Appeal by respondents from a judgment entered 30 November 2004
by Judge Elizabeth D. Miller in Mecklenburg County District Court.
Heard in the Court of Appeals 8 February 2006.
Associate County Attorney Twyla H. George for Mecklenburg
County Youth & Family Services petitioner-appellee.
Attorney Advocate Jeannie Brown, Guardian ad Litem.
Katharine Chester for respondent-mother.
Richard E. Chester for respondent-father.
BRYANT, Judge.
Respondents (mother, T.H.
(See footnote 1)
and father, W.D.) appeal from a 30
November 2004 adjudication order changing the goal from
reunification to termination and adoption of C.J.H.-D., their
newborn son.
Respondents began dating each other in 2001. Both have been
perpetrators of domestic violence in their relationship. In June
2002, C.J.H.-D.'s sibling, T.D. and half-brother, K.H. were removed
from respondents' custody and placed in the custody of DSS
(Department of Social Services, Youth & Family Services for
Mecklenburg County) as a result of respondents' adversarialrelationship, which included arguments and physical altercations.
After K.H. and T.D. were adjudicated neglected and dependant in
2002, the trial court developed and adopted a case plan to address
previously identified issues with respondents. Respondent mother
was required to complete domestic violence treatment, maintain
housing, maintain employment, visit the children, and complete
parenting classes. Respondent father was required to address
substance abuse issues, attend parenting classes, address domestic
violence issues and attend visits with the children. DSS made
several referrals to respondents to assist them with complying with
the trial court's case plan.
In February 2003, respondent mother completed a twelve week
domestic violence treatment program. In the program respondent
mother learned what domestic violence signs to look for in a
potential mate, how to keep domestic violence incidents from
occurring, and how to establish a safety plan if involved in a
domestic violence situation. After completing domestic violence
counseling on 25 October 2003 and after arguing with respondent
father over the phone, respondent mother went to see respondent
father and the two became involved in an altercation. EMS medics
and a Mecklenburg County Police Officer responded to the scene.
In December 2003 and January 2004, respondents saw a parenting
capacity evaluator who was not informed of the October 2003
incident. Respondent mother denied the incident when speaking with
a social worker. Respondent father does not recall whether he
informed DSS of the incident. Accordingly, respondent mother wasnotified that the trial court and DSS had concerns regarding her
honesty.
Despite the trial court ordering otherwise, respondents have
maintained an ongoing relationship. Respondent mother had been
previously notified that continued contact with respondent father
could impact reunification. From 2002 until 2004, respondents
informed DSS they did not have a relationship. However, C.J.H.-D.
was conceived in 2003 and born to respondents in 2004.
(See footnote 2)
At the
time of C.J.H.-D.'s birth, his siblings K.H. and T.D. had been in
DSS custody for approximately two years. Shortly after C.J.H.-D.'s
birth, and pursuant to a trial court order dated 1 April 2004,
C.J.H.-D. was placed in DSS custody for having been “exposed to a
substantial risk of physical injury . . . because the parent[s] .
. . inflicted injury or abuse; created the conditions causing the
injury, abuse, or exposure; failed to provide or [are] unable to
provide, adequate supervision or protection[.]” Even after C.J.H.-
D. was placed in DSS custody, respondents continued to visit each
other.
On 30 November 2004, the trial court entered an order finding
and concluding C.J.H.-D. was neglected and dependent and continued
his placement in foster care. In addition, the trial court ordered
the permanent plan for C.J.H.-D. be changed to termination of
parental rights and adoption. From that order, respondents appeal.
________________________________
Respondent mother raises three issues on appeal: whether the
trial court erred in (I) concluding the juvenile was neglected and
dependent based on clear, cogent and convincing evidence; (II)
ordering the permanency plan changed to adoption; and (III)
entering a permanency plan without making the requisite findings of
fact. Respondent father raises several issues on appeal: whether
the trial court erred in (IV) taking judicial notice of and
considering evidence of prior case orders; (V) making findings of
fact and conclusions of law which failed to support the trial
court's order concluding neglect of the juvenile as to respondent
father; and (VI) ordering that the case proceed to termination of
parental rights.
I
Respondent mother argues the trial court erred in concluding
C.J.H.-D. was neglected and dependent because there was
insufficient clear, cogent and convincing evidence. We disagree.
N.C. Gen. Stat. § 7B-101(15) defines a neglected individual in
pertinent part as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent . . . or who lives in an environment
injurious to the juvenile's welfare . . . . In
determining whether a juvenile is a neglected
juvenile, it is relevant whether that juvenile
lives in a home where another juvenile
has . . . been subjected to abuse or neglect
by an adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2005).
An adjudicatory hearing is held to determine the existence or
nonexistence of any of the conditions alleged in a petition. N.C.Gen. Stat. § 7B-802 (2005). “The allegations in a petition
alleging abuse, neglect, or dependency shall be proved by clear and
convincing evidence.” N.C. Gen. Stat. § 7B-805 (2005). “Where the
trial court sits without a jury and hears the evidence in a neglect
adjudication, the facts found by the trial court are binding on an
appellate court if supported by clear and convincing competent
evidence.”
In re McLean, 135 N.C. App. 387, 394, 521 S.E.2d 121,
125 (1999). “A proper review of a trial court's finding of . . .
neglect entails a determination of (1) whether the findings of fact
are supported by 'clear, cogent, and convincing evidence,' and (2)
whether the legal conclusions are supported by the findings of
fact.”
In re Pittman, 149 N.C. App. 756, 763-64, 561 S.E.2d 560,
566 (2002) (citation omitted).
In order to sustain an adjudication of neglect, the courts
have “required there be some physical, mental, or emotional
impairment of the juvenile
or a substantial risk of such impairment
as a consequence of the failure to provide proper care,
supervision, or discipline.”
In re Stumbo, 357 N.C. 279, 283, 582
S.E.2d 255, 258 (2003) (neglect existed where “the conduct at issue
constituted either severe or dangerous conduct or a pattern of
conduct either causing injury or potentially causing injury to the
juvenile”) (emphasis added) (quotation omitted);
see In re Helms,
127 N.C. App. 505, 512, 491 S.E.2d 672, 676 (1997) (child
adjudicated a neglected juvenile where the child was substantially
at risk due to the instability of her living arrangements and
through repeated exposure to violent individuals in the home). In the case
sub judice, respondents have been involved in a
dating relationship since 2001 which has been plagued with acts of
domestic violence. In 2002, because of the nature of their
relationship, respondent father's substance abuse and respondents'
inability to maintain stable housing, C.J.H.-D.'s siblings were
placed in DSS custody. The siblings were adjudicated neglected and
a case plan was developed to assist respondents in addressing the
issues that led to neglect. Implicit in this case plan development
was the requirement that there be meaningful changes in the lives
of respondents such that the children could be returned to a safe,
appropriate environment.
In re Nolen, 117 N.C. App. 693, 699, 453
S.E.2d 220, 224 (1995). Even though respondent mother had
completed a domestic violence prevention course prior to the birth
of C.J.H.-D., the trial court stated “the court does not find that
[respondent mother] has been able to apply anything that she
learned” from that course. Despite attempts to educate and correct
respondents' domestic violence incidents, another incident of
domestic violence occurred after C.J.H.-D.'s siblings had been
placed in DSS custody. The trial court found that on 25 October
2003, the mother went to the father's home to retrieve her
belongings. The father struck the mother and kneed her in the
abdomen while she was five months pregnant with C.J.H.-D. The
mother shoved the father. Respondents attempted to hide the
October 2003 incident from the trial court, DSS and the parenting
capacity evaluator. The trial court found that even after all the
assistance from DSS and several educational programs, respondentmother did not help her circumstance with C.J.H.-D. -- that
responsibility “rest[ed] squarely on [respondent mother's]
shoulders because of her inability to be honest and
straightforward.” Additional evidence before the trial court
supported that C.J.H.-D. was neglected: respondent father's
admission that he planned to continue using marijuana after
completion of a substance abuse program; mother's inability to
maintain stable housing in 2003; and mother's inability to pay
household expenses in June 2004. These concerns led to the removal
of C.J.H.-D. from respondent mother's care. Further these concerns
had not been fully addressed at the time C.J.H.-D. was adjudicated
neglected.
See In re Davis, 116 N.C. App. 409, 414, 448 S.E.2d
303, 306 (1994) (“failing to take steps to correct the
circumstances leading to [the juvenile's] adjudication as a
neglected juvenile and placement in foster care, despite having
approximately two years to do so before the petition for
termination of parental rights was filed, respondent [had] not
provided 'proper care, supervision and discipline' and [had] not
corrected the environment 'that is injurious to [the juvenile's]
welfare.'”). The trial court also adjudicated C.J.H.-D. dependent
with respect to both parents. However, “where the trial court
finds multiple grounds on which to base a termination of parental
rights, and 'an appellate court determines there is at least one
ground to support a conclusion that parental rights should be
terminated, it is unnecessary to address the remaining grounds.'”
In re P.L.P., ___ N.C. App. ___, ___, 618 S.E.2d 241, 246 (2005)(quoting
In re Clark, 159 N.C. App. 75, 78, 582 S.E.2d 657, 659 n.3
(2003)). This assignment of error is overruled.
II
Respondent mother next argues the trial court abused its
discretion when it failed to return the juvenile to his mother or
to place the juvenile with a relative and instead, ordered the
permanent plan for the juvenile to be adoption. We disagree.
The purpose of a dispositional hearing is to develop a plan to
meet the needs of the juvenile and to achieve the objective of the
State in exercising jurisdiction. “If possible, the initial
approach should involve working with the juvenile and the
juvenile's family in their own home so that the appropriate
community resources may be involved in care, supervision, and
treatment according to the needs of the juvenile.” N.C. Gen. Stat.
§ 7B-900 (2005). A trial court may consider any evidence,
including hearsay evidence that the court finds to be “relevant,
reliable, and necessary to determine the needs of the juvenile and
the most appropriate disposition.” N.C. Gen. Stat. § 7B-901
(2005). At the disposition phase, the standard of review on appeal
is abuse of discretion.
In re Yocum, 158 N.C. App. 198, 206, 580
S.E.2d 399, 403,
aff'd per curiam, 357 N.C. 568, 597 S.E.2d 674
(2003).
As addressed in
Issue I, respondent mother was not a placement
alternative for C.J.H.-D. If certain statutory criteria are met,
the trial court must order placement of the child with a relative
unless the trial court finds that placement with the relative wouldnot be in the child's best interests. N.C. Gen. Stat. § 7B-505
(2005). Initially, DSS allowed placement of C.J.H.-D. with
respondent mother's cousin. Such placement was based on respondent
mother stating she no longer was involved with respondent father;
however the trial court found that the mother had lied with respect
to her relationship with respondent father. The trial court cited
respondent mother's lack of credibility, the fact that DSS had
provided the parents with access to sufficient service programs,
and extra time in which to comply with the court adopted case plan
to attempt to achieve reunification. The trial court further found
“[r]easonable efforts to eliminate the need for placement shall
cease pursuant to 7B-507(b) [and the trial court] specifically
[found] efforts to reunite would be futile and [] inconsistent with
the juvenile's health, safety, and need for a safe permanent home
within a reasonable period of time.” Based on these findings and
conclusions, we find the trial court did not abuse its discretion
in ordering C.J.H.-D. to be placed in DSS custody. This assignment
of error is overruled.
III
Respondent mother next argues the trial court erred in
entering a permanent plan for the juvenile and failed to make the
required findings of fact in violation of her constitutional
rights. We disagree.
The trial court in any order placing a juvenile in DSS
custody, shall decide whether reunification efforts should be made
or eliminated. N.C. Gen. Stat. § 7B-507(b) and (b1) (2005). “Indetermining reasonable efforts to be made with respect to a
juvenile and in making reasonable efforts, the juvenile's health
and safety shall be the paramount concern.”
N.C. Gen. Stat. § 7B-
507(d) (2005).
In the present case, the trial court considered DSS reports,
the GAL report, the previously adopted case plan, and the siblings'
juvenile files. The trial court also considered all the services
previously provided respondents as well as their response to the
offered services. The trial court found that due to the extended
length of time required to complete the adjudicatory hearing,
respondents were also given extra time to comply with the service
programs and respondents failed to take advantage of the
opportunities. The trial court found that there were no additional
services that could be offered to respondents. Therefore,
reunification efforts would be futile, or inconsistent with the
health, safety, and need for a safe permanent home within a
reasonable amount of time. The goal for C.J.H.-D.'s siblings was
adoption.
See In re M.J.G., 168 N.C. App. 638, 608 S.E.2d 813
(2005) (order affirmed ceasing reunification efforts at the
dispositional hearing when the mother had one child in custody and
an order ceasing reunification efforts had been entered; mother had
a second child who was later placed in DSS custody; mother had not
made progress on the previously adopted plan; and was not making
sufficient progress by the dispositional hearing of the second
child). Here, the trial court ceased reunification efforts at
disposition. The trial court had sufficient evidence to conclude
the C.J.H.-D. was a neglected juvenile. “The natural and legal
right of the parents to the custody, companionship, control, and
bringing up their children . . . may be interfered with or denied
for substantial and sufficient reason, and it is subject to
judicial control when the interest and welfare of the child require
it.”
In re Stratton, 153 N.C. App. 428, 433, 571 S.E.2d 234, 237
(2002) (citation omitted). After having worked closely with
respondents for over two years and considering the lack of response
to the services provided, the trial court properly found that
obtaining a safe, permanent home in a reasonable period of time is
in the best interest of the juvenile. This assignment of error is
overruled.
IV
Respondent father argues the trial court erred in taking
judicial notice and considering evidence of prior case orders. We
disagree.
The trial court adjudicated T.D. at six months old to be
dependent as to the father and neglected as to the mother. K.H.
was adjudicated neglected as to the mother. A juvenile is
dependent where he is “in need of assistance or placement because
the juvenile has no parent, guardian, or custodian responsible for
the juvenile's care or supervision or whose parent, guardian, or
custodian is unable to provide for the care or supervision and
lacks an appropriate alternative child care arrangement[.]” N.C.Gen. Stat. § 7B-101(9) (2005). “Under this definition, the trial
court must address both (1) the parent's ability to provide care or
supervision, and (2) the availability to the parent of alternative
child care arrangements.”
In re P.M., 169 N.C. App. 423, 427, 610
S.E.2d 403, 406 (2005). When considering whether a juvenile is
neglected, “it is relevant whether that juvenile . . . lives in a
home where another juvenile has been subjected to abuse or neglect
by an adult who regularly lives in the home.” N.C.G.S. § 7B-
101(15) (2005). The court may consider abuse of other children in
determining the custody of a child who has not yet been abused, and
the court in its discretion decides what weight to be given that
evidence.
In re Nicholson, 114 N.C. App. 91, 94, 400 S.E.2d 852,
854 (1994).
The evidence that this trial court considered regarding the
prior dependency adjudication of C.J.H.-D.'s siblings included:
respondent father suffers from sickle cell anemia; respondent
father planned to allow respondent mother to be the children's
primary caretaker; and the trial court had reservations about
respondent father's ability to protect T.D. and K.H. given that
respondent mother lied about the respondents' relationship in order
for DSS to agree to place the children with a relative. The
evidence considered in the prior cases with respect to a neglect
adjudication for C.J.H.-D.'s siblings included that: respondents
argue in front of the children; police have been called to the home
to address incidents of domestic violence; the father stipulated to
committing acts of domestic violence with the mother (e.g. assaulton a female and communicating threats); the father is unwilling to
receive treatment for domestic violence; in addition to domestic
violence, the problems which led to adjudication and which must be
corrected include providing stable housing, treating mental
illness, obtaining substance abuse treatment, and meeting the needs
of the children.
In the present case, C.J.H.-D. was an infant at the time of
the adjudication. Respondent father failed to address the issues
that led to placement of C.J.H.-D.'s siblings in DSS custody.
Respondent father likewise failed to rectify the same issues by the
time of C.J.H.-D.'s birth. The trial court properly considered the
prior adjudications of neglect and dependency as to C.J.H.-D.'s
siblings in determining respondent's neglect of C.J.H.-D.
See In
re E.N.S., 164 N.C. App. 146, 595 S.E.2d 167 (2004) (prior
adjudication of a sibling's neglect considered as evidence of
respondent's continued neglect of his other children)
and In re
D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005) (children were
dependent where the parents were neither able to care for them nor
did they suggest appropriate alternate replacements; the father's
proposed replacement was insufficient because there was no evidence
that his aunt was willing or able to care for the children). This
assignment of error is overruled.
V
Respondent father argues the trial court erred in making
findings of fact and conclusions of law in support of the trial
court's order concluding the juvenile was neglected as torespondent. For many of the reasons discussed in
Issue I supra, we
disagree.
“The trial judge determines the weight to be given the
testimony and the reasonable inferences to be drawn therefrom. If
a different inference may be drawn from the evidence, he alone
determines which inferences to draw and which to reject.”
In re
Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985) (citing
Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968)).
As long as competent evidence supports the findings of the trial
court, they are binding on appeal, despite evidence to the
contrary.
Id.
The trial testimony from respondents and several witnesses, in
addition to the DSS reports and other evidence, led the trial court
to find that: respondents have admitted to a history of domestic
violence with each other; respondents continued to have a
relationship with each other which exposed C.J.H.-D. to danger and
created an environment in which C.J.H.-D. was neglected; respondent
father did not complete domestic violence treatment and is
unwilling to accept such treatment; and there is a continued risk
of domestic violence between the parents such that C.J.H.-D.
continues to be at risk of neglect. Based on these extensive
findings the trial court ordered that “C.J.H.-D. is adjudicated
neglected and dependent as to the father[.]” After careful and
thorough review, we find the trial court did not err in concluding
the juvenile was neglected as to respondent father. This
assignment of error is overruled.
VI
Respondent father argues the trial court erred in ordering
that the case proceed to termination of parental rights.
North
Carolina General Statutes, Section 7B-507(a) states:
An order placing or continuing the placement
of a juvenile in the custody or placement
responsibility of a county department of
social services, whether an order for
continued nonsecure custody, a dispositional
order, or a review order:
(2) Shall contain findings as to whether
a county department of social services has
made reasonable efforts to prevent or
eliminate the need for placement of the
juvenile, unless the court has previously
determined under subsection (b) of this
section that such efforts are not required or
shall cease[.]
N.C.G.S. § 7B-507(a) (2005). North Carolina General Statutes,
Section 7B-507(b) states:
[T]he court may direct that reasonable efforts
to eliminate the need for placement of the
juvenile shall not be required or shall cease
if the court makes written findings of fact
that:
(1) Such efforts clearly would be futile
or would be inconsistent with the juvenile's
health, safety, and need for a safe, permanent
home within a reasonable period of time.
N.C.G.S. § 7B-507(b) (2005).
The trial court made the finding that DSS “previously provided
reasonable efforts to the parents to address the issues that led to
[DSS] custody. The parents did not take full advantage of the
service programs. There are no other services available that [DSS]
can offer the parents.” The trial court specifically found that
efforts to reunite would be futile and inconsistent with C.J.H.-D.'s health, safety, and need for a safe permanent home within a
reasonable period of time. The trial court concluded DSS “has made
reasonable efforts since the initial (7-Day) hearing to prevent or
eliminate the need for placement of the child in foster care.”
After making numerous findings of fact based on clear and
convincing evidence, taking into consideration the needs of C.J.H.-
D., and the available resources, the trial court found that it was
in the best interests of the juvenile to cease reunification
efforts. This assignment of error is overruled.
Affirmed.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
Footnote: 1