In re A.N.D.
| Decision Date | 18 March 2022 |
| Docket Number | 113A21 |
| Citation | 380 N.C. 702,869 S.E.2d 688 |
| Parties | In the MATTER OF: A.N.D., A.N.D., and A.C.D. |
| Court | North Carolina Supreme Court |
Mary Boyce Wells, Raleigh, for petitioner-appellee Wake County Human Services.
Michelle FormyDuval Lynch, for appellee Guardian ad Litem.
Leslie Rawls, Charlotte, for respondent-appellant father.
¶ 1 Respondent1 appeals from the trial court's order terminating his parental rights in A.N.D. (Andrew),2 born December 2009; A.N.D. (Adam), born February 2011; and A.C.D. (Anna), born July 2016, based on neglect and failure to show reasonable progress in correcting the conditions which led to the removal of the children from the home. We affirm the trial court's order.
¶ 2 On April 29, 2015, Wake County Human Services (DSS) filed a juvenile petition alleging that Andrew, Adam, and "Nigel"3 were neglected juveniles. The petition alleged that the children witnessed two domestic violence incidents between the children's mother and Nigel's father and the parents had substance abuse issues. Nigel was placed in foster care and Andrew and Adam remained in the care of their maternal grandmother. At that time, respondent was in federal custody and unable to provide care for Andrew and Adam.
¶ 3 In May 2015, the trial court found that respondent was still incarcerated with an expected release date in October 2015, and suspended respondent's visitation with the children. On September 3, 2015, the court adjudicated Andrew and Adam neglected juveniles and granted legal and physical custody to their maternal grandmother.
¶ 4 On September 12, 2017, DSS filed a petition alleging Anna4 to be a neglected juvenile. The petition alleged that the maternal grandmother was unable to obtain timely medical care for Anna because both parents were incarcerated and could not provide consent for treatment. Following a hearing in February 2018, the trial court determined, and respondent agreed, that it was in Anna's best interests for the maternal grandmother to be appointed as Anna's legal custodian. The trial court adjudicated Anna as a neglected juvenile on March 14, 2018, and placed her in the custody of the maternal grandmother along with Andrew and Adam. The trial court suspended respondent's visitation with Anna and ordered him to enter into a case plan with DSS.
¶ 5 On September 12, 2018, the trial court entered an order granting DSS nonsecure custody of all three children following the filing of a DSS petition alleging that Andrew, Adam, and Anna were abused, neglected, and dependent juveniles. The petition included allegations that the maternal grandmother had been arrested for driving while impaired and child abuse, among other allegations. This was the second time that the maternal grandmother had been charged with driving while impaired and child abuse within a six-month period. At that time, the children could not be placed with respondent, as he was residing in a "rooming house" that was not appropriate for children, and he could not provide for their care.
¶ 6 The trial court entered a consent order on adjudication and disposition on November 20, 2018. At the time of the hearing on adjudication and disposition, respondent was incarcerated in the Wake County Detention Center following his arrest for assault with a deadly weapon inflicting serious injury. DSS placed the children in foster care, and the trial court suspended respondent's visitation.
¶ 7 On October 11, 2019, DSS filed a motion to terminate respondent's parental rights in Andrew, Adam, and Anna, alleging that grounds existed for termination based on neglect, willfully leaving the minor children in foster care without showing reasonable progress in correcting the conditions which led to the removal of the children from the home, and failing to pay a reasonable portion of the cost of care for the children for a period of six months while the children remained in foster care.
¶ 8 In an order entered after a February 2020 hearing, the trial court found that respondent did not cooperate with recommended services in his case plan. The primary permanent plan was changed to adoption, with a secondary plan of reunification. In a June 11, 2020 order, the trial court determined that respondent resided in a "structurally sound" residence but that he refused to participate with his case plan and failed to comply with random drug screens. The trial court further found that respondent was not making adequate progress within a reasonable time, and his behavior was "inconsistent with the children's health and safety."
¶ 9 The trial court determined that grounds existed to terminate respondent's parental rights under N.C.G.S. § 7B-1111(a)(1) and (2) and that it was in the children's best interests that respondent's parental rights be terminated.
¶ 10 On appeal, respondent does not challenge the trial court's grounds for termination. Instead, respondent argues that the trial court abused its discretion in concluding that it was in Andrew's, Adam's, and Anna's best interests to terminate respondent's parental rights. Specifically, respondent argues that finding of fact 39 "misrepresents and mischaracterizes" his criminal history and the trial court failed to consider the impact of the coronavirus pandemic and options short of termination of his parental rights in its analysis.
¶ 11 Our Juvenile Code provides a two-stage process for terminating parental rights: an adjudication stage and a dispositional stage. See N.C.G.S. §§ 7B-1109, -1110 (2021). At the adjudication stage, the petitioner bears the burden of proving by "clear, cogent, and convincing evidence" the existence of one or more grounds for termination under N.C.G.S. § 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If one or more grounds exist for termination of parental rights, the court proceeds to the dispositional stage. N.C.G.S. § 7B-1110(a). At the dispositional stage, the trial court must "determine whether terminating the parent's rights is in the juvenile's best interest" based on the following criteria:
¶ 12 This Court reviews "the trial court's dispositional findings of fact to determine whether they are supported by competent evidence." In re E.S. , 378 N.C. 8, 2021-NCSC-72, ¶ 11, 859 S.E.2d 185 (quoting In re J.J.B. , 374 N.C. 787, 793, 845 S.E.2d 1, 5 (2020) ).5 If supported by competent evidence, the trial court's findings are binding on appeal. In re A.M.O. , 375 N.C. 717, 720, 850 S.E.2d 884, 887 (2020). "[A]ssessment of a juvenile's best interest ... is reviewed only for abuse of discretion." In re A.R.A. , 373 N.C. 190, 199, 835 S.E.2d 417, 423 (2019). A trial court's determination in a termination-of-parental-rights case "will remain undisturbed ... so long as that determination is not ‘manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ "
In re A.M. , 377 N.C. 220, 2021-NCSC-42, ¶ 18, 856 S.E.2d 801 (quoting In re A.U.D. , 373 N.C. 3, 6–7, 832 S.E.2d 698, 700–01 (2019) ).
¶ 14 Respondent correctly asserts that there is no support in the record for the trial court's finding that he was convicted of breaking and entering and possession of cocaine. However, a certified copy of respondent's criminal history in the record provides competent evidence for the remaining convictions set forth in finding of fact 39. Specifically, competent evidence in the record indicates that respondent was previously convicted of at least one count of (1) interfering with emergency communications; (2) misdemeanor larceny; (3) assault on a female; (4) distribution of cocaine; and (5) habitual misdemeanor assault. Thus, competent evidence supports the characterization of respondent's criminal history included in finding of fact 39.
¶ 15 Respondent next argues that the trial court's decision to terminate his parental rights was "manifestly unsupported by reason" because the trial court failed to consider the impact that coronavirus restrictions had on his housing and employment as a "relevant factor" in its best interest analysis. However, respondent did not have suitable housing before or after the filing of the October 2019 motion to terminate parental rights. Respondent concedes this fact in his brief when he states that "[respondent] was not able to obtain housing that would enable him to have his children in the home." Respondent further states in his brief that when he was not incarcerated, there was no place in which he resided that "could accommodate the children."
¶ 16 Regarding employment, respondent maintained fairly steady employment during the periods in which he was not incarcerated. While respondent was laid off from employment at a restaurant due to coronavirus restrictions, respondent...
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