In re A.E.S.H.
| Decision Date | 18 March 2022 |
| Docket Number | 208A21 |
| Parties | In the MATTER OF: A.E.S.H. |
| Court | North Carolina Supreme Court |
Susan F. Davis, for petitioner-appellee Henderson County Department of Social Services.
John H. Cobb, for appellee Guardian ad Litem.
David A. Perez, Thomasville, for respondent-appellant father.
¶ 1 Respondent-Father appeals from an order terminating his parental rights in his child, A.E.S.H. (Andrew).1 We affirm the trial court's order.
¶ 2 Andrew was born in August 2009. On 17 January 2019, when Andrew was nine years old, the Henderson County Department of Social Services (HCDSS) filed a juvenile petition alleging that Andrew was a neglected and dependent juvenile, based on conditions observed the day before when the Henderson County Sheriff's Department responded to a medical call at the family's residence in Mills River, North Carolina, relating to Andrew's mother.
¶ 3 However, that was not the first time that Andrew's family had been involved with social services. In 2017 and 2018, when they lived in Asheville, North Carolina, the Buncombe County Department of Social Services (BCDSS) was involved with the family because of the parents’ alleged substance abuse, unsanitary conditions in the home, specifically the presence of animal feces, and reports that Andrew had poor hygiene and attended school smelling dirty.
¶ 4 After Andrew's family moved to Mills River, North Carolina, HCDSS received a report on 14 November 2018 concerning the unsanitary condition of that home including animal feces throughout the house. HCDSS closed this case in December 2018 after the family was provided resources and cleaned up the home.
¶ 5 On 16 January 2019, when officers responded to the medical call, they stated that Andrew's mother's condition was so shocking she "looked like something out of a horror movie." According to the officers, her body was swollen and she was lying in her own waste. Andrew's mother was diabetic, bedridden, and suffered from degenerative bone disease
. After refusing to take her medication, she was transported to the hospital. The officers saw animal feces throughout the home and noted a strong odor of ammonia due to cat urine.
¶ 6 That same day, HCDSS became involved. HCDSS learned from the officers that Andrew's mother was unresponsive and on a ventilator in the Intensive Care Unit at Pardee Hospital. HCDSS also learned that upon her arrival at the hospital, she was diagnosed with alcohol dependence, multiple organ failure, internal bleeding, and had feces between her toes.
¶ 7 A HCDSS social worker visited the home where they also observed animal feces throughout the living areas. They noted there was a hole a few inches wide in Andrew's room leading to the exterior of the home. Andrew explained that cats come in and out through the hole, and he was trying to fix it as they were touring the home. Andrew appeared and smelled dirty and he had not eaten all day. There were empty beer cans throughout the home and piles of beer cans on each side of the bed. Respondent-father admitted that Andrew's mother had been bedridden for at least six days, during which time she refused food and medicine and defecated and urinated on herself in the bed. Respondent-father further acknowledged that he had been sleeping in the bed with her and that uncleanliness also led to her bleeding from her private area. Andrew told the HCDSS social worker that his mother had been trying to eat cigarettes, her phone, and pillows.
¶ 8 HCDSS social workers also were concerned about the family's obviously malnourished dog whose ribs were visible. Respondent-father was arrested at the home that day and charged with felony cruelty to animals. Just two days earlier, on 14 January 2019, respondent-father had been indicted on sex offense charges. At the time of his arrest for felony cruelty to animals, respondent-father was a registered sex offender and had nine previous convictions of taking indecent liberties with a minor for incidents that occurred between 2005 and 2009. None of these incidents involved Andrew.
¶ 9 HCDSS social workers sought to speak with both respondent-father and Andrew's mother on 16 January 2019 about alternative placements for Andrew and plans for his care. However, Andrew's mother was too ill to be interviewed. Respondent-father was unable to name any appropriate placements for Andrew or develop a plan for his care. On 17 January 2019, Andrew's mother passed away and Andrew was placed into HCDSS custody where he has remained ever since.
¶ 10 The trial court adjudicated Andrew neglected following a hearing on 7 February 2019, at which respondent-father was present. The court granted custody to HCDSS, and placed Andrew in foster care. The trial court determined that Andrew was a neglected juvenile for three reasons: (1) Andrew was residing in a home that was unsuitable due to filth, (2) Respondent-father's substance abuse, and (3) Respondent-father's parenting issues. The primary permanent plan was reunification, and the trial court ordered respondent-father to complete a reunification plan in order to regain custody.
¶ 11 On 28 February 2019, respondent-father was arrested for felony domestic neglect of a disabled or elder person and misdemeanor child abuse. Although released on bond a month later, respondent-father was subsequently rearrested in April 2019 pursuant to a bill of indictment and was convicted in August 2019 of felony cruelty to animals, felony domestic neglect of a disabled or elder person, and misdemeanor child abuse. He was released from the Department of Corrections on 15 August 2020.
¶ 12 Review hearings were held on 9 May 2019, 8 August 2019, and 2 July 2020. After each hearing, the trial court entered an order finding that respondent-father had not made adequate progress within a reasonable time under the reunification plan. On 12 August 2020, HCDSS moved to terminate respondent-father's parental rights in Andrew.2 In support of its motion to terminate respondent-father's parental rights, HCDSS alleged that: (1) Respondent-father neglected Andrew, and it was probable there would be a repetition of neglect if Andrew were returned to Respondent-father's care, see N.C.G.S.§ 7B-1111(a)(1) (2021) ; and (2) Respondent-father had willfully left Andrew in foster care for more than twelve months without showing reasonable progress under the circumstances to correct the conditions that led to Andrew's removal, see N.C.G.S. § 7B-1111(a)(2) (2021).
¶ 13 The motion to terminate respondent-father's parental rights was heard on 4 February 2021. On 15 February 2021, the trial court entered an order terminating respondent-father's parental rights, on two grounds. First, pursuant to N.C.G.S. § 7B-1111(a)(1), the trial court found that respondent-father neglected Andrew, and there is a probability that such neglect would recur if Andrew was returned to respondent-father's care. Second, pursuant to N.C.G.S. § 7B-1111(a)(2), the trial court found that Respondent-father willfully left Andrew in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting the conditions which led to Andrew's removal. The trial court determined it is in Andrew's best interests that Respondent-father's parental rights be terminated. Respondent-father appeals.
¶ 14 Respondent-father's first argument on appeal is that the trial court erred in terminating his parental rights in Andrew based upon neglect pursuant to N.C.G.S. § 7B-1111(a)(1). Respondent-father contends that the trial court's findings of fact were insufficient to establish that there is a probability that his neglect of Andrew is either continuing or likely to reoccur in the future. Respondent-father also argues that because some of the trial court's challenged findings of fact relating to its determination of neglect are unsupported by clear and convincing evidence, the trial court erred in concluding that his parental rights in Andrew were subject to termination. We hold that the trial court's findings are supported by the evidence and are sufficient to support its determination that there is a likelihood that Andrew would be neglected in the future if returned to respondent-father's custody.
¶ 15 A trial court may terminate an individual's parental rights if 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, guardian, custodian, or caretaker does not provide proper care, supervision, or discipline; or who has been abandoned; ... or who lives in an environment injurious to the juvenile's welfare." N.C.G.S. § 7B-101(15) (2019). "Termination of parental rights based upon this statutory ground [under N.C.G.S. § 7B-1111(a)(1) ] requires a showing of neglect at the time of the termination hearing ...." In re D.L.W. , 368 N.C. 835, 843, 788 S.E.2d 162 (2016). A prior adjudication of neglect is not determinative in a termination-of-parental-rights proceeding. In re J.W. , 173 N.C. App. 450, 455, 619 S.E.2d 534 (2005) ; In re Stewart , 82 N.C. App. 651, 653, 347 S.E.2d 495 (1986).
¶ 16 However, "if the child has been separated from the parent for a long period of time, there must be a showing of past neglect and a likelihood of future neglect by the parent." In re D.L.W. , 368 N.C. at 843, 788 S.E.2d 162. This is because "in most termination cases the children have been removed from the parent[’s] custody before the termination hearing." In re Beasley , 147 N.C. App. 399, 404, 555 S.E.2d 643 (2001). In such a situation, "[a] parent's failure to make progress in completing a case plan is indicative of a likelihood of future neglect." In re M.A. , 374 N.C. 865, 870, 844 S.E.2d 916 (2020) (quoting In re M.J.S.M. , 257 N.C. App. 633, 637, 810 S.E.2d 370 (2018) ). The trial court...
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