In re D.L.A.D.

• Decision Date: 20 November 2020
• Docket Number: No. 123A20,123A20
• Citation: 375 N.C. 565,849 S.E.2d 811
• Parties: In the MATTER OF: D.L.A.D.
• Court: North Carolina Supreme Court

375 N.C. 565

849 S.E.2d 811

In the MATTER OF: D.L.A.D.

No. 123A20

Supreme Court of North Carolina.

Filed November 20, 2020

Surratt Thompson & Ceberio PLLC, by Christopher M. Watford, for petitioner-appellees.

Richard Croutharmel, Raleigh, for respondent-appellant mother.

NEWBY, Justice.

Respondent-mother appeals from the trial court's order terminating her parental rights to D.L.A.D.,¹ a minor. We affirm the trial court's order.

Dillon was born to respondent-mother in October 2007 following her brief relationship with petitioner-father. Petitioner-father did not know that he was Dillon's father until 2013, when respondent-mother visited him at his place of employment and requested that he take a DNA test. Petitioner-father agreed, and the test confirmed his paternity. When petitioner-father learned he was Dillon's father, he went to the Guilford County child support agency and entered into a voluntary support agreement.

Petitioner-father met with Dillon for the first time in May 2015 and began visitation shortly thereafter. In August 2015, Dillon visited petitioner-father and arrived wearing clothing that was soiled, stained, torn, and did not fit properly. Additionally, on at least one visit, he was found to have an excessive amount of earwax in his ears. On 5 November 2015, after respondent-mother violated a court order and failed a drug test, petitioner-father was granted custody of Dillon in accordance with an emergency custody order. From then on, Dillon resided primarily with petitioner-father and his wife (petitioners) in Davidson County.

In early 2016, respondent-mother began conducting supervised visits with Dillon. But these visits eventually ceased, and respondent-mother indicated that she wanted her parental rights to Dillon to be terminated. On 8 March 2016, petitioner-father filed a petition in District Court, Surry County to terminate respondent-mother's parental rights to Dillon. On 16 December 2016, the trial court entered an order terminating respondent-mother's parental rights based on neglect. See N.C.G.S. § 7B-1111(a)(1) (2019). Respondent-mother appealed. The Court of Appeals vacated the termination order after concluding that the trial court erred by terminating respondent-mother's parental rights because it lacked subject matter jurisdiction. In re D.L.A.D. , 2017 WL 2950772 at *3 (N.C. Ct. App. 2017) (unpublished).

On 2 May 2019, petitioners filed a new petition to terminate respondent-mother's parental rights in Davidson County on the grounds of neglect and dependency. See N.C.G.S. § 7B-1111(a)(1), (6) (2019). Respondent-mother filed an answer denying that grounds existed to terminate her parental rights. On 2 December 2019, the trial court entered an order in which it determined grounds existed to terminate respondent-mother's parental rights based on neglect under N.C.G.S § 7B-1111(a)(1). The court also concluded that it was in Dillon's best interests that respondent-mother's parental rights be terminated. The trial court thus terminated her parental rights. Respondent-mother appeals.

Respondent-mother argues that several of the trial court's findings of fact are not supported by the evidence and that the court erred by concluding that grounds existed to terminate her parental rights. A termination of parental rights proceeding consists of an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery , 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudicatory stage, the petitioner bears the burden of proving by "clear, cogent, and convincing evidence" the existence of one or more grounds for termination under section 7B-1111(a) of our General Statutes. N.C.G.S. § 7B-1109(f) (2019). We review a trial court's adjudication "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery , 311 N.C. at 111, 316 S.E.2d at 253 (citing In re Moore , 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982) ).

In this case the trial court concluded that grounds existed to terminate respondent-mother's parental rights based on neglect. Section 7B-1111(a)(1) provides for termination based on a finding that "[t]he parent has ... neglected the juvenile" within the meaning of N.C.G.S. § 7B-101(15). Section 7B-101(15) defines a neglected juvenile as one "whose parent, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline; ... or who lives in an environment injurious to the juvenile's welfare[.]" N.C.G.S. § 7B-101(15) (2019). To terminate parental rights based on neglect, "if the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent." In re D.L.W. , 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard , 311 N.C. 708, 713–15, 319 S.E.2d 227, 231–32 (1984) ). "When determining whether such future neglect is likely, the district court must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing." In re Z.V.A. , 373 N.C. 207, 212, 835 S.E.2d 425, 430 (2019) (citing Ballard , 311 N.C. at 715, 319 S.E.2d at 232 ).

Here Dillon was not in respondent-mother's custody at the time of the termination hearing and had not been for close to four years. Additionally, because the Department of Social Services was never involved with the parties, no petition alleging neglect was ever filed, and Dillon was never adjudicated neglected. The trial court did, however, find that Dillon lived "in an environment injurious to his welfare when he was living with Respondent Mother." Respondent-mother does not challenge this finding, and it is therefore binding on appeal. See In re T.N.H. , 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019) ("Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal."). Thus, we conclude that the trial court's findings demonstrate that Dillon was previously neglected by respondent-mother.

We next consider whether the trial court's findings demonstrate that neglect would likely be repeated if Dillon were returned to respondent-mother's care. The trial court made the following relevant findings of fact:

9. At the time [Dillon] came into the care of Petitioners [at age seven-and-a-half], he was able to demonstrate how to crush and snort pills. He did not know how to tie his shoes. There is conflicting testimony as to whether he knew how to use any utensils to eat with but the [c]ourt finds that he was using his fingers to eat his food when he came into Petitioner[s]’ custody.

10. Sometime in early 2016, Respondent Mother was to have regular supervised visits that were to be supervised by her sister[.] Only a few of those visits occurred and then they stopped. There were [c]ourt hearings in Surry County, North Carolina regarding custody and visitation, and possibly child support. At one of those hearings, for an unknown subject matter, the Respondent Mother, during a court recess, approached the child's therapist ... and did in fact grab her by the arm, according to [the therapist's] testimony. Respondent Mother denies having done this.

11. During a hearing, Respondent Mother stated that she wanted her rights to be terminated and did not want to know anything further about the minor child, or words to this [e]ffect.

12. Respondent Mother, under oath, denied that [Dillon] had ever[ ] witnessed her crushing pills and snorting them. She stated the last time she had done this was before she had children. She stated she has not used cocaine in the past five years, but she had used it before she had children. However, she was forced to admit on cross examination that she did test positive for cocaine in the fall of 2015.

13. Respondent Mother lives with her boyfriend, [G.H.]. She started dating him sometime around December 2014. She testified that [G.H.] has a prescription for pain medication and instead of taking the medication in the prescribed manner he crushes the pills and snorts them. He has done this the entire time she has known him and he has in fact done this in front of the children.

14. Respondent Mother, following the positive cocaine result from the hair follicle test, took a urine test on her own volition. The test was negative.

15. Respondent mother told [petitioner-father] that she would surrender her parental rights in exchange for the sum of $25,000.00. She denies that she ever lowered that price.

16. There was a period of time of more than twelve months that Respondent mother did not attempt to contact her sister to arrange supervised visits that she was awarded but did beg[i]n talking about visitation again sometime near July 2018.

17. There was some communication to the Petitioners about visitation. Since early 2016, the Petitioners would respond to Respondent Mother's requests with something to the effect that they were busy or that the minor child did not want to see the Respondent Mother.

18. There is evidence that some of the circumstances have changed since the fall of 2015. Respondent mother was awarded, and now receives disability as of May 2019. The minor child is in the primary care of Petitioners. There is no evidence that the condition of Respondent mother's home has changed. [G.H.] still resides in the home and he still snorts his pain medication.

19. In evaluating the credibility of the testimony, the [c]ourt finds and believes Respondent Mother had a substance abuse problem. There is no evidence that she has received any treatment for that problem.

....

22. As to the grounds alleged in N.C.G.S. Section 7B-1111(a)(1), due to the lack of change in the Respondent mother's home, the Court finds that there is a high likelihood of repetition of neglect if the child was to return to her home.

We review only those findings necessary to support the trial court's conclusion that grounds...