In re L.I.C.M.

• Docket Number: COA22-650
• Decision Date: 06 June 2023
• Parties: IN THE MATTER OF: L.I.C.M.; C.E.M., Minor Juveniles
• Court: North Carolina Court of Appeals

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IN THE MATTER OF: L.I.C.M.; C.E.M., Minor Juveniles

No. COA22-650

Court of Appeals of North Carolina

June 6, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 10 May 2023.

Appeal by respondent-appellant-father from order entered 26 April 2022 by Judge V.A. Davidian, III, in Wake County District Court Nos. 19JT140, 19JT141.

J Thomas Diepenbrock, for respondent-appellant-father.

Wake County Attorney's Office, by Senior Assistant County Attorney Mary Boyce Wells, for the petitioner-appellee Wake County Health & Human Services.

Michelle FormyDuval Lynch for the appellee Guardian ad Litem.

GORE JUDGE.

Respondent-father appeals the termination of his parental rights of Luis and Celia.^[1] Respondent-father argues the trial court erred by determining grounds for neglect existed in support of terminating his parental rights, and by determining grounds pursuant to sections 7B-1111(a)(2) and 7B-1111(a)(3) existed to terminate his parental rights. Upon review of the parties' briefs and the record, we affirm.

I.

Wake County Health and Human Services ("WCHHS") filed a petition of neglect on 28 June 2019 for Celia and Luis. Luis and his mother tested positive for methadone and oxycodone at his birth. Luis also had small hemorrhages and white matter in his brain at birth, which is associated with the mother's drug use. WCHHS originally sought to temporarily place Luis's sister, Celia with relatives and transfer Luis to the relatives' home upon his hospital discharge, but the parents refused this possible plan. WCHHS placed Celia in a cousin's home under a temporary safety agreement but had to remove Celia and place her in a foster home after the parents began living with the cousin in violation of the agreement. Luis joined Celia at the same foster home upon his discharge from the hospital.

The children were adjudicated neglected and dependent by consent order on 27 August 2019. The children's adjudication for neglect was based upon the determination they "do not receive proper care and supervision from the [parents] and live in an environment injurious to their welfare" pursuant to section 7B-101(15). Respondent-father was determined to be the father of both children through birth certificate and paternity testing as mother and father are unmarried.

The mother is unemployed and receives disability benefits. The mother was diagnosed with severe opiate disorder and mild cocaine disorder. Although multiple tests returned positive for cocaine, she continued to state she had not used drugs for more than a year. The mother receives daily doses of methadone at a behavioral clinic due to her disorders and was provided a Guardian ad Litem for this case because of intellectual disabilities. During the time leading up to the termination hearing, the mother was charged with a DWI in which respondent-father was a passenger. The mother also continued to fall asleep during visitations and court hearings, which was attributed to the methadone. The mother has four other children no longer in her care due to long term substance abuse.

Respondent-father and the mother continue to reside together. Respondentfather and mother first lived in a trailer infested with roaches and multiple safety hazards to children until they were evicted and moved to a home in Harnett that was also in disrepair and unsuitable for children. Respondent-father is a self-employed mechanic who works four to twelve hours a day. Respondent-father and mother both reported forms of domestic abuse within their relationship. They were required to visit the children separately due to their discord.

Respondent-father initially lacked understanding of his responsibility in the removal of the children for neglect. Respondent-father was given the following case plan:

a. Enter into a written visitation agreement with WCHHS.

b. Obtain and maintain housing sufficient for him and the children.

c. Obtain and maintain legal income sufficient for him and the children and provide written verification to the social worker monthly. d. Complete an assessment through the UNC Parenting Evaluation Program and comply with recommendations. Those recommendations included:

i. Complete a medical physical examination.

ii. Complete individual outpatient psychotherapy to address partner abuse and partner substance abuse.

iii. Complete 12 therapy sessions and parenting education.

iv. Complete a psychoeducational program regarding raising a child with special needs.

e. Maintain regular contact with WCHHS, notifying the agency of any change in circumstances within five business days.

Respondent-father took steps to repair the home, attended weekly supervised visits, sent verification of $1300.00 in monthly income to the social worker, and participated in the recommended treatments and parenting plans. However, respondent-father did not complete a program on raising a child with special needs and failed to comprehend the danger of leaving the children with their mother. During supervised visits, both parents failed to recognize hazards for the children or remember to assist with basic needs without the social worker's assistance. Respondent-father "downplayed" the mother's DWI during the termination hearing and testified he would have to leave the children with the mother at times due to his work schedule. The trial court determined despite the participation in the programs offered, the respondent-father failed to resolve the likelihood of a repetition of neglect due to the serious concerns with the mother, his inability to appropriately parent during visits, and the medical and special needs of the children. In summary, the trial court determined the parents failed to show meaningful improvement to the problems that required the children's removal.

After multiple permanency planning hearings, the trial court determined the parents were no longer making progress at reunification and updated the primary plan to adoption. WCHHS filed a petition for termination on 24 February 2021. The termination hearings occurred on 1 October 2021 and 27 October 2021, and the trial court entered the order terminating respondent-father's parental rights on 26 April 2022. On 23 May 2022, respondent-father appealed of right pursuant to section 7B-1001(a)(7).

II.

Respondent-father argues the trial court erred in the following: (1) by concluding grounds for neglect existed to support termination of his parental rights; and (2) by concluding grounds existed to support termination of his parental rights pursuant to sections 7B-1111(a)(2) and 7B-1111(a)(3). We only consider respondentfather's argument the trial court erred by concluding grounds for neglect existed to support termination of his parental rights.

We review the trial court's findings of fact within the adjudicatory stage "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re D.W.P., 373 N.C. 327, 330, 838 S.E.2d 396, 400 (2020) (citation omitted). If the findings are supported by clear, cogent, and convincing evidence, then they are considered conclusive even if "some evidence supports contrary findings." In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997). "Clear, cogent and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." In re V.L.B., 168 N.C.App. 679, 683, 608 S.E.2d 787, 790 (2005) (internal quotation marks and citations omitted). It is evidence that "should fully convince [the finder of fact]." Id. (alteration in original). "Unchallenged findings of fact" are deemed "binding on appeal." In re D.W.P., 373 N.C. at 330, 838 S.E.2d at 400. We review the trial court's conclusions of law de novo. In re K.N., 381 N.C. 823, 827, 874 S.E.2d 594, 598 (2022).

Respondent-father first challenges the trial court's findings of fact 33, 42, 43, 46, 47, and 48 to support his argument the trial court lacked grounds to conclude he neglected the children. These challenged findings state:

33. The parents never sought meaningful domestic violence or other family counseling and now minimize any aggression or violence in their relationship.

42. The plan presented by the father is neither realistic nor appropriate for his children. The [c]ourt has previously given the parents additional time to formulate a suitable plan and has clearly articulated the [c]ourt's expectations in this regard.

43. The father made some progress on his case plan, even after several services were delayed due to Covid-19. He participated in treatment as well as parenting education. However, he failed to complete a program specifically tailored to help him raise a child with special needs as ordered by the [c]ourt. Perhaps more importantly, he also never meaningfully accepted responsibility for his own role in the children's removal or continued placement in foster care.

46. Regardless of the parents' participation in services the [c]ourt finds that neither parent has adequately addressed the circumstances that led to the children's removal from their care. Both parents love and want these children, but neither can appropriately provide daily parenting.

The responsibilities of parenting go far beyond what is expected during brief visits and there is little credible evidence that the children would remain safe in their care.

47. Neither parent can provide proper care and supervision of the children, and there is a reasonable probability that such

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