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.
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
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.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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