In The Matter Of: K.S. (i) & K.S. (ii)
| Decision Date | 17 August 2010 |
| Docket Number | NO. COA10-371,No. 07 JT 1054-55,COA10-371,07 JT 1054-55 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: K.S. (I) & K.S. (II), Minor children. |
Kathleen Arundell Widelski, Mecklenburg County Department of Social Services, Youth and Family Services, for Petitioner.
Pamela Newell, GAL Appellate Counsel, for guardian ad litem.
Wyrick Robbins Yates and Ponton, LLP, by Edward Eldred, for Respondent.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by Respondent-Mother from order entered 5 January 2010 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 20 July 2010.
This case arises from the following proceedings: On 17 December 2007, the Mecklenburg County Department of Social Services ("DSS") filed a petition alleging that Respondent-Mother's ("Respondent") minor children, Karen and Kelly, 1 were neglected and dependent. On 25 February 2008, the trial court adjudicated both juveniles as neglected and dependent. On 27 February 2009, Petitioner filed a motion to terminate Respondent's parental rights. On 5 January 2 010, the trial court entered an order terminating Respondent's parental rights to the juveniles pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6). Respondent filed notices of appeal on 2 February 2010 with respect to each child.
The trial court's findings of fact show the following: Karen was born in 2 000, and Kelly was born almost four years later. On or about 8 August 2007, Karen was injured while in Respondent's home. Respondent and the children were the only ones in the home at that time. Before the incident occurred, Respondent had stopped taking her prescription medications because she had misplaced them during a move. As a result of this incident, Respondent was charged with misdemeanor child abuse. The charge was dismissed after the police officer twice failed to appear in court. The juveniles were returned to the home of their maternal grandparents, where they had previously resided. Respondent was asked to undergo a psychological evaluation, but refused.
After Petitioner filed a juvenile petition on 17 December 2007 alleging that the two juveniles were neglected and dependent, Respondent entered into a case plan in which she agreed to (1) obtain a parenting capacity evaluation and follow through with all recommendations; (2) sign medical and other releases and take prescribed medications; (3) complete parenting classes; (4) maintain safe, stable and appropriate housing for herself and the juveniles; (5) contact the social worker at least weekly; (6)cooperate with the guardian ad litem; (7) attend the juveniles' medical and therapy appointments; and (8) regularly visit the juveniles.
Respondent has medical and mental health issues. Over the course of seven separate sessions from July to September 2008, Respondent underwent a psychological evaluation which revealed that her judgment and insight appeared "somewhat below average." Respondent has a history of psychosis, obsessive compulsive disorder, depression, and narcolepsy. She was involuntarily hospitalized at Broughton Hospital in January 2008 for 14 days.
Respondent's "psychological resources for coping with stressors are limited" and she has "disruptions in the clarity of her thought processes." Although she has "demonstrated sufficient awareness of what is necessary as a parent to provide for appropriate care of a child," Respondent's psychological issues "are likely to result in [Respondent] sometimes behaving in ways that are ineffective, inappropriate, or otherwise not in response to what a situation actually requires." Respondent did not exhibit psychotic behavior during the evaluation, but she "did exhibit signs of irrational thought combinations which are consistent with thought disorder associated with psychosis." Given Respondent's mental health issues, proper medication management and therapy are essential to her ability to contribute financially and emotionally to caring for her children.
In December 2008, Respondent had self-inflicted sores on her face when she appeared for a DSS Youth and Family Services teamdecision-making meeting. During the meeting, she appeared fidgety and anxious and continuously looked over her shoulder and around the room. Respondent attended another team decision-making meeting shortly thereafter. The sores on her face had worsened. She left the meeting to lie on a couch, where she remained for two hours. She never returned to the meeting.
At a permanency planning hearing on 2 3 December 2 0 08, the trial court ordered that reunification efforts cease and that the goal for the juveniles be changed to termination of parental rights ("TPR"). DSS was ordered to continue to assist Respondent if she requested assistance. Respondent then missed two scheduled visits with the juveniles in January 2009. The juveniles exhibited increased negative behaviors after these missed visits. Thereafter, DSS filed a motion to terminate Respondent's parental rights.
Between the filing of the TPR motion and the commencement of the TPR hearing on 5 November 2 009, Respondent failed to supply any proof that she was participating in mental health therapy or complying with her medication regimen. Respondent has not participated in any consistent mental health therapy since May 2008. As of the date of the hearing, Respondent continued to live at an assisted living facility, where she had resided since April 2008. Respondent receives a monthly check for disability in the amount of $650, of which all but $30 is paid as rent to the assisted living facility where she resides. She has not demonstrated any ability to meet the basic needs of the juveniles.
Respondent had no plan as to where the juveniles could reside if the court did not terminate her parental rights. The juveniles were originally placed with their maternal grandparents. During this placement, the maternal grandfather would leave the juveniles with Respondent despite instructions not to allow unsupervised contact between Respondent and the juveniles. On one occasion, the maternal grandmother left Kelly with Respondent, who was in a catatonic state at the time. The maternal grandmother also engaged in inappropriate conversations during visitation. The maternal grandmother would pay attention to one child while ignoring the other. Respondent does not believe her parents' home is an appropriate placement for the juveniles.
In addition to the maternal grandparents, a maternal great aunt expressed interest in being a placement for the juveniles. Her home, however, had not been approved for placement because a home study was not completed. The great aunt has not been proactive in seeking placement or completion of the home study. She also has two other children in her home and lacks an understanding of Karen's mental health needs. The juveniles are currently placed together in a foster home.
Karen and Kelly both participate in therapy. Karen is a different child since she entered foster care. She is calm and appropriate in her interactions, articulate and affectionate, and is bonding with her foster parents. Kelly participates in speech therapy and she now speaks at an age-appropriate level. She exhibits more positive behaviors and appropriate interactions. Sheis also bonding with the foster parents. Karen and Kelly are the only two children in the home of the foster parents, who have expressed interest in adopting them. Karen has not fared well in foster homes where there are other children besides Kelly. Karen has difficulty interacting with other children.
The trial court concluded that DSS proved by clear, cogent, and convincing evidence the existence of the following grounds to terminate Respondent's parental rights: (1) that she has neglected the juveniles and repetition of the neglect remains probable; (2) that she willfully left the juveniles in foster care for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juveniles; and (3) that she is incapable of providing for the proper care and supervision of the juveniles such that the juveniles are dependent within the meaning of N.C. Gen. Stat. § 7B-101 and a reasonable probability exists that such incapability will continue for the foreseeable future. See N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (6). The court concluded that termination of Respondent's parental rights and adoption are in the juveniles' best interests, and thereupon entered an order terminating Respondent's parental rights to Karen and Kelly. From this order, Respondent appeals.
Proceedings to terminate parental rights occur in two phases: (1) the adjudication phase, and (2) the disposition phase. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). In the adjudication phase, the burden of proof is on the petitioner; findings made by the trial court must be supported by clear, cogent, and convincing evidence, and the findings must support a conclusion that at least one statutory ground for the termination of parental rights exists. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). A trial court's determination that at least one ground for termination exists will be overturned only upon a showing by the respondent that there is a lack of clear, cogent, and convincing competent evidence to support the findings. In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609 (1982). The trial court's "findings of fact are conclusive on appeal if they are supported by 'ample, competent evidence, ' even if there is evidence to the contrary." In re J.M.W., 179 N.C. App. 788, 792, 635...
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