In re S.C.R.

• Decision Date: 04 August 2009
• Docket Number: No. COA09-368.,COA09-368.
• Citation: 679 S.E.2d 905
• Parties: In the Matter of S.C.R., A Minor Child.
• Court: North Carolina Court of Appeals

679 S.E.2d 905

In the Matter of S.C.R., A Minor Child.

No. COA09-368.

Court of Appeals of North Carolina.

August 4, 2009.

Appeal by respondents from order entered 17 December 2008 by Judge Spencer G. Key, Jr. in Stokes County District Court. Heard in the Court of Appeals 13 July 2009.

J. Tyrone Browder for Stokes County Department of Social Services.

Pamela Newell Williams, Raleigh, for Guardian ad Litem.

Charlotte Gail Blake, Boone, for respondent-mother appellant.

Richard E. Jester, Louisburg, for respondent-father appellant.

BRYANT, Judge.

I.M.R.¹ (respondent-mother) and C.B.R. (respondent-father) appeal from an order entered 17 December 2008 terminating their parental rights to S.C.R. We affirm.

Facts

S.C.R. has continuously been in the custody of the Stokes County Department of Social Services (DSS) since 9 April 2008. Between the dates of 12 November 2007 and 18 January 2008, DSS received five separate protective services reports alleging that respondent-mother was using crack cocaine, marijuana, prescription medicine, and alcohol while acting as S.C.R.'s sole caregiver. One report also alleged that respondent-mother and her boyfriend, who is not S.C.R.'s father, were involved in a domestic violence incident in S.C.R.'s presence. Respondent-mother entered into safety plans in which she agreed to arrange for someone other than her boyfriend to be a safe and sober caretaker for S.C.R. before respondent-mother consumed drugs or alcohol.

On 5 February 2008, DSS found S.C.R. to be at risk due to respondent-mother's substance abuse and domestic violence between respondent-mother and her boyfriend. On 9 April 2008, DSS received another child protective services report alleging law enforcement officers had found respondent-mother "passed out drunk." S.C.R. was in the sole care of respondent-mother's boyfriend at the time of the incident. Respondent-mother had been evicted from her residence and was temporarily residing with her grandmother. Respondent-father was incarcerated at the time of the incident.

On 14 May 2008, respondent-mother and respondent-father entered into a case plan with DSS. Respondent-mother agreed to obtain a psychological and parenting assessment and follow all recommendations; submit to random drug screens; attend and complete parenting classes; obtain and maintain employment for a minimum of six months; obtain and maintain suitable and safe housing; obtain a substance abuse assessment and follow all recommendations; obtain assessments for anger management and domestic violence and follow all recommendations; and pay child support. Respondent-father was incarcerated and scheduled to be released 1 July 2009. He agreed to continue AA and NA meetings while incarcerated and after his release, attend Father Accountability classes, and cooperate with child support enforcement to establish child support payments.

On 22 May 2008, the trial court adjudicated S.C.R. as neglected. The trial court ordered respondent-mother to obtain substance abuse treatment, obtain a psychological/parenting assessment and psychiatric evaluation, and submit to random drug screenings. Respondent-mother failed to complete any of the requirements of her case plan or the court's order with the exception of submitting to random drug screens. Respondent-mother enrolled in an outpatient substance abuse program on 17 April 2008. However, respondent-mother sporadically attended the daily sessions, resulting in her termination from the program in June 2008. Respondent-mother obtained readmission to the program on 10 July 2008 but was terminated again from the program on 27 October 2008. Respondent-mother tested positive for marijuana eight times during the months of July and August 2008. She tested positive for marijuana, "benzos," and cocaine on 22 October 2008 at her final drug screening prior to the termination of parental rights hearing.

Weekly visitations with S.C.R. were made available to respondent-mother from 15 April 2008 through 5 November 2008. Respondent-mother failed to attend eighteen out of twenty-nine scheduled visits. Respondent-mother failed to establish a permanent residence, and has lived with various friends and Respondent-mother neither established employment nor paid any money to support S.C.R.

From 14 February 2007 through the date of the termination hearing, respondent-father was incarcerated on a cocaine trafficking conviction. Respondent-father's scheduled release date was 3 July 2009. While incarcerated, respondent-father worked for the Department of Transportation, earning seventy cents per day. He also worked in a canteen earning one dollar per day. Respondent-father did not pay any child support or purchase anything for S.C.R. Respondent-father wrote letters to S.C.R. and has approximately thirty photos of S.C.R. Prior to DSS taking custody of S.C.R., respondent-father's parents brought S.C.R. to visit him while he was incarcerated. After custody of S.C.R. was awarded to DSS, respondent-father was only able to visit S.C.R. during court hearings.

Prior to DSS's filing of the motion to terminate parental rights on 19 August 2009, respondent-father had taken no action to (1) establish paternity judicially or by affidavit filed in a central registry maintained by the Department of Health and Human Services (DHHS), (2) legitimate S.C.R. pursuant to N.C. Gen.Stat. § 49-10 or to file a petition for this specific purpose, (3) legitimate S.C.R. by marriage to S.C.R.'s mother, or (4) provide substantial financial support or consistent care of S.C.R. and her mother. After DSS filed the petition to terminate parental rights, respondent-father filed an affidavit of parentage signed by respondent-father and respondent-mother respectively.

On 25 June 2008, the trial court ceased reunification efforts with respondent-mother and respondent-father, and on 24 July 2008, changed the permanent plan for S.C.R. to adoption with a concurrent plan of reunification.

Based upon its findings of fact, the trial court concluded that respondent-mother's parental rights may be terminated on the grounds that S.C.R. is neglected and dependent. The trial court concluded that respondent-father's parental rights may be terminated on the grounds that S.C.R. is neglected, and respondent-father had not taken any of the permissible actions to establish paternity or otherwise legitimate S.C.R. prior to the filing of the motion to terminate parental rights on 19 August 2008. By a separate disposition order, the court concluded that it is in the best interest of S.C.R. that respondent-mother's and respondent-father's parental rights be terminated. Respondent-mother and respondent-father appeal.

On appeal respondent-father argues: (I) the trial court's proceeding to termination of his parental rights violated his due process rights because the time period between DSS taking custody of S.C.R. and termination of his rights was less than nine months; (II) he received ineffective assistance of counsel; (III) the trial court erred by failing to make required findings when changing the permanent plan to adoption; and (IV) the trial court erred in terminating his parental rights.

Respondent-mother argues the trial court erred by: (I) finding grounds existed to terminate her parental rights based upon a finding of neglect; (II) by finding and concluding that grounds existed to terminate her parental rights on the basis of dependency because the trial court failed to make adequate findings of fact; and (III) by finding it was in S.C.R.'s best interest to terminate respondent-mother's parental rights.

Respondent-Father's Appeal

I

Respondent-father argues that the trial court's conducting the termination hearing less than nine months after petitioner took custody of S.C.R. violated his right to due process. We note that the record fails to show that respondent-father moved to continue the hearing or otherwise voiced an objection to the timing of the hearing. "In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R.App. P. 10(b)(1) (2007). Moreover, it is well settled that a constitutional issue not raised in the lower court will not be considered for the first time on appeal. State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 519 (1988). We therefore decline to address this issue.

II & III

Respondent-father next contends the trial court erred by failing to make findings of fact as required by N.C. Gen.Stat. § 7B-907(b) when it changed the permanent plan for S.C.R. to adoption. Respondent-father also contends he was denied effective assistance of counsel because of his counsel's failure to raise the issue during the termination proceedings. We disagree.

Pursuant to N.C. Gen.Stat. § 7B-507(c), "any hearing at which the court finds and orders that reasonable efforts to reunify a family shall cease, the affected parent ... may give notice to preserve the parent['s] right to appeal the finding and order in accordance with G.S. 7B-1001(a)(5)." N.C. Gen.Stat. § 7B-507(c) (2007). "Notice may be given in open court or in writing within 10 days of the hearing at which the court orders the efforts to reunify the family to cease." Id. In the present case, respondent-father failed to give notice within ten days of the hearing to preserve his right to appeal the trial court's findings and order which changed the permanent plan for S.C.R. to adoption. Therefore, this assignment of error is overruled.

Respondent-father claims he received ineffective assistance of counsel. A parent in a termination of parental rights proceedings has the right to counsel. N.C. Gen.Stat. § 7B-1101.1(a) (2007). This right to counsel also includes the right to effective assistance of counsel. In re Oghenekevebe, 123 N.C.App. 434,...