IN THE MATTER OF:
C.J.H, H.H., Davidson County
T.W.H. and T.H. Nos. 05 J 184-187
Charles E. Frye, III, for petitioner-appellee Davidson County
Department of Social Services.
Laura B. Beck, for appellee Guardian ad Litem.
Thomas B. Kakassy, for respondent-appellant.
LEVINSON, Judge.
Respondent father appeals from orders terminating parental
rights to his minor sons, T.W.H., T.H., C.J.H., and his minor
daughter, H.H. (collectively “the children”). For the following
reasons, we affirm the trial court's orders.
The facts pertinent to the instant appeal are as follows: In
October of 2002, Davidson County Department of Social Services
(DSS) substantiated a neglect report that one of the four children
had been tied to the front porch and left there approximately three
hours while respondent father and the mother were inside the house.
Respondent father admitted tying T.W.H. to the front porch with a
“tie strap” because the child kept attempting to enter the woods
while respondent father was working on his vehicle. DSS referredthe family for services. DSS substantiated another report of
neglect in April of 2003, in that the parents had left T.W.H. with
someone whom they knew DSS had recently found to act sexually
inappropriately with a child. The family's case was sent to case
planning and management. In February of 2004, DSS substantiated a
neglect report in that the mother had been admitted to the hospital
due to “suicidal ideation and a nervous breakdown.” Upon
investigation, DSS found issues of domestic violence and substance
abuse in the home.
DSS filed juvenile petitions on 18 March 2004 alleging
neglect and dependency of respondent father's four children. The
petition alleged that on 18 March 2004, T.W.H. had been brought to
DSS with a puncture wound on the palm of his hand and that the
minor child communicated that respondent father “had pulled a knife
from his pocket and cut [T.W.H.] for having urinated in his pants.”
The petition also alleged that respondent father admitted to
slashing the tires of the mother's van after an argument during
which the children were present. The petition further alleged that
the mother was diagnosed with major depression, marijuana abuse and
benzodiazepine abuse. DSS took non-secure custody of the children
that day.
At the adjudication hearing, respondent father and the mother
stipulated that the minor children were neglected and dependent
based upon the allegations set out in the juvenile petitions. By
order entered 6 July 2004, the children were adjudicated neglected
and dependent. The trial court ordered respondent father and themother to enter into a voluntary support agreement and pay child
support; attend domestic violence counseling; attend abusers
treatment group; obtain and maintain suitable housing; obtain and
maintain gainful employment; obtain a psychological evaluation; and
comply with substance abuse treatment. The initial permanent plan
of care was reunification of the minor children with their parents.
Although the mother abandoned her case plan, respondent father
worked with social worker Larry Gillespie of the Community Link
Program and DSS social worker Kathy Melice towards his goal of
reunification with his children. By permanency review order
entered June of 2005, the trial court found that respondent father
had obtained safe housing; continued to be employed; completed
substance abuse treatment and followed through with
recommendations; completed domestic violence treatment; was not in
need of mental health treatment at that time; consistently
maintained his visitation; and had meals prepared and special
events planned when the children visit him. The court also found
“[i]t has been observed that [respondent father] has great
difficulty maintaining a level of safe supervision and intervention
of all four children on his own. [Respondent father] has shown the
ability to keep control and set limits for the children T.W.H. and
T.H., and then H.H. and C.J.H. when the visits take place
separately.” The trial court changed the plan of care to a
concurrent plan of reunification with his children and termination
of parental rights. Upon holding a review and permanency planning hearing on 1
August 2005, the trial court entered an order in which it found
that respondent father had completed the Community Links Program
with Mr. Gillespie and made progress with his ability and
understanding of parenting without force and physical punishment;
that respondent father had, at times, “placed wanting to please the
boys over good parental judgment[;]” and that he “still requires
reminding to follow through with discipline and house rules and
routines with the boys.” The trial court further found that
visitation with the four children was often chaotic, that
respondent father had difficulty maintaining good supervision of
the four children, and that intervention from a social worker is
often needed. Finally, the court found that “[t]he Agency and the
children's guardian ad litem feel that [respondent father] may be
successful caring and providing for the two oldest children with
continued supportive services.” The trial court then ordered a
trial placement of T.W.H. and T.H. with respondent father for
ninety days.
T.W.H. and T.H. were placed with respondent father on 2 August
2005 for a trial basis and were returned to their initial foster
care placement on 24 August 2005. By review and permanency
planning order entered 30 January 2006, the trial court found that
T.W.H. and T.H. were removed from respondent father's home “due to
the instability of [respondent father's] care of the children and
the father's response to the actions of the boys.” The trial court
further found that respondent father was determined to haveborderline mental function and mild mental retardation; and that
despite having completed the requirements of his case plan,
respondent father “has not derived the ability to provide safe and
adequate care for the children. Further, there is no indication
that he will be able to acquire or develop such skills.” The plan
of care was subsequently changed to termination of parental rights
and adoption, and respondent father was referred for a mental
health assessment. In subsequent review orders entered in March
and May of 2006, the trial court found that visits were often
chaotic with intervention needed by a social worker.
On 18 October 2005, DSS filed petitions to terminate the
parental rights of respondent father under N.C. Gen. Stat. §
7B-1111(a)(1)(neglect); N.C. Gen. Stat. § 7B-1111 (a)(2) (willfully
left the child in foster care or placement outside the home); and
N.C. Gen. Stat. § 7B-1111 (a)(3) (failure to pay a reasonable
portion of the cost of care for the child). On 23 October 2006,
the trial court concluded that grounds for termination of
respondent father's parental rights existed under all three
grounds. The trial court further concluded that it was in the
minor children's best interest to terminate respondent father's
parental rights. The trial court also terminated the parental
rights of the mother, who does not appeal. Respondent father
appeals.
Respondent father first contends certain findings of fact made
by the trial court are not supported by “clear, cogent and
convincing evidence.” We disagree. Respondent father first challenges findings eighteen and
twenty-four. These findings are summarized as follows: respondent
father had difficulty maintaining good supervision of the children,
maintaining a task with the children, following through with any
discipline or redirection; respondent father was overwhelmed with
managing the children and was unable to exercise consistent
parenting with good supervision and judgment; and respondent father
showed an inability to control the children or implement the
practices he had been taught during the trial placement of T.W.H.
and T.H.
Court orders entered and hearing testimony show that
respondent father had difficulty implementing the parental skills
he learned. The trial court, in its permanency planning order
filed 29 August 2005, found that respondent father had “difficulty
maintaining task with any of the children and following through
with any discipline or redirection and appears at times to be
overwhelmed with the management of the four children.” Despite
these concerns, the trial court, upon the recommendation of DSS and
the children's guardian ad litem, ordered a trial placement of T.H.
and T.W.H. with respondent. In an order entered after the
placement, the trial court found that during home visits
“[respondent father] did not follow through on one of his attempts
to redirect his children[;]” that respondent father “had little
control over the boys[;]” that respondent father and T.W.H.
“continued to argue and the yelling escalated when the child would
not comply with the attempts made by [respondent] to redirect;” andthat respondent father “was not able to establish control[.]” At
the termination hearing, DSS social worker Kathy Melice testified
that “[t]there was a large need for continued reminders of
supervision” and that respondent father “struggled” and had
difficulty “following through with discipline, making a request or
redirecting one of the children and then following through[.]”
Melice further testified that during the trial placement of T.H.
and T.W.H., she observed that “the children were still out of
control, uncontrolled, un-directed.” We conclude, based upon
competent evidence which included the testimony of Melice, that the
challenged findings are supported by clear and convincing evidence.
Respondent father also challenges finding of fact number
twenty-five which states, in pertinent part, that on 24 August 2005
“[respondent father] had struck T.H. twice, hard enough to leave a
bruise above his buttock area.” At the termination of parental
rights hearing, DSS social worker Kathy Melice testified that when
she visited on 24 August 2005, T.H. informed her that her “father
hit me.” Melice further testified that respondent father admitted
to her that “he had struck T.H. [] just above the buttock area with
his hand” and that respondent father acknowledged that he may have
hit T.H. too hard. And father testified at the termination of
parental rights hearing that he told the social worker that he hit
T.H. twice. We conclude the finding is supported by clear, cogent
and convincing evidence.
Respondent father next contends the trial court erred by
concluding that sufficient grounds existed to terminate hisparental rights based upon a finding that the minor children were
neglected within the meaning of N.C. Gen. Stat. § 7B-101(15). A
trial court may terminate parental rights upon a finding that
“[t]he parent has . . . neglected the juvenile. The juvenile shall
be deemed to be . . . neglected if the court finds the juvenile to
be . . . a neglected juvenile within the meaning of G.S. 7B-101.”
N.C. Gen. Stat. § 7B-1111(a)(1) (2005). Section 7B-101(15) defines
“neglected juvenile” as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law. . . .
N.C. Gen. Stat. § 7B-101(15) (2005). “To prove neglect in a
termination case, there must be clear and convincing evidence:”
that (1) the juvenile is neglected within the meaning of N.C. Gen.
Stat. § 7B-101(15), and (2) “the juvenile has sustained 'some
physical, mental, or emotional impairment . . . or [there is] a
substantial risk of such impairment as a consequence'” of the
neglect. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499,
501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436
S.E.2d 898, 901-02 (1993)).
“A finding of neglect sufficient to terminate parental rights
must be based on evidence showing neglect at the time of the
termination proceeding.” In re Young, 346 N.C. 244, 248, 485
S.E.2d 612, 615 (1997) (citation omitted). “Termination ofparental rights for neglect may not be based solely on past
conditions which no longer exist.” Id. “[A] prior adjudication of
neglect may be admitted and considered by the trial court in ruling
upon a later petition to terminate parental rights on the ground of
neglect.” In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231
(1984). Further, a trial court may also consider evidence of prior
adjudications of neglect of a respondent's other children. See In
re Allred, 122 N.C. App. 561, 564, 471 S.E.2d 84, 86 (1996) (“a
respondent will not be prejudiced in a properly conducted hearing
by the admission of evidence of the prior abuse of another of
respondent's children”).
If the child has been removed from the parents' custody before
the termination hearing, and the petitioner presents evidence of
prior neglect, including an adjudication of such neglect, then
“[t]he trial court must also consider any evidence of changed
conditions in light of the evidence of prior neglect and the
probability of a repetition of neglect.” In re Ballard, 311 N.C.
at 715, 319 S.E.2d at 232. Thus,
[where] there is no evidence of neglect at the
time of the termination proceeding . . .
parental rights may nonetheless be terminated
if there is a showing of a past adjudication
of neglect and the trial court finds by clear
and convincing evidence a probability of
repetition of neglect if the juvenile were
returned to [his or] her parents.
In re Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501.
In addition to findings 18, 24 and 25, the trial court made
the following unchallenged findings with respect to each child tosupport its conclusion that respondent father's parental rights
should be terminated pursuant to G.S. § 7B-1111(a)(1)
:
15. That on July 6, 2004, the above captioned
minor child[ren were] adjudicated to be a
neglected juvenile[s] as defined by G.S. § 7B-
101(15) in that [they] did not receive proper
care, supervision or discipline from [their]
parents and that [they] lived in an
environment injurious to [their] welfare and
was also adjudicated to be a dependent
juvenile as defined by G.S. § 7B-101(9) in
that [they] had no parent to be responsible
for [their] supervision or care. The
respondent parents stipulated at said hearing
that the minor child was a neglected and
dependent juvenile and to the following
circumstances of the child[ren] and [their]
siblings [set out in the juvenile petition.]
. . . .
36.
. . . Despite having completed some of the
requirements of his Case Plans, [respondent
father] has not derived the ability to provide
safe and adequate care for his children. From
the history of his involvement with the
Department of Social Services and the Juvenile
Court there is no realistic indication that he
will be able to acquire, develop or assimilate
such skills and to be able to adequately
parent his children. Although [respondent
father] has made an attempt to regain custody
of the child[ren] he has failed to exhibit
reasonable progress or a positive response
toward the diligent efforts of the Davidson
County Department of Social Services. Even
though he has made some improvements said
respondent has failed to improve his parenting
skills to a level of appropriate care. The
inability to control the children during
periods of visitation and the failure of the
trial placement of TWH and TH within his home
are compelling evidence of the probability of
repetition of neglect if the child were to be
return[ed] to the custody of said respondent.
[Respondent father] has been given every
opportunity to succeed as an individual and as
a parent. Whether it is due to his personal
history of extensive childhood abuse, his lack
of education or his developmental limitations,[respondent father] cannot currently or within
the foreseeable future present the ability to
responsibly care for and supervise his
children.
Our review of the record reveals the trial court had clear,
cogent, and convincing evidence to determine that the children had
been subjected to a history of neglect and were likely to be
similarly neglected in the future. We hold that the findings of
fact support the trial court's conclusion that grounds existed to
terminate respondent father's parental rights under G.S. §
7B-1111(a)(1). As such, we do not address the other grounds for
termination. See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d
900, 903 (1984) (a finding of one statutory ground is sufficient to
support the termination of parental rights).
Finally, respondent father contends the trial court erred by
concluding that termination of his parental rights was in the best
interests of his children. Respondent father questions “whether
separating these children from the father they love will solve any
of their problems[.]”
In determining whether terminating the parent's rights is in
the juvenile's best interest, the court shall consider the
following:
(1) The age of the juvenile.
(2) the likelihood of adoption of the
juvenile.
(3) Whether the termination of parental rights
will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive parent,
guardian, custodian, or other permanent
placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110 (2005).
Here, to support its determination that it was in the best
interests of the child to terminate respondent father's parental
rights, the trial court made the following findings as to each
child:
2) The juvenile is placed with a family who
has committed to providing him with a
permanent home and therefore the likelihood of
adoption is almost certain.
3) This termination of parental rights is the
only barrier to the accomplishment of the
permanent plan for this child.
4) There is a bond between the child and the
respondent/father; however, the Court finds
that it is not a healthy bond or a bond that
is in the best interest of the child. The
Court believes it is in the best interest of
the child to be placed with parents who can
appropriately care for him. That the bond
between the respondent [mother] and the minor
child has been weakened by the abandonment of
the child by said respondent. There is a bond
between the respondent [father] and the
juvenile, however, this relationship is
characterized as being interactive, playful,
chaotic and loving, but does not rise to the
level of appropriate parenting as it does not
include appropriate parenting, discipline or
meeting the educational, medical or
developmental needs of the child.
5) There is an excellent relationship between
the child and the proposed adoptive parents.
The child is bonded with the proposed adoptive
parents.
In addition, the trial court made findings of fact regarding each
child's age. As to T.W.H. and T.H., the court specifically found:
6) Extensive and extraordinary efforts have
been made by the Social Worker in an attempt
to support, prepare and educate [respondent
father] in the many facets of parenting;
however, these efforts have not improved his
ability to care for or to provide a safe home
for the child. No relatives or other suitable
persons have been located who could serve as
guardian or legal custodian of the juvenile.
A home study that was conducted of the
maternal grandparents was denied due to
numerous concerns within the home. Neither of
the respondent parents has provided the
Davidson County Department of Social Services
with the names of relatives or other persons
to be considered as a placement for the
juvenile. Following the failed trial
placement with his father in August, 2005 TWH
and his brother TH returned to the foster home
in which they had been placed in March, 2005.
The foster parents are vested emotionally in
these children and are committed to providing
a permanent home for both of the boys. They
will adopt the children if they become free
for adoption. They have actively sought
therapy for TH's special needs. Said foster
home is an appropriate permanent placement for
the children. The Department of Social
Services has seen the children develop in this
placement and grow to trust, love and become
attached to their foster parents. On December
12, 2005 the permanent plan of care for the
juvenile and his siblings was modified for a
final time to a sole plan of termination of
parental rights and adoption. Termination of
the parental rights of the respondent parents
will aid in the accomplishment of the
permanent plan for the juvenile and in moving
toward the adoption of this child.
With respect to C.J.H. and H.H., the trial court specifically
found:
6) Extensive and extraordinary efforts have
been made by the Social Worker in an attempt
to support, prepare and educate [respondentfather] in the many facets of parenting;
however, these efforts have not improved his
ability to care for or to provide a safe home
for the child. No relatives or other suitable
persons have been located who could serve as
guardian or legal custodian of the juvenile.
A home study that was conducted of the
maternal grandparents was denied due to
numerous concerns within the home. Neither of
the respondent parents has provided the
Davidson County Department of Social Services
with the names of relatives or other persons
to be considered as a placement for the
juvenile. Said foster home is an appropriate
permanent placement for the children. CJH and
his sister, HH, have been within the same
foster home since their initial placement in
March, 2005. The foster parents are vested
emotionally in these children and are
committed to providing a permanent home for
both CJH and HH. They will adopt the children
if they become free for adoption. The
Department of Social Services has seen the
children develop in this placement and grow to
trust, love and become attached to their
foster parents. On December 12, 2005 the
permanent plan of care for the juvenile and
his siblings was modified for a final time to
a sole plan of termination of parental rights
and adoption. Termination of the parental
rights of the respondent parents will aid in
the accomplishment of the permanent plan for
the juvenile and in moving toward the adoption
of this child.
Based upon these findings which reflect a rational reasoning
process, we conclude that the trial court did not abuse its
discretion in its determination that terminating the parental
rights of respondent was in the best interests of the children.
Affirmed.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***