegation of the trial court's fact-finding duty. This argument is without merit.⁴

Respondent-father next argues that the trial court's conclusion that grounds for termination exist is not supported by its findings of fact. We disagree.

A parent's rights to a child may be terminated upon a finding that “[t]he parent has abused or neglected the juvenile.” N.C. Gen.Stat. § 7B–1111(a)(1). A neglected juvenile is

[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.

N.C. Gen.Stat. § 7B–101(15) (2011).

In determining neglect, a court must consider “the fitness of the parent to care for the child at the time of the termination proceeding.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). When a parent does not have custody of the child, “the trial court must also consider evidence of changed conditions in light of the history of neglect by the parent and the probability of a repetition of neglect.” In re Pierce, 146 N.C.App. 641, 651, 554 S.E.2d 25, 31 (2001). Relevant to the determination of probability of repetition of neglect is whether the parent has “made any meaningful progress in eliminating the conditions that led to the removal of [the] children.” In re Leftwich, 135 N.C.App. 67, 72, 518 S.E.2d 799, 803 (1999). Neglect exists where a parent has failed in the past to meet the child's physical and economic needs and it appears that the parent will not, or cannot, correct those inadequate conditions within a reasonable amount of time. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984). “[T]he trial judge may [also] consider ... a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.” In re Apa, 59 N.C.App. 322, 324, 296 S.E.2d 811, 813 (1982).

Incarceration, by itself, is insufficient to establish neglect in a termination of parental rights case, but it is relevant to whether a child is neglected. See In re J.K.C., ––– N.C.App. ––––, ––––, 721 S.E.2d 264, 271 (2012). Furthermore, incarceration, standing alone, “is neither a sword nor a shield in a termination of parental rights decision.” See In re C. W., 182 N.C.App. 214, 220, 641 S.E.2d 725, 730 (2007) (quotation marks and citation omitted).

In this case, the trial court made, inter alia, the following findings of fact:

9. Respondent father has a...