In re M.J.S.M., COA17-688

• Decision Date: 06 February 2018
• Docket Number: No. COA17-688,COA17-688
• Citation: 257 N.C.App. 633,810 S.E.2d 370
• Parties: In the MATTER OF: M.J.S.M.
• Court: North Carolina Court of Appeals

257 N.C.App. 633

810 S.E.2d 370

In the MATTER OF: M.J.S.M.

No. COA17-688

Court of Appeals of North Carolina.

Filed: February 6, 2018

Mercedes O. Chut, Greensboro, for petitioner-appellee Guilford County Department of Health and Human Services.

Batch, Poore & Williams, PC Sydney Batch, for respondent-appellant mother.

Diepenbrock Law Office, Asheville, by J. Thomas Diepenbrock, for respondent-appellant father.

K&L Gates LLP, Charlotte, by Hillary Dawe, for guardian ad litem.

HUNTER, JR., Robert N., Judge.

Respondent-Parents appeal from an order terminating their parental rights to their minor child, M.J.S.M. ("Mary").¹ On appeal, Respondent-Mother argues the trial court erred in terminating her parental rights on the grounds of neglect, willful failure to pay a reasonable portion of the cost of Mary's care, and dependency. Respondent-Father's counsel filed a no-merit brief, pursuant to North Carolina Rule of Appellate Procedure 3.1(d). N.C.R. App. P. 3.1(d) (2017). We affirm.

I. Factual and Procedural Background

On 13 April 2016, petitioner Guilford County Department of Health and Human Services ("DHHS") filed a juvenile petition alleging five-month-old Mary to be a neglected and dependent juvenile. The petition alleged DHHS received a Child Protective Services ("CPS") report after Respondent-Father choked, hit, and pushed on the stomach of Respondent-Mother, while she was pregnant with Mary. As a result of Respondent-Father's actions: (1) doctors performed an emergency caesarian section

due to fetal distress; (2) Mary had no heartbeat; and (3) doctors had to resuscitate Mary for twenty minutes, immediately after she was born.

In late 2015 and early 2016, Respondent-Parents entered into case plans and agreed Respondent-Father would not have any contact with Respondent-Mother or Mary. On 13 April 2016, a DHHS social worker made an unannounced visit to Respondent-Mother's home and discovered Respondent-Father there. Additionally, Respondent-Mother "failed to comply with the terms of her treatment plan, including her failure to enroll in and attend domestic violence education[.]" Respondent-Father "refused to complete substance abuse counselor or drug screens and has avoided contact with [the social worker]."

Consequently, DHHS filed the petition and requested nonsecure custody of Mary "[d]ue to the ongoing substance abuse and domestic violence and the lack of family resources to provide care and supervision." On 13 April 2016, the court granted nonsecure custody of Mary to DHHS.

On 6 May 2016, Respondent-Mother entered into an out-of-home services agreement with DHHS, replacing her prior case plan. Respondent-Mother agreed to, inter alia : (1) submit to a psychiatric assessment and comply with any recommendations thereof; (2) complete domestic violence programs and "not have any contact with [Respondent-Father]"; (3) maintain safe, stable housing; (4) maintain stable employment; (5) submit to a substance abuse assessment; and (6) attend other DHHS programs/courses.

On 15 September 2016, the court held a pre-adjudication, adjudication, and dispositional hearing. In an order entered 25 October 2016, the court adjudicated Mary as a neglected and dependent juvenile.² Respondent-Mother failed to submit to a psychiatric assessment, maintained contact with Respondent-Father, lived in the same apartment complex as Respondent-Father, failed to attend multiple appointments or did not engage in therapy sessions, failed to maintain employment, and used drugs. Respondent-Father failed to submit to a parenting/psychological assessment, failed to enroll in domestic violence classes, maintained contact with Respondent-Mother, and tested positive for marijuana in a drug screen.

The court ordered Respondent-Parents to comply with their case plans and permitted Respondent-Mother to have supervised visitation with Mary, who remained in DHHS custody, twice per week. The court did not permit Respondent-Father to have any contact with Mary. The court set the primary permanent plan as reunification.

On 20 December 2016, the trial court entered a permanency planning review order.³ The court found Respondent-Parents showed a "lack of compliance" with their case plans. The court changed the primary permanent plan to adoption, with a secondary plan of reunification. The court ordered DHHS to file a termination of parental rights petition within sixty days. The court also reduced Respondent-Mother's visitation to once per week.

On 27 January 2017, DHHS filed a motion seeking to terminate Respondent-Parents’ parental rights to Mary on the grounds of neglect, willful failure to pay a reasonable portion of the cost of Mary's care, and dependency. See N.C. Gen. Stat. § 7B–1111(a)(1), (3), (6) (2015). The court held a hearing for the motion on 20 March 2017.

On 18 April 2017, the trial court entered an order terminating Respondent-Mother's parental rights based upon all three grounds alleged by DHHS and Respondent-Father's parental rights based upon neglect and willful failure to pay a reasonable portion of the cost of Mary's care. Respondent-Parents entered timely notices of appeal.

II. Standard of Review

"The standard for review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law." In re Clark , 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984) (citation omitted). "If unchallenged on appeal, findings of fact are deemed supported by competent evidence and are binding upon this Court." In re A.R.H.B. , 186 N.C. App. 211, 214, 651 S.E.2d 247, 251 (2007) (internal quotation marks and citations omitted), appeal dismissed , 362 N.C. 235, 659 S.E.2d 433 (2008).

III. Analysis

A. Respondent-Mother's Appeal

Respondent-Mother argues the trial court erred by concluding three grounds existed to terminate her parental rights. We disagree.

Pursuant to N.C. Gen Stat. § 7B–1111(a)(1), "[t]he trial court may terminate the parental rights to a child upon a finding that the parent has neglected the child." In re Humphrey , 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (citing N.C. Gen. Stat. § 7B–1111(a)(1) ). A neglected juvenile is defined, in relevant part, as "[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned[.]" N.C. Gen. Stat. § 7B–101(15) (2015).

"A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young , 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997 (citation omitted). However, when, as here, the child has been removed from her parent's custody such that it would be impossible to show the child is currently being neglected by their parent, "a prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect." In re Ballard , 311 N.C. 708, 713–14, 319 S.E.2d 227, 231 (1984).

If a prior adjudication of neglect is considered, "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Id . at 715, 319 S.E.2d at 232 (citation omitted). Thus, where:

there is no evidence of neglect at the time of the termination proceeding ... parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.

In re Reyes , 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted). A parent's failure to make progress in completing a case plan is indicative of a likelihood of future neglect. In re D.M.W. , 173 N.C. App. 679, 688–89, 619 S.E.2d 910, 917 (2005), rev'd per curiam per the dissent, 360 N.C. 583, 635 S.E.2d 50 (2006).

In this case, Respondent-Mother concedes Mary was previously adjudicated a neglected juvenile. However, she disputes the evidence at the termination hearing demonstrated a likelihood of future neglect. The trial court made the following finding, with respect to repetition of neglect:

17.... c. There is a likelihood of the repetition of neglect by [Respondent-Mother], given her history of neglect, her failure to adequately address the issues that resulted in the removal of the juvenile (particularly her mental health), the fact that she continues to minimize the impact of the domestic violence between herself and the father, the fact that she was not truthful about contact between herself and the father since removal of the juvenile, and the fact that she is currently inconsistent with mental health medications and therapy.

Respondent-Mother contends this finding is not supported by competent evidence because she made some progress on various aspects of her case plan. Specifically, she argues there was evidence she: (1) obtained appropriate housing, (2) engaged in some domestic violence counseling, and (3) was taking her prescribed medication for her mental health disorders. While Respondent-Mother is correct she did not completely fail to work on her case plan, the evidence presented at the termination hearing shows this work was only sporadic and inadequate.

In its termination order, the trial court made specific findings regarding Respondent-Mother's progress on her case plan. These findings reflected, inter alia , Respondent-Mother: (1) submitted to two psychiatric evaluations, but failed to comply with their recommendations; (2) did not begin taking medication for her mental health issues until March 2017; (3) completed only five of twelve sessions in a domestic violence program; (4) continued to be seen with Respondent-Father and downplayed his domestic abuse; (5) failed to find housing in a separate apartment ...