In re X.P.W. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 39A20
Filed 20 November 2020
IN THE MATTER OF: X.P.W., B.W.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered on 11
October 2019 by Judge Elizabeth T. Trosch in District Court, Mecklenburg County.
This matter was calendared in the Supreme Court on 7 October 2020 but determined
on the record and briefs without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
No brief for petitioner-appellee Mecklenburg County Department of Social
Services, Youth and Family Services Division.
Kelsey L. Kingsbery and Michelle C. Prendergast, for appellee Guardian ad
Litem.
Jeffrey L. Miller for respondent-appellant father.
HUDSON, Justice.
Respondent-father appeals from the trial court’s 11 October 2019 order
terminating his parental rights to his minor children X.P.W. and B.W. (“Zeb” and
“Ann”).1 Counsel for respondent-father has filed a no-merit brief pursuant to Rule
3.1(e) of the North Carolina Rules of Appellate Procedure. We conclude the issues
1 Pseudonyms are used to protect the identity of the juveniles and for ease of reading.
IN RE X.P.W. AND B.W.
Opinion of the Court
identified by counsel in respondent-father’s brief are meritless and therefore affirm
the trial court’s order.
On 14 March 2018, the Mecklenburg County Department of Social Services,
Youth and Family Services Division (YFS) became involved with respondent-father’s
family when Zeb tested positive for opiates at birth. After additional testing was
performed on Zeb, he also tested positive for Fentanyl, codeine, and morphine. The
mother subsequently admitted to YFS that she used non-prescribed oxycodone and
Xanax, and had also used Percocet shortly before Zeb’s birth. YFS requested that both
respondent-father and the mother obtain a substance abuse assessment.
On 24 March 2018, the mother was found unresponsive by respondent-father
on the floor of their hotel room after she suffered an overdose. Emergency responders
revived the mother using Narcan, and she was taken to the hospital. Ann and several
older siblings not party to this appeal were present in the hotel room when the mother
overdosed. The mother told YFS that she took too much oxycodone, although hospital
records reflect that she informed hospital staff that she had used heroin. On 26 March
2018, Ann was temporarily placed with the father of her older siblings.
On 4 April 2018, YFS filed a petition alleging that Zeb and Ann were neglected
and dependent juveniles. YFS recounted how it became involved with the family and
claimed the mother had a history of substance abuse. YFS stated that Ann had
previously tested positive for opiates at her birth, that the mother had overdosed in
August 2017 and had to be revived with six doses of Narcan, and that the mother also
-2-
IN RE X.P.W. AND B.W.
Opinion of the Court
tested positive for opiates on 18 January 2018 while on probation. YFS also claimed
that respondent-father was on probation and had a history of drug-related offenses.
YFS noted that both respondent-father and the mother were supposed to obtain
substance abuse assessments following Ann’s birth. Respondent-father went to
obtain an assessment on 3 April 2018, but YFS had not received the results as of the
filing of the petition. The mother had received an assessment on 29 March 2018 but
did not attend recommended detox. DSS asserted, however, that neither respondent-
father or the mother had presented relatives or other individuals who could provide
care for the juveniles. Accordingly, DSS obtained non-secure custody and placed the
juveniles in foster care.
Following a hearing held on 23 May 2018, and in accordance with a mediated
case plan agreement, the trial court entered an order on 29 June 2018 in which it
adjudicated Zeb and Ann neglected juveniles. The trial court ordered respondent-
father and the mother to comply with a case plan that included substance abuse
treatment, random drugs screens, and maintaining sobriety. The trial court further
ordered that the primary permanent plan for the juveniles be reunification with a
secondary plan of adoption.
The trial court held review hearings on 3 August 2018 and 24 October 2018. In
orders entered from those hearings on 21 August 2018 and 19 November 2018,
respectively, the trial court found that respondent-father and the mother had
“engaged in a pattern of excuses” and had not complied with their case plans. The
-3-
IN RE X.P.W. AND B.W.
Opinion of the Court
trial court noted that both respondent-father and the mother had positive drug
screens, failed to engage in recommended substance abuse treatment, and were
inconsistent with visitation. Nevertheless, the trial court ordered that reunification
remain part of the permanent plan for the juveniles.
Following a permanency planning review hearing held on 14 January 2019,
the trial court entered an order on 4 February 2019 in which it found that respondent-
father and the mother were not actively participating in their case plans and were
not cooperating with YFS or the guardian ad litem. The trial court also noted that
neither respondent-father nor the mother had seen the juveniles since 28 September
2018 and that when they had attended visitation they appeared to be under the
influence of substances. Both parents tested positive for drugs on 21 August 2018.
Additionally, the trial court found that YFS last had contact with the mother on 14
September 2018, and respondent-father last had contact with YFS on 24 October
2018. Accordingly, the trial court suspended reunification efforts, changed the
primary permanent plan for the juveniles to adoption, and changed the secondary
permanent plan to guardianship. The trial court also concluded that termination of
respondent-father’s and the mother’s parental rights were in the juveniles’ best
interests.
On 1 April 2019, YFS filed a petition to terminate respondent-father’s and the
mother’s parental rights on the grounds of neglect, dependency, and abandonment.
See N.C.G.S. § 7B-1111(a)(1), (6)–(7) (2019). On 6 June 2019, respondent-father filed
-4-
IN RE X.P.W. AND B.W.
Opinion of the Court
an answer denying the material allegations in the petition. The mother passed away
due to Fentanyl and cocaine toxicity on 14 June 2019. Following hearings held in
August and September 2019, the trial court entered an order on 11 October 2019 in
which it determined grounds existed to terminate respondent-father’s parental rights
due to neglect and abandonment. See N.C.G.S. § 7B-1111(a)(1), (7). The trial court
further concluded it was in Zeb’s and Ann’s best interests that respondent-father’s
parental rights be terminated. Accordingly, the trial court terminated respondent-
father’s parental rights. Respondent-father appeals.
Counsel for respondent-father has filed a no-merit brief on his client’s behalf
under Rule 3.1(e) of the North Carolina Rules of Appellate Procedure. Counsel has
advised respondent-father of his right to file pro se written arguments on his own
behalf and provided him with the documents necessary to do so. Respondent-father
has not submitted written arguments to this Court.
We independently review issues identified by counsel in a no-merit brief filed
pursuant to Rule 3.1(e). In re L.E.M., 372 N.C. 396, 402 (2019). Respondent-father’s
counsel identified three issues that could arguably support an appeal, but he also
explained why these issues lacked merit. Based upon our careful review of the issues
identified in the no-merit brief and in light of our consideration of the entire record
and applicable law, we are satisfied that the trial court’s 11 October 2019 order is
supported by clear, cogent, and convincing evidence and based on proper legal
-5-
IN RE X.P.W. AND B.W.
Opinion of the Court
grounds. Accordingly, we affirm the trial court’s order terminating respondent-
father’s parental rights.
AFFIRMED.
-6-