In re K.A.S.
| Citation | 2022 NCCOA 464 |
| Decision Date | 05 July 2022 |
| Docket Number | COA 21-757 |
| Parties | IN THE MATTER OF: K.A.S. |
| Court | Court of Appeal of North Carolina (US) |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 7 June 2022.
Appeal by Respondent Mother and Respondent Father from order entered 20 August 2021 by Judge Jeannette R. Reeves in Cleveland County District Court, Cleveland County, No. 18 JT 14
Charles E. Wilson, Jr., for Petitioner-Appellee Cleveland County Department of Social Services.
Womble Bond Dickinson (US) LLP, by Jacob S. Wharton and Ryan H Niland, for Appellee Guardian ad Litem.
Parent Defender Wendy C. Sotolongo, by Deputy Parent Defender Annick Lenoir-Peek, for Respondent-Appellant Mother.
Anne C. Wright for Respondent-Appellant Father.
¶ 1 Respondent Mother ("Mother") and Respondent Father ("Father") appeal from the trial court's termination of their parental rights. For the reasons explained below, we affirm the trial court's decision on the ground of dependency and cannot conclude that the trial court abused its discretion in terminating parental rights.
¶ 2 Kylie[1] was born on 2 October 2017. Before she was born, Father had been charged with felony sexual abuse of a minor child and, as a bond condition, was prohibited from unsupervised contact with any juvenile. Because of this, Mother was Kylie's primary caretaker before Cleveland County Department of Social Services ("DSS") intervention. Mother has ongoing mental health needs and has been diagnosed with mild intellectual disability and schizoaffective disorder.
¶ 3 When Kylie was born, DSS received a report alleging Mother had previously lost custody of another child. DSS instructed Mother not to stay with family members because of their own history of DSS involvement, but during each DSS visit Mother asked to meet at the family's house. On 6 February 2018, DSS filed a juvenile petition with the trial court and removed Kylie from Mother's custody.
¶ 4 Both parents entered into case plans with DSS. Mother's case plan required her to complete parenting and mental health assessments and comply with recommendations for treatment and also required her to secure proper housing. Father's case plan required him to complete a parenting assessment and a sex offender evaluation. In the eight months between DSS taking custody of Kylie and a scheduled adjudication hearing in October 2018, Mother completed a parenting education program and psychological evaluation and was complying with mental health treatment and medication recommendations. Father did not complete his sex offender assessment or parenting classes during that time. Both parents visited Kylie regularly, and Father brought food and gifts during his visits, attended doctor's visits, and was "clearly bonded" with her.
¶ 5 However, Mother was unable to secure safe and stable housing, and Kylie could not be placed with Father because of his bond restrictions. Mother and Father were unable to identify relatives who could provide proper care for Kylie. On 10 October 2018, Mother and Father entered into a consent order adjudicating Kylie as dependent.
¶ 6 A year later, in October 2019, Mother had made progress sufficient to be allowed unsupervised visits and by December was allowed overnight visits. Mother had moved into a house owned by Father's uncle, and Father had helped complete repairs to bring the house to community standards, including repairing the roof, fixing the ceiling, and doing electrical work.
¶ 7 On 30 September 2019, Father was arrested and incarcerated due to his failure to appear for a court hearing. He had completed the sex offender assessment only shortly before his incarceration and did not complete the court-ordered parenting classes. While Father was incarcerated, he called during Mother's visitation with Kylie to speak with Kylie and asked her foster parents how she was doing. Father remained incarcerated through the date of the termination hearing, and at the time of the hearing had no pending trial or release date.
¶ 8 By February 2020, Mother had stopped taking her medication. Mother also took Kylie to visit her family, even though her social worker had told her not to visit their residence with Kylie or leave her unsupervised with them because of DSS's history with those family members. DSS was also concerned that unknown individuals were coming in and out of the house and that a social worker had smelled alcohol during a home visit. On 28 February 2020, DSS learned that the power to Mother's house was disconnected, and it remained disconnected for more than a year. Between 13 March 2020 and 13 July 2021, Mother tested positive for cocaine and marijuana and skipped or refused court-ordered drug testing. Although Mother denied taking cocaine, she admitted that she had been around family members who had it.
¶ 9 On 22 September 2020, two years and seven months after removing Kylie from Mother's custody, DSS petitioned to terminate both Mother's and Father's parental rights. The trial court heard the petition on 2 June and 14 July 2021. It found that neither parent had completed their case plan, that Mother was unable to safely parent Kylie without an appropriate support system and had not demonstrated a willingness to establish such a system, that Father had not demonstrated a willingness or ability to provide proper care or supervision and had not established a safe and stable home prior to his incarceration, and that Father was incarcerated and his incarceration would continue for the foreseeable future.
¶ 10 The court found that grounds existed to terminate Mother's and Father's parental rights under neglect, willful failure to make reasonable progress, and dependency. It found that termination was in Kylie's best interest and terminated the parents' rights. Mother and Father appeal.
¶ 11 A hearing on a petition to terminate parental rights is a two-stop process: adjudication followed by disposition. In re D.T.H., 378 N.C. 576, 2021-NCSC-106, ¶ 6. During the adjudicatory phase, the trial court hears the evidence and makes findings of fact to determine if any of the grounds for termination enumerated in N.C. Gen. Stat. § 7B-1111(a) (2021) exist. Id. If the court finds that one or more of those statutory grounds exists, it proceeds to the dispositional phase, during which it determines, in its discretion, whether terminating the parent's rights is in the juvenile's best interest. In re H.N.D., 265 N.C.App. 10, 13, 827 S.E.2d 329, 332 (2019).
¶ 12 We review the trial court's adjudication to determine whether the findings are supported by clear, cogent, and convincing evidence and whether the findings in turn support the conclusions of law. Id. Unchallenged findings of fact are binding on appeal. In re S.C.L.R., 378 N.C. 484, 2021-NCSC-101, ¶ 9. We review the trial court's conclusions of law de novo. Id. at ¶ 15. With regards to the dispositional phase, we review the "trial court's decision that termination is in the best interests of the child for abuse of discretion, and will reverse only where the trial court's decision is 'manifestly unsupported by reason.'" H.N.D., 265 N.C.App. at 13, 827 S.E.2d at 332 (citation omitted).
¶ 13 Mother and Father appeal, each bringing separate issues corresponding to termination of their individual parental rights. We address each in turn.
¶ 14 Mother's counsel has filed a no-merit brief on her behalf pursuant to Rule 3.1(e) of our Rules of Appellate Procedure. In accordance with that Rule, counsel has identified issues in the record that might arguably support the appeal and has stated why each issue lacks merit or would not alter the ultimate result. N.C. R. App. P. Rule 3.1(e) (2022). Mother's counsel has also provided Mother with copies of the nomerit brief, trial transcript, record on appeal, and a letter advising Mother that she has the option of filing a pro se brief. Mother has not filed a pro se brief in this case.
¶ 15 We independently review issues contained in a no-merit brief filed pursuant to Rule 3.1(e). In re L.E.M., 372 N.C. 396, 402, 831 S.E.2d 341, 345 (2019). After careful review of the record, we are satisfied that the trial court's order as to Mother was supported by the evidence and based on proper legal grounds.
¶ 16 Counsel first directs our attention to the question of whether the trial court's findings of fact are supported by clear and convincing evidence, noting that the social worker who testified as to Mother's substance abuse testified that Mother tested positive for illegal substances and refused tests starting in February 2021, and the trial court's order specifies at least one drug test result not specified by the social worker.
¶ 17 We will disregard findings and portions of findings that are not supported by evidence, but if other findings are adequate to support the trial court's conclusions of law we will affirm the trial court's order. In re R.G.L., 379 N.C. 452, 2021-NCSC-155, ¶ 25. The exact dates of each of Mother's drug tests were unnecessary to support the trial court's conclusions in this case. The social worker's testimony supports the finding that Mother's "continued drug use . . . has become a significant barrier to the reunification process." Further review of the trial court's findings does not reveal unsupported findings that would require reversal.
¶ 18 Counsel next directs our attention to the...
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