In re M.Y.P.

• Decision Date: 24 September 2021
• Docket Number: No. 364A20,364A20
• Citation: 862 S.E.2d 773,378 N.C. 667
• Parties: In the MATTER OF: M.Y.P.
• Court: North Carolina Supreme Court

378 N.C. 667

862 S.E.2d 773

In the MATTER OF: M.Y.P.

No. 364A20

Supreme Court of North Carolina.

Filed September 24, 2021

Marc S. Gentile, Senior Associate County Attorney, for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services Division.

Amanda S. Hawkins, for appellee Guardian ad Litem.

Benjamin J. Kull, Raleigh, for respondent-appellant father.

NEWBY, Chief Justice.

¶ 1 Respondent, the father of M.Y.P. (Max), appeals from the trial court's order terminating his parental rights.¹ After careful review, we affirm.

¶ 2 Max was born on 27 May 2016. His parents have a lengthy history with family court, with each parent seeking legal custody at different times.

¶ 3 On 2 October 2018, the Mecklenburg County Department of Social Services, Youth and Family Services Division (YFS) received a referral regarding Max. A neighbor had observed Max, who was then two years old, alone and crying on the balcony of his apartment. The Charlotte-Mecklenburg Police Department went to the residence, and after knocking several times, entered the unlocked apartment, and found Max alone inside the home. The apartment had no furniture in it other than a pack-n-play. The police and YFS attempted to contact respondent but were unsuccessful.

¶ 4 Accordingly, on 3 October 2018, YFS filed a petition, which it later amended, alleging that Max was neglected and dependent and obtained nonsecure custody. Respondent did not reappear until he arrived at a hospital on 5 October 2018 seeking treatment. Max was placed with the maternal grandfather and his girlfriend following a nonsecure custody hearing held on 10 October 2018.

¶ 5 After a hearing on 4 February 2019, on 8 March 2019, the trial court entered an order adjudicating Max neglected and dependent pursuant to respondent's stipulations to allegations in the amended petition. At disposition, the trial court found that there had been no alleviation of the conditions which led to Max's removal from respondent's home, which included domestic violence, lack of stable housing, and mental health issues. The trial court specifically noted the history of domestic violence between respondent and Max's mother, as well as between them and other partners, which the trial court labeled as "volatile and violent." Additionally, respondent had failed to provide the court with accurate information regarding his housing or work history. The trial court also found that respondent "seems to have an irrational view of the facts in this matter" and "[h]is view of the facts is not credible and may qualify as delusional." The trial court further found that respondent had one visit with Max, was difficult to contact, and had not made any effort to establish or confirm visitation since 24 October 2018. Conversely, the court noted that Max had been placed with his siblings with the maternal grandfather, the placement had been positive, and Max was thriving. The trial court ordered the primary permanent plan for Max as reunification with a secondary plan of adoption. Additionally, the trial court ordered that Max remain in his placement with the maternal grandfather and granted respondent supervised visitation.

¶ 6 On 7 June 2019, the trial court entered a review order in which it found that respondent had: (1) outstanding orders for his arrest; (2) not visited with Max on a consistent basis; and (3) not demonstrated his ability to provide for Max's basic needs. Additionally, the court noted that YFS no longer had valid contact information for respondent and last had contact with him on 21 March 2019. The trial court further found that respondent had "taken no meaningful steps within the last two months to ameliorate the removal conditions" and authorized YFS to file a petition to terminate parental rights. The trial court also changed the primary permanent plan for Max to adoption and the secondary permanent plan to reunification.

¶ 7 The trial court held a permanency planning review hearing on 10 July 2019. In an order entered on 6 August 2019, the trial court found that respondent still had not engaged in any services nor alleviated the removal conditions. The trial court noted that respondent had only visited Max twice since 4 February 2019.

¶ 8 On 11 July 2019, YFS filed a motion in the cause to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) (neglect) and (3) (failure to pay for the cost of care). On 19 March 2020, the trial court entered an order determining that grounds existed to terminate respondent's parental rights pursuant to neglect. N.C.G.S. § 7B-1111(a)(1) (2019). The trial court further concluded it was in Max's best interests that respondent's parental rights be terminated. Accordingly, the trial court terminated respondent's parental rights.² Respondent appeals.

I. Adjudication

¶ 9 Respondent first argues that the trial court erred by terminating his parental rights based on neglect. Specifically, respondent contests several findings of fact, asserts that those findings do not support the trial court's conclusions of law, and argues that terminating his rights here would undermine the legislature's intent in promulgating the neglect ground for termination cases.

¶ 10 A termination of parental rights proceeding consists of an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-1109, -1110 (2019); In re Montgomery , 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). 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 our General Statutes. N.C.G.S. § 7B-1109(f) (2019). We review a trial court's adjudication "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery , 311 N.C. at 111, 316 S.E.2d at 253 (citing In re Moore , 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982) ). "Findings of fact not challenged by respondent 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).

¶ 11 Here the trial court concluded that a ground existed to terminate respondent's parental rights based on N.C.G.S. § 7B-1111(a)(1) (neglect). A trial court may terminate parental rights pursuant to N.C.G.S. § 7B-1111(a)(1) where it concludes the parent has neglected the juvenile within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B-1111(a)(1). A neglected juvenile is defined, in pertinent part, as a juvenile "whose parent ... does not provide proper care, supervision, or discipline; ... or who lives in an environment injurious to the juvenile's welfare ...." N.C.G.S. § 7B-101(15) (2019). We have recently explained that

"Termination of parental rights based upon this statutory ground requires a showing of neglect at the time of the termination hearing or, if the child has been separated from the parent for a long period of time, there must be a showing of ... a likelihood of future neglect by the parent." "When determining whether such future neglect is likely, the district court must consider evidence of changed circumstances occurring between the period of past neglect and the time of the termination hearing."

In re R.L.D. , 375 N.C. 838, 841, 851 S.E.2d 17, 20 (2020) (first quoting In re D.L.W. , 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016), then quoting In re Z.V.A. , 373 N.C. 207, 212, 835 S.E.2d 425, 430 (2019) ).

¶ 12 In support of its conclusion as to N.C.G.S. § 7B-1111(a)(1), the trial court made the following findings of fact:

22. On October 2, 2018 at approximately 10:20 pm, YFS received a referral alleging that the juvenile had been left alone at his residence and had been in and out of the apartment residence crying for the Respondent Father.

23. Law enforcement had been called to the Respondent Father's residence approximately 40 minutes before YFS was called. When officers arrived, they knocked on the door several times, but no one answered. Because the child was so young, the doorknob was checked and it was unlocked so officers entered. The child was found alone and without any supervision. The only furniture in the residence was a pack-n-play. There was a letter addressed to the Respondent Father, but a different address was listed. Officers knocked on neighbors’ doors but no one knew the Respondent Father. The telephone numbers that law enforcement found for the Respondent Father were disconnected or were no longer in service so the juvenile was transported to a regional substation.

24. The juvenile was left alone without adult supervision since at least 8:00 pm on October 2, 2018. The Respondent Father was unavailable to provide any care or supervision until Friday, October 5, 2018. During the nonsecure custody hearing for this juvenile, the Respondent Father [sic] testimony was inconsistent and mostly incoherent. In sum, he claimed that [Max's mother] kidnapped him in the evening hours of October 2, 2018 and then held him hostage and assaulted him repeatedly until October 5, 2018 when he sought treatment at a local hospital. [Max's mother] has been charged criminally as a result of this allegation, but she has not been seen or heard from since October 5, 2018 and her charges remain pending.

25. As for the lack of furniture in the apartment where the juvenile was found, the Respondent Father and the juvenile had been living there for weeks. He claims that furniture was being delivered. He and [his wife] were married at this time, but he had not lived with her for at least three years though he still depended on her for support.

26. Prior to the filing of the juvenile petition, [respondent and Max] lived together in at least six different residences.

....

28. [Max] was adjudicated neglected and dependent on February 4, 2019. [Respondent] was present during the adjudication. The dispositional hearing occurred immediately after the juvenile was

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