In re Of
| Decision Date | 16 April 2019 |
| Docket Number | No. COA18-958,COA18-958 |
| Citation | 265 N.C.App. 10,827 S.E.2d 329 |
| Court | North Carolina Court of Appeals |
| Parties | In the MATTER OF H.N.D. & L.N.A-D. |
Elizabeth Kennedy-Gurnee for Petitioner-Appellee Cumberland County Department of Social Services.
Miller & Audino, LLP, Greenville, by Jeffrey L. Miller, for Respondent-Appellant.
Stephen M. Schoeberle for Guardian ad Litem.
Respondent-Appellant Mother (Mother) appeals from orders ceasing reunification efforts with and terminating her parental rights to her minor children L.N.A-D. (Lee) and H.N.D. (Hank)1 (collectively, the Children). She contends that the trial court erred by making various findings of fact and conclusions of law in both orders. We affirm in part and dismiss in part.
On 24 February 2014, Petitioner-Appellee Cumberland County Department of Social Services ("DSS") filed a juvenile petition alleging that Lee was neglected and dependent. The DSS petition alleged the following: (1) Mother had a history of domestic violence with Lee's father Jerry Dennings; (2) Mother and Dennings had a physical altercation on or about 27 December 2013 in which Dennings hit Mother in Lee's presence and forced her out of the house threatening to kill her if she took Lee, after which Mother left Lee with Dennings; (3) Mother stated that she attempted to retrieve Lee from the house on 30 December 2013, but could not do so because Dennings fired a gun at her; (4) Dennings was involved in a physical altercation with another woman involving a gun in Lee's presence on 17 February 2014; (5) the police came to Dennings’ house on 17 February 2014, Dennings fled as a result leaving Lee unsupervised, and Mother retrieved Lee the same day; (6) starting on 17 February 2014, Mother told social workers she had moved with Lee into the house of another man with whom she had children, and with whom she had a similar history of domestic violence, including multiple physical altercations in the presence of Mother's children.
DSS obtained nonsecure custody of Lee on 24 February 2014. On 5 May 2014, pursuant to an agreement between DSS and Mother, the trial court adjudicated Lee dependent because of domestic violence issues, and on 26 June 2014 a disposition order was entered. On 18 November 2014, an initial permanency planning hearing took place, and the trial court established a plan of reunification with Mother. In its permanency planning order, the trial court found that Mother and Dennings continued to reside together as a couple and that they had not appropriately addressed their domestic violence issues. The trial court thus concluded that it was not possible for Lee to return to his parents’ custody because the conditions which had led to his removal had not yet been alleviated. Subsequent permanency planning orders continued with a plan of reunification.
Following Hank's birth on 3 April 2015, DSS filed a petition alleging that Hank was neglected and dependent. The 17 April 2015 petition described the findings from the prior order adjudicating Lee dependent, and alleged continuing issues between Mother and Dennings, including a 17 April 2015 argument in which Dennings threatened to break Mother's neck. DSS obtained nonsecure custody of Hank on 17 April 2015. At a 23 September 2015 hearing, DSS and Mother stipulated to Hank's dependent status because of domestic violence issues. On 24 May 2014, the trial court entered an adjudication and disposition order adjudicating Hank dependent.
By written order entered 24 March 2017, the trial court ordered the primary permanent plans for both Lee and Hank to be adoption, and no longer reunification with Mother. In so doing, the trial court found a "long and enduring" history of domestic violence between Mother and Dennings, including an incident in August 2016 in which Dennings was arrested for assaulting Mother with a deadly weapon and Mother sought a restraining order against Dennings. The orders were entered on 28 March 2017, and Mother timely preserved her right to appeal them on 30 March 2017. Subsequent permanency planning orders continued with the plan of adoption.
On 19 September 2017, DSS filed a petition to terminate Mother's rights to the Children. Hearings took place in February and March 2017, after which the trial court entered an order terminating Mother's parental rights on 27 June 2018. Mother timely noticed her appeal of the permanency planning order ceasing reunification efforts and the order terminating her parental rights on 18 July 2018.
This Court has jurisdiction to hear Mother's appeal under N.C. Gen. Stat. § 7B-1001(a)(5) (2017)2 and Mother is a proper party under N.C. Gen. Stat. § 7B-1002(4) (2017).
Mother raised the following issues on appeal: (1) whether the trial court erred in ceasing reunification efforts with Mother; and (2) whether the trial court erred in terminating Mother's parental rights. Because we conclude that the trial court did not err regarding the termination of parental rights, a conclusion which renders Mother's appeal of the cessation of reunification efforts moot and obviates analysis thereof, we will address the termination of parental rights first.
A termination-of-parental-rights proceeding is a two-step process. In re D.A.H.-C. , 227 N.C. App. 489, 493, 742 S.E.2d 836, 839 (2013). In the initial adjudication phase, the petitioner has the burden to "show by clear, cogent and convincing evidence that a statutory ground to terminate exists" under N.C. Gen. Stat. § 7B-1111 (2017). Id. (citation omitted). If the petitioner meets its evidentiary burden with respect to a statutory ground and the trial court concludes that the parent's rights may be terminated, then the matter proceeds to the disposition phase, at which the trial court determines whether termination is in the best interests of the child. In re T.D.P. , 164 N.C. App. 287, 288, 595 S.E.2d 735, 736-37 (2004). If the trial court so determines, it may terminate the parent's rights in its discretion. In re Howell , 161 N.C. App. 650, 656, 589 S.E.2d 157, 161 (2003).
In reviewing a trial court's order to terminate parental rights, this Court must first determine, with respect to the adjudication phase, whether the "findings of fact are supported by clear, cogent and convincing evidence[.]" In re S.N. , 194 N.C. App. 142, 145-46, 669 S.E.2d 55, 58 (2008) (citation omitted). "Clear, cogent and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt," and requires "evidence which should fully convince." In re Mills , 152 N.C. App. 1, 13, 567 S.E.2d 166, 173 (2002) (citations omitted). If satisfied that the record contains clear, cogent, and convincing evidence supporting the findings of fact, the Court must then determine whether the findings of fact support the trial court's conclusions of law. S.N. , 194 N.C. App. at 146, 669 S.E.2d at 58-59. This Court reviews the trial court's legal conclusions de novo . Id. Finally, with respect to the disposition phase, this Court reviews a 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." Id. (quoting Clark v. Clark , 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980) ).
Our analysis of the order terminating Mother's rights is limited to whether the trial court erred in the adjudication phase, by either (1) making findings of fact unsupported by clear, cogent, and convincing evidence, or (2) by erroneously concluding that N.C. Gen. Stat. § 7B-1111 provides grounds to terminate Mother's rights to the Children. Mother does not argue that the trial court erred in the disposition phase, i.e., in deciding that termination of her rights was in the best interests of the Children, and as such that issue is not before us.
In its order, the trial court concluded that the following five separate grounds existed to terminate Mother's rights: (1) neglect, N.C. Gen. Stat. § 7B-1111(a)(1) ; (2) failure to make reasonable progress, N.C. Gen. Stat. § 7B-1111(a)(2) ; (3) failure to pay for the Children's care, N.C. Gen. Stat. § 7B-1111(a)(3) ; (4) dependency, N.C. Gen. Stat. § 7B-1111(a)(6) ; and (5) abandonment, N.C. Gen. Stat. § 7B-1111(a)(7). A determination that any of the grounds existed is sufficient to affirm. T.D.P. , 164 N.C. App. at 290-91, 595 S.E.2d at 738.
The trial court concluded that grounds existed to terminate Mother's rights under N.C. Gen. Stat. § 7B-1111(a)(6), which sets forth that a parent's rights to her child may be terminated if "the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of [N.C. Gen. Stat. §] 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future." N.C. Gen. Stat. § 7B-1111(a)(6).
The trial court made the following pertinent and specific findings of fact underpinning its conclusion that N.C. Gen. Stat. § 7B-1111(a)(6) is applicable in this case:
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