In re A.J.P.
| Decision Date | 20 November 2020 |
| Docket Number | No. 452A19,452A19 |
| Citation | 849 S.E.2d 839,375 N.C. 516 |
| Parties | In the MATTER OF: A.J.P. |
| Court | North Carolina Supreme Court |
Law Offices of Jamie A. Stokes, PLLC, by Jamie A. Stokes, for petitioner-appellee Madison County Department of Social Services.
Cranfill Sumner & Hartzog LLP, Raleigh, by Laura E. Dean, for appellee Guardian ad Litem.
Wendy C. Sotolongo, Parent Defender, by J. Lee Gilliam, Assistant Parent Defender, for respondent-appellant father.
Respondent-father appeals from the trial court's order terminating his parental rights in the minor child A.J.P. (Ava).1 On appeal respondent-father argues (1) that the trial court abused its discretion by denying his motion to continue the termination hearing; (2) that some findings of fact are not supported by clear, cogent, and convincing evidence and that the remaining findings are insufficient to support the trial court's conclusions of law; (3) that sufficient grounds did not exist to terminate his parental rights for having willfully left Ava in foster care or placement outside the home for more than twelve months without making reasonable progress under the circumstances to correct the conditions that led to her removal, see N.C.G.S. § 7B-1111(a)(2) (2019) ; and (4) that sufficient grounds did not exist to conclude he had willfully abandoned Ava, see N.C.G.S. § 7B-1111(a)(7). After careful review, we affirm.
Ava was born in July 2016. On 13 July 2016, the Madison County Department of Social Services (DSS) obtained nonsecure custody of Ava and filed a juvenile petition alleging that Ava was a neglected and dependent juvenile. The juvenile petition alleged that Ava was born "possibly premature" with a low birth weight and was admitted into the neonatal intensive care unit (NICU). Ava's meconium tested positive for cocaine, benzodiazepines, and clonazepam. Ava's mother had received no prenatal care and tested positive for cocaine and benzodiazepines. Ava's mother was on probation for a felony possession of cocaine conviction. The putative father, who was Ava's mother's boyfriend at the time, was on probation for a felony hit-and-run conviction. The juvenile petition further alleged that Ava's mother and putative father were unable to care for Ava and lacked an appropriate alternative child care arrangement.
The trial court held a hearing on the juvenile petition on 8 August 2016 and later entered an order adjudicating Ava to be a dependent juvenile. The trial court set the permanent plan to reunification with a concurrent plan of adoption. Following a hearing held on 12 October 2016, the trial court entered a disposition order on 14 November 2016. The trial court adopted the developed and signed case plan for Ava's mother and the putative father but found that they had made minimal efforts on the case plan. Ava remained in DSS custody.
After a hearing on 6 April 2017, the trial court entered a permanency planning order on 4 May 2017 that changed the permanent plan to adoption, with a secondary plan of guardianship. On 6 April 2017, Ava's mother relinquished her parental rights to Ava. Following a hearing on 13 July 2017, the trial court entered a permanency planning order on 23 October 2017. The trial court found that the putative father had indicated he was willing to relinquish his parental rights to Ava but had failed to maintain contact with DSS. The trial court ordered DSS to proceed with filing a petition to terminate the putative father's parental rights if a relinquishment was not received. On 25 July 2017, the putative father relinquished his parental rights to Ava; however, as later discovered, he is not the biological father.
After a hearing on 27 October 2017, the trial court entered a permanency planning order on 13 November 2017 ordering DSS to proceed with filing a motion to terminate the parental rights of any unknown fathers, and DSS did so on 18 January 2018. DSS alleged that any unknown fathers had willfully left Ava in foster care or placement outside the home for more than twelve months without making reasonable progress under the circumstances to correct the conditions that led to her removal, see N.C.G.S. § 7B-1111(a)(2), and had willfully abandoned Ava, see N.C.G.S. § 7B-1111(a)(7).
Ava was born in July 2016. A year and three months later, respondent-father was incarcerated on 9 October 2017 on convictions for possession of a firearm by a felon and felony possession of cocaine with a projected release date of 20 September 2019. Two months after DSS filed its motion, in March of 2018, respondent-father contacted DSS to indicate that he might be Ava's biological father. In May 2018, a paternity test confirmed that respondent-father was Ava's biological father.
On 13 June 2018, the trial court ordered DSS to facilitate a home study on two individuals as possible placement providers for Ava. DSS made reasonable efforts to secure a relative placement on behalf of respondent-father, but could not do so. On 2 August 2018, DSS sent an out-of-home family services agreement to respondent-father. The agreement required him to (1) complete a mental health assessment and substance use assessment and follow recommendations; (2) complete a domestic violence evaluation; (3) not incur new legal charges; (4) keep DSS informed of the outcomes of pending and future charges; (5) follow recommendations of probation and parole; (6) keep $25.00 in his possession at all times to pay for random urinary drug screens for six months; (7) remain substance free; (8) keep DSS informed of all prescribed medications; (9) obtain and maintain employment and show financial ability to meet Ava's basic needs for six months; (10) obtain and maintain housing for six months; (11) attend Child and Family Team meetings and permanency planning meetings, as well as cooperate with DSS; (12) be respectful to DSS staff; (13) keep DSS informed of any changes of address and/or phone number; (14) complete parenting classes; and (15) follow and adhere to the visitation plan. Six weeks later, respondent-father signed the agreement on 24 September 2018 and returned it.
On 24 September 2018, Ava's mother and respondent-father testified in a hearing, and the trial court entered a permanency planning order on 31 October 2018. In its findings, the trial court described Ava's mother's testimony that she and respondent-father had a sexual relationship which resulted in her pregnancy. Their relationship involved the use of controlled substances, and respondent-father was the supplier of her controlled substances. Ava's mother testified that she had a conversation with respondent-father in March 2016 when she learned she was pregnant and that respondent-father knew she was pregnant. Respondent-father continued to supply her with controlled substances during her pregnancy. In addition, Ava's mother testified that she contacted respondent-father from the hospital when Ava was born and that respondent-father bought Ava gifts from time to time but did not provide child support. Respondent-father, on the other hand, testified that he had no knowledge of Ava's birth until September 2017, after a conversation with Ava's mother. Six months later, in March of 2018, he contacted DSS regarding Ava, who was almost two years old by that time.
In a later proceeding on 1 July 2019, the trial court clarified by an oral finding of fact that, among other things, respondent-father knew of the child during the pregnancy, thereby finding the mother's testimony credible. In the 31 October 2018 order, the trial court relieved DSS of further reasonable efforts to reunify Ava with respondent-father, concluded that the permanent plan remained adoption, and ordered DSS to file a motion to terminate respondent-father's parental rights.
On 31 October 2018, the same day the order was filed, DSS filed a motion to terminate respondent-father's parental rights. The termination hearing was continued on 17 December 2018, 16 January 2019, and 21 February 2019. On 4 April 2019, DSS filed a petition to terminate respondent-father's parental rights. DSS alleged that respondent-father had willfully left Ava in foster care or placement outside the home for more than twelve months without making reasonable progress to correct the conditions that led to her removal, see N.C.G.S. § 7B-1111(a)(2), and willfully abandoned Ava, see N.C.G.S. § 7B-1111(a)(7). That same day, the termination hearing was continued to 16 May 2019.
On 16 May 2019, counsel for respondent-father withdrew from representing respondent-father due to a conflict of interest, and a new attorney was appointed to represent respondent-father. The trial court continued the termination hearing again until 1 July 2019 to allow the new attorney to prepare for the hearing.
On 1 July 2019, the trial court held a hearing on the petition to terminate respondent-father's parental rights. At the beginning of the termination hearing, respondent-father's attorney requested a continuance, indicating that he needed more time to review the permanency planning order filed on 31 October 2018 because it was not included in the court file that he copied at the time of his appointment. The trial court denied his motion to continue.
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