In The Matter Of: D.F.M., Jr. and D.F.M., III
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA11-380 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 IN THE MATTER OF: New Hanover County Nos. 09 JT 24-25 D.F.M., JR. and D.F.M., III Appeal by respondents from order entered 13 January 2011 by Judge Jeffrey Evan Noecker in New Hanover County District Court. Heard in the Court of Appeals 29 August 2011. Regina Floyd-Davis for New Hanover Social Services petitioner-appellee. County Department of Pamela Newell for guardian ad litem. Michael Casterline for respondent-mother appellant. Appellate Defender Staples Hughes, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-father appellant. McCULLOUGH, Judge. Respondents appeal from the trial court s order terminating their parental rights to D.F.M., Jr., and D.F.M., III. We affirm the trial court s order. On 12 December 2008, New Hanover County Department of Social Services ( DSS ) received a report of a homeless family -2in need of assistance. The family consisted of respondent- mother, respondent-father and their almost two-year-old child, D.F.M., Jr. nights. DSS helped the family pay for a motel for a few Thereafter, the family was able to secure housing at a shelter. On 23 January 2009, respondent-mother contacted DSS and advised that the family had moved from the shelter. When DSS visited the family, they had no money, no food, no gas for their vehicle, and only twelve diapers. Respondents admitted they did not have adequate resources to care for D.F.M., Jr. juvenile petition dependent juvenile. alleging D.F.M., Jr., was a DSS filed a neglected and D.F.M., Jr., was placed in DSS s custody. Approximately one month after DSS took custody of D.F.M., Jr., respondent-mother gave birth to a second child, D.F.M., III. He had significant medical Syndrome and a hole in his heart. problems including Down On 26 February 2009, DSS filed a juvenile petition alleging D.F.M., III, was a neglected and dependent juvenile. custody. On 27 May D.F.M., III, was also placed in DSS s 2009, the trial court adjudicated the children neglected and dependent and continued custody with DSS. On 24 February 2010, DSS filed a petition to terminate respondents parental rights. DSS alleged grounds existed to terminate respondents parental rights on the basis of neglect, -3dependency, and that respondents willfully left the children in foster care reasonable for more progress than under twelve the months without circumstances to conditions which led to the children s removal. showing correct The termination of parental rights hearing was held over several days. January 2011, the trial court respondents parental rights. The trial court entered its the order On 13 terminating Respondents appeal. found grounds existed to terminate respondents parental rights on the basis of neglect and that they willfully left the children in foster care. See N.C. Gen. Stat. § 7B-1111(a)(1) (2009). Respondents contend the evidence does not support termination of their parental rights on the basis of neglect. Specifically, respondents contend the evidence does not support a finding that there is a likelihood of repetition of neglect if the children were returned to their care. The standard for appellate review of the trial court s conclusion that grounds exist for termination of parental rights is whether the trial judge s findings of fact are supported by clear, cogent, and convincing evidence, findings support its conclusions of law. and whether these In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174, disc. review denied, -4354 N.C. 218, 554 S.E.2d 341 (2001). [T]he trial court s findings of fact supported by clear and convincing competent evidence are deemed conclusive, supports contrary findings. even where some evidence In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). A neglected juvenile is defined 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) (2009). sufficient evidence to terminate showing neglect parental at the A finding of neglect rights time must of be the based on termination proceeding. In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). 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. Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). In re -5In this case, the trial court made the following relevant findings of fact: 21. That despite [respondent-mother s] past history of alcohol abuse, she continued to consume alcohol. On one of the scheduled supervised visits, [respondent-mother] presented with the odor of alcohol about her breath. At this visit, Social Worker Monroe had to direct that [respondent-mother] refrain from the use of alcohol prior to exercising visitation with her children. Additionally, at one visitation, [respondent-mother] presented with scratch marks. [Respondent-mother] attributed the marks to self-mutilation following an argument between herself and her husband. . . . . 36. That [respondent-mother] has a long history of mental health issues. She is forty-two (42) years old and has had mental health issues since she was twelve (12) years old. . . . . . . . 43. That [respondent-father] has had several periods of employment. He has voluntarily left more than one of his employment opportunities. That [respondentmother s parents] assisted the family financially, including paying for the truck and paying the family s cell phone bills. That the parties no longer have the truck due to their inability to pay for needed repairs. [Respondent-mother s parents] purchased transportation for the family, on 11 September 2010, approximately six (6) days ago. That on this date, [respondentfather] testified that he has employment as a school bus driver for New Hanover County -6Schools, and has been so employed in permanent capacity since August of 2010. a 44. That Margaret Franklin, an employee of Wilmington Preparatory Academy, testified subsequent to [respondent-father]. Ms. Franklin indicated that [respondent-father] had been employed as a school bus driver for the aforementioned academy. On 07 September 2010, ten days prior to this hearing, [respondent-father] appeared for the morning shift of his employment. He failed to return to the Academy to transport the students for the afternoon shift of his employment, and was terminated on 07 September 2010. On this date, 17 September 2010, [respondent-father] was untruthful in his testimony regarding his current employment. 45. That [respondents] have made inappropriate decisions since the inception of this case. Their ability to maintain consistent housing over the past months is due to financial help from the maternal grandparents. The Court is not impressed with [respondent-father s] involvement with vocational rehabilitation services. He has voluntarily left employment at the House of Raeford on two (2) occasions, voluntarily left employment in landscaping on two (2) occasions and failed to return to work for the afternoon shift on his most recent job of driving a school bus last week. His latter action resulted in his present state of unemployment. The parents have not utilized all of the services offered by [DSS]. [Respondent-mother] has not had consistency in mental health treatment; she has taken prescribed medications, but she needed consistent individual counseling. [Respondent-mother] has requested marital counseling during therapy sessions in Minnesota and North Carolina; however, the -7[respondents] have not participated in the same. All of these identified issues existed at the inception of the case. We conclude these findings are supported by the evidence which shows that D.F.M., Jr., and D.F.M., III, are both children with special needs; children had there been is a history adjudicated of prior neglected; neglect as the respondent-mother failed to consistently attend individual counseling despite her long history of mental health issues; respondent-father s employment history was clearly unstable and respondent-mother s disability income; check and financially, remained respondents respondent-mother s and independently it is without mother s parents. most parents evident financial stable assisted respondents assistance source of respondents could from not live respondent- The evidence and findings support the trial court s conclusion that there was a probability of repetition of neglect if the children were returned to respondents. The trial court terminate did not err in finding grounds existed to respondents parental rights on the basis of neglect. Respondents parental rights also on challenge the children in foster care. basis the that termination they willfully of their left the However, having determined that the trial court properly concluded grounds existed pursuant to N.C. -8Gen. Stat. § 7B-1111(a)(1), we need not address the arguments related to the additional ground. In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003). Once the trial court has determined that a ground for termination exists, the court moves on to the disposition stage, where it must determine interest of the child. We review the trial whether termination is in the best N.C. Gen. Stat. § 7B-1110(a) (2009). court s decision rights for abuse of discretion. to terminate parental In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). A ruling committed to a trial court s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Respondent-mother argues the trial court erred in determining termination of her parental rights was in the best interests of the children where her parents were willing and able to care placement. for the children and had been recommended for We note that [i]f a fit relative were to come forward and declare their desire to have custody of the child, the court could consider this during the dispositional phase as grounds for why it would not be in the child s best interests to -9terminate the respondent s parental rights. In re J.A.A. & S.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005). In this case, the trial court considered placement of the children with respondent-mother s maternal parents, grandparents but contrary found to [D.F.M., Jr.] and [D.F.M., III]. the placement best with the interests of The evidence tends to show that the maternal grandparents, at first, expressed indecision on whether they wanted the children placed with them. Furthermore, respondent-mother testified that she was physically abused and touched inappropriately by her father when she was younger. reasoned Accordingly, decision we and conclude did not the abuse trial its court made discretion a in terminating respondent-mother s parental rights. Respondent-father also challenges the trial court s determination that termination of his parental rights was in the children s best interest. He argues the trial court abused its discretion by considering respondent-mother s ability to parent in terminating his parental rights. Respondents reunification with their children as a married couple. sought There is no indication either parent sought reunification independent of the other. Moreover, respondent-father testified respondent- mother was the primary caretaker of D.F.M., Jr., prior to his -10removal, and if respondent-mother children. consider the children would be were the returned primary to respondents, caretaker of the We conclude it was not error for the trial court to respondent-mother s ability to parent. conclude the trial court did not abuse its discretion. Affirmed. Chief Judge MARTIN and Judge STEELMAN concur. Report per Rule 30(e). We further
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