In re K.M.K.

• Decision Date: 07 March 2023
• Docket Number: COA22-490
• Parties: In the Matter of: K.M.K.
• Court: North Carolina Court of Appeals

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In the Matter of: K.M.K.

No. COA22-490

Court of Appeals of North Carolina

March 7, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 22 February 2023.

Appeal by Respondent-Mother from order entered 17 March 2022 by Judge Burford A. Cherry in Burke County District Court No. 20 JT 56

Amanda C. Perez for Petitioner-Appellee Burke County Department of Social Services.

Smith Anderson, Blount, Dorsett, Mitchell &Jernigan, L.L.P., by Amelia L. Serrat and Michael W. Mitchell, for Appellee Guardian ad Litem.

Freedman Thompson Witt Ceberio &Byrd PLLC, by Christopher M. Watford, for Respondent-Appellant Mother.

COLLINS, Judge.

Respondent-Mother appeals from the trial court's order terminating her parental rights. Mother argues that the trial court's findings of fact do not support its conclusions of law that multiple grounds existed for terminating Mother's parental rights to her juvenile son, Kevin.^[1] Additionally, Mother argues that the trial court abused its discretion by failing to consider Kevin's relationship with his maternal grandmother when it determined that terminating Mother's parental rights to Kevin was in Kevin's best interests. Because the trial court's findings of fact support its conclusion of law that grounds existed to terminate Mother's parental rights to Kevin, and because the trial court did not abuse its discretion in determining that terminating Mother's parental rights was in Kevin's best interests, the trial court's order is affirmed.

I. Factual Background and Procedural History

Kevin was born on 22 November 2019 in Burke County, North Carolina. At birth, Kevin's urine tested positive for amphetamines. On 28 November 2019, Kevin was placed in a temporary safety placement with his maternal step-grandfather, where he remained until 29 December 2019, when he was placed with Mother's family friend. On 4 March 2020, the family friend informed the Burke County Department of Social Services ("DSS") that she could no longer care for Kevin. Burke County DSS identified Kevin's maternal uncle and aunt as a possible placement for Kevin but could not contact Mother to obtain approval. On 4 March 2020, Burke County DSS filed a juvenile petition alleging that Kevin was a neglected and dependent juvenile and obtained an order for nonsecure custody identifying Kevin's maternal uncle and aunt as appropriate caregivers. Kevin has remained with his maternal uncle and aunt since then.

On 30 April 2020, the trial court entered a Juvenile Consent Adjudication Order adjudicating Kevin to be "a neglected juvenile pursuant to N.C. Gen. Stat. § 7B-101(15) in that the juvenile's parent, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline for the juveniles and the juveniles lived in an environment injurious to the juvenile's welfare." The matter was transferred to Caldwell County due to a conflict of interest, where a disposition hearing was held on 7 and 8 July 2020. On 7 August 2020, the trial court entered a Juvenile Disposition Order, making the following findings of fact:

36. . . . [Mother] has made little progress towards addressing the issues that led to the juvenile coming into custody. She entered into an Out-of-Home Family Services Agreement with the Department [of Social Services] on 4/29/2020. Areas of concern include the following: mental health and substance abuse; parenting skills; employment; and housing.

37. A referral to complete a mental health/substance abuse assessment was sent to A Caring Alternative and One Love Services on 1/9/20 and 3/16/20. At the direction of the Department, [Mother] contacted A Caring Alternative on 3/10/20 regarding the assessment. She was advised to call or come by between 8:00 a.m. to 11:00 a.m. to complete the assessment. She has not scheduled an appointment or completed the assessment. She has sporadically submitted to random drug screens as set forth in the Department's report. She used illegal substances during her pregnancy resulting in the juvenile testing positive at birth. She continues to use illegal substances as evidenced by the numerous positive drug screen results set forth in the Department's report.

38. [Mother] was referred to parenting education on 3/16/20. She has not scheduled an appointment. An additional referral to the Caldwell County Committee for Healthy Families has been submitted.

39. [Mother] is currently unemployed. She has no verifiable source of income. She has not shown proof that she is seeking employment. She does not have independent transportation. ....

52. The issues that led to the Department's involvement with this family continue to exist.

53. The juvenile continues to require more adequate care than Respondent parents can provide at this time, and the juvenile needs a more secure placement than Respondent parents can provide at this time.

The trial court ordered:

15. [Mother] shall enter into an Out-of-Home Family Services Agreement with the Department and comply with the terms of such case plan, including, but not limited to, the following: (a) obtain a Comprehensive Clinical Assessment (CCA) with a substance abuse component and comply with any recommendations; (b) submit to random urine and hair follicle drug screens as requested by the Department; (c) complete an age appropriate parenting program; and (d) obtain and maintain employment, independent housing, and suitable transportation.

On 27 October 2020, a permanency planning hearing was held where Caldwell County DSS reported that Mother "has made little to no progress towards addressing the issues that led to the juvenile coming into DSS custody[,]" and recommended that the court "cease reunification efforts and establish a primary permanent plan of adoption ...." On 12 November 2020, the trial court entered a Juvenile Permanency Planning Order finding that Mother "has only made limited progress consisting of starting, but not completing, two online parenting classes. She has limited employment. She has received no substance abuse and/or mental health treatment. She continues to use illegal substances and most recently used two days prior to [the] hearing." The trial court ordered the primary permanent plan for Kevin to be adoption. The matter was transferred back to Burke County in December 2020 when the conflict of interest no longer existed.

On 5 May 2021, Burke County DSS filed a petition to terminate Mother's parental rights, alleging:

20. Pursuant to N.C. G.S. § 7B-1111(a)(1), the respondent parents have neglected the minor child pursuant to the meaning of neglect as defined under NC. Gen. Stat. § 7B-101 (15) and there is a high likelihood that the respondents would continue to neglect the minor child if she were returned to the respondents' care .... ....

21. Pursuant to N.C. Gen. Stat. §7B-1111(a)(2), the respondent parents have willfully left the minor child in foster care or placement outside of the home for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions that led to the removal of the minor child. ....

22. Pursuant to N.C. Gen. Stat. §7B-1111(a)(3), the minor child has been placed in the custody of the Burke County Department of Social Services continuously since on or before March 4, 2020, and the respondent parents, for a continuous period of six (6) months next preceding the filing of the motion, have willfully failed for such a period to pay a reasonable portion of the cost of care for the minor child, although physically and financially able to do so.

Adjudication and disposition hearings were conducted on 19 August 2021, 3 September 2021, and 10 December 2021. After hearing arguments and receiving evidence, the trial court entered a Termination of Parental Rights Order, concluding that grounds for terminating Mother's parental rights to Kevin existed pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (2), and (3), and that terminating Mother's parental rights to Kevin was in Kevin's best interests. Mother appealed.

II. Discussion A. Standard of Review

"Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M. 374 N.C. 88, 94, 839 S.E.2d 792, 796-97 (2020) (citation omitted). "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 the General Statutes." In re A.U.D., 373 N.C. 3, 5-6, 832 S.E.2d 698, 700 (2019) (citing N.C. Gen. Stat. § 7B-1109(f)). We review a trial court's adjudication of grounds to terminate parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quotation marks and citations omitted). "A trial court's finding of fact that is supported by clear, cogent, and convincing evidence is deemed conclusive even if the record contains evidence that would support a contrary finding." In re B.O.A., 372 N.C. 372, 379, 831 S.E.2d 305, 310 (2019) (citation omitted). Unchallenged findings of fact are "deemed supported by competent evidence and are binding on appeal." In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019) (citations omitted). "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C., 373...