In re: A.B. & J.B. , 245 N.C. App. 35 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-910
Filed: 19 January 2016
Mecklenburg County, No. 10-JA-548 and 549
IN THE MATTER OF:
A.B.
J.B.
Appeal by respondent from order entered 5 June 2015 by Judge Elizabeth
Trosch in District Court, Mecklenburg County. Heard in the Court of Appeals 17
December 2015.
Mecklenburg County Department of Social Services, Youth and Family
Services, by Senior Associate County Attorney Kathleen Arundell Jackson, for
petitioner-appellee.
Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant.
Michael N. Tousey, for guardian ad litem.
STROUD, Judge.
Respondent-mother appeals order terminating her parental rights to her
children, Jacob and Alexis.1 For the following reasons, we affirm.
I. Background
1 Pseudonyms are used to protect the identity of the minors involved.
IN RE: A.B. & J.B.
Opinion of the Court
On 3 February 2015, this Court issued the opinion, In re A.B., ___ N.C. App.
___, 768 S.E.2d 573 (2015) (“AB I”). We summarized the history of the case in our
prior opinion:
The Mecklenburg County Department of Social
Services, Youth and Family Services (“DSS”) initiated the
underlying juvenile case by filing a petition on 8 September
2010, alleging the juveniles were neglected and dependent.
DSS asserted that respondent had an extensive history of
taking Jacob to the emergency room for unnecessary
treatment and that she was beginning to show a similar
pattern with Alexis. DSS further stated that Alexis had
recently been hospitalized because she had consumed some
of Jacob’s seizure medicine, suggesting that respondent
had given the medicine to Alexis. Additionally, DSS
reported that respondent was overwhelmed and overly
stressed from parenting the juveniles, missed numerous
appointments to address Jacob’s behavioral issues, was
unemployed and struggled financially, and had difficulty
following doctors’ instructions when providing routine
treatments to the children at home. DSS took non-secure
custody of the juveniles that same day.
On or about 5 November 2010, DSS entered into a
mediated agreement with respondent, establishing a case
plan for reunification with the juveniles. Respondent’s
case plan required her to: (1) continue participating in an
anger management program and demonstrate the skills
learned; (2) complete parenting classes and demonstrate
the skills learned; (3) maintain legal and stable
employment providing sufficient income to meet the
juveniles’ basic needs; (4) maintain an appropriate, safe,
and stable home for herself and the juveniles; (5) maintain
weekly contact with her social worker; (6) cooperate with
the guardian ad litem; and (7) attend the juveniles’ medical
and therapy appointments when able to do so. DSS and
respondent also agreed to supervised visitation with the
juveniles three times per week and a tentative holiday
visitation plan.
-2-
IN RE: A.B. & J.B.
Opinion of the Court
After hearings on or about 7 January and 17
February 2011, the trial court entered an adjudication and
disposition order holding that Alexis and Jacob were
neglected juveniles. The court adopted concurrent goals of
reunification and guardianship and set forth a case plan
for respondent. The trial court adopted the mediated case
plan developed by the parties and specifically directed
respondent to undergo a complete psychological
evaluation, obtain a domestic violence evaluation, and
participate in counseling services or therapy.
DSS worked towards reunification of the juveniles
with respondent, but in review and permanency planning
orders entered 13 May and 31 August 2011, the trial court
found respondent needed to further address her mental
health and anger management problems. In a permanency
planning order entered 19 January 2012, the court found
that respondent had made some positive changes in that
she was managing her anger, was “emotionally balanced”
around the juveniles, and had realized that she needed
“batterer’s intervention treatment.” But the court found
that respondent still needed to complete her parenting
capacity evaluation, show she could manage her mental
health problems, and complete her domestic violence
program. The court further found that there were no likely
prospects for guardianship or permanent custody of the
juveniles and set the permanent plan for the juveniles as
reunification or adoption.
On 25 April 2012, the trial court entered a
permanency planning order that ceased further efforts
towards reunification of the juveniles with respondent,
concluding respondent had failed to alleviate the
conditions that caused the juveniles to be placed in the care
and custody of DSS. The court directed that a Child Family
Team (“CFT”) meeting be held within thirty days of the
order to develop recommendations for a permanent
placement for the juveniles, and that DSS refrain from
moving to terminate respondent’s parental rights until
after the court received the recommendations from the
CFT. The trial court entered an order on 27 June 2012,
directing DSS to proceed with an action terminating
-3-
IN RE: A.B. & J.B.
Opinion of the Court
respondent’s parental rights to the juveniles.
DSS filed petitions to terminate respondent’s
parental rights to the juveniles on 25 July 2012. DSS
alleged grounds existed to terminate respondent’s parental
rights based on neglect, abandonment, failure to make
reasonable progress to correct the conditions that led to the
juveniles’ removal from her care and custody, and willful
failure to pay a reasonable portion of the cost of care for the
juveniles while they were placed outside of her home. See
N.C. Gen. Stat. § 7B–1111(a)(1)–(3), (7) (2013). The trial
court heard the petitions on 25 March and 11 April 2013.
At the conclusion of the hearing, the court found one
ground to terminate respondent’s parental rights: failure
to make reasonable progress to correct the conditions that
led to the juveniles’ removal from her care and custody.
However, the court concluded that terminating
respondent’s parental rights was not in the best interests
of the juveniles and directed respondent’s counsel to
prepare a proposed order for the court and circulate the
order to all parties.
On 23 September 2013, before the trial court had
entered an order on the termination petitions, DSS filed a
“Motion for Relief from Order and Motion to Consider
Additional Evidence” pursuant to North Carolina Rule of
Civil Procedure 60. See id. § 1A–1, Rule 60 (2013). DSS
asked that the trial court reconsider its best interests
conclusion based on allegations that respondent had misled
the court by providing inaccurate information and
testimony at the termination hearing, and that she had
failed to comply with her case plan since the termination
hearing. The trial court allowed the motion and held an
additional hearing on 1 October and 4 November 2013 in
which it allowed DSS to present additional dispositional
evidence as to the best interests of the juveniles.
By order entered 27 January 2014, the trial court
terminated respondent’s parental rights to the juveniles.
The Court found that respondent had failed to make
reasonable progress to correct the conditions that led to the
juveniles’ removal from her care and custody, and
concluded that it was in the juveniles’ best interests to
-4-
IN RE: A.B. & J.B.
Opinion of the Court
terminate her parental rights. Respondent filed timely
notice of appeal.
AB I, ___ N.C. App. at ___, 768 S.E.2d at 574-75.
In AB I, this Court addressed the issues on appeal primarily stemming from
inconsistences in the order terminating respondent’s parental rights. See id. at ___,
768 S.E.2d at 576-81. Ultimately this Court determined that
[t]he contradictory nature of the trial court’s
findings of fact and conclusions of law prohibit this Court
from adequately determining if they support the court’s
conclusions of law that (1) respondent failed to make
reasonable progress toward correcting the conditions that
led to the removal of the juveniles from her care and
custody, and (2) terminating respondent’s parental rights
is in the juveniles’ best interests. Accordingly, we reverse
the termination order and remand to the trial court for
entry of a new order clarifying its findings of fact and
conclusions of law.
Id. at ___, 768 S.E.2d at 581-82.
On 5 June 2015, upon remand from this Court, the trial court entered an order
terminating respondent’s parental rights based upon North Carolina General Statute
§ 7B-1111(a)(2) for “willfully [leaving] the juvenile[s] in foster care or placement
outside of the home for more than 12 months without showing to the satisfaction of
the court that reasonable progress under the circumstances has been made in
correcting those conditions which led to the removal.” N.C. Gen. Stat. § 7B-1111(a)(2)
(2013). Respondent appeals.
II. Standard of Review
-5-
IN RE: A.B. & J.B.
Opinion of the Court
Termination of parental rights proceedings are
conducted in two stages: adjudication and disposition. In
the adjudication stage, the trial court must determine
whether there exists one or more grounds for termination
of parental rights under N.C. Gen. Stat. § 7B–1111(a). This
Court reviews a trial court’s conclusion that grounds exist
to terminate parental rights to determine whether clear,
cogent, and convincing evidence exists to support the
court’s findings of fact, and whether the findings of fact
support the court’s conclusions of law. If the trial court’s
findings of fact are supported by ample, competent
evidence, they are binding on appeal, even though there
may be evidence to the contrary. However, the trial court’s
conclusions of law are fully reviewable de novo by the
appellate court.
If the trial court determines that at least one ground
for termination exists, it then proceeds to the disposition
stage where it must determine whether terminating the
rights of the parent is in the best interest of the child, in
accordance with N.C. Gen. Stat. § 7B–1110(a). The trial
court’s determination of the child’s best interests is
reviewed only for an abuse of discretion. Abuse of
discretion results where the court’s ruling is manifestly
unsupported by reason or is so arbitrary that it could not
have been the result of a reasoned decision.
AB I, ___ at ___, 768 S.E.2d at 575-76 (citations, quotation marks, and brackets
omitted).
III. Standard of Proof
Respondent first contends that “the trial court stated a standard of proof for
only one finding[,] (original in all caps), but “[a]ll [a]djudicatory [f]indings [m]ust [b]e
[b]y [c]lear [a]nd [c]onvincing [e]vidence.” (Emphasis added.) Respondent argues that
the trial court’s failure to affirmatively state in the order that all of the findings of
-6-
IN RE: A.B. & J.B.
Opinion of the Court
fact, not just finding of fact 13, were made pursuant to the proper standard of proof
was erroneous. We agree that all findings of fact must be supported by clear, cogent,
and convincing evidence. See N.C. Gen. Stat. § 7B-1109 (2013) (“[A]ll findings of fact
shall be based on clear, cogent, and convincing evidence.”)
Just as respondent noted, finding of fact 13 recites the appropriate standard.
Finding of fact 13 provides “[t]hat the Department of Social Services has substantially
proven the facts that were alleged in paragraphs a-k of the termination of parental
rights petition by clear, cogent and convincing evidence.” Furthermore, the order
does not mention any different standard of proof than as stated in finding of fact 13.
Lastly, the trial court stated in its rendition before entry of the first order, “Well,
having announced findings previously of facts established by clear, cogent, and
convincing evidence that there are grounds to terminate the parental rights of the
Respondent-Mother for failing to make reasonable progress under the circumstances,
to ameliorate the conditions that brought the children into custody . . . .” No new
evidence was taken upon remand, and thus there is no reason to conclude that the
trial court used the wrong standard of proof in the current order. This Court has
previously determined that
[a]lthough the trial court should have stated in its written
termination order that it utilized the standard of proof
specified in N.C. Gen. Stat. § 7B–1109(f), the fact that the
trial court orally indicated that it employed the appropriate
standard and the fact that the language actually used by
the trial court is reasonably close to the wording that the
-7-
IN RE: A.B. & J.B.
Opinion of the Court
trial court should have employed satisfies us that the trial
court did, in fact, make its factual findings on the basis of
the correct legal standard.
In re M.D., 200 N.C. App. 35, 39, 682 S.E.2d 780, 783 (2009) (emphasis added).
Therefore, while we agree it would have been preferable for the trial court to
plainly state its standard of proof for all of the findings of fact, based upon the
language in finding of fact 13, the lack of evidence of an erroneous standard, and the
oral rendition stating the appropriate standard, we conclude that the trial court used
the correct standard of proof. This argument is overruled.
IV. Finding of Fact 13
Respondent next makes four arguments regarding finding of fact 13. Again,
finding of fact 13 states “[t]hat the Department of Social Services has substantially
proven the facts that were alleged in paragraphs a-k of the termination of parental
rights petition by clear, cogent and convincing evidence.” Respondent first contends
that paragraphs a-k2 in the petition to terminate are allegations regarding the ground
of neglect and because the trial court failed to find neglect as a basis for termination,
it was inconsistent to find the facts supporting neglect by reference to the petition.
Indeed, just as respondent argues, subparagraphs a-k of paragraph 6, allege
“[t]hat the respondent parents have neglected the said juvenile as defined in G.S.
Section 7B-101(15) in that the respondent parents have failed to provide proper care,
2 It appears that paragraphs a-k are actually subparagraphs of paragraph 6 of the petition,
since only one paragraph of the petition has subparagraphs a-k.
-8-
IN RE: A.B. & J.B.
Opinion of the Court
supervision, and discipline for said juvenile and have abandoned said juvenile. . . .”
Yet when we consider the substance of subparagraphs a-k, they are actually
providing a general background of the case, which would be applicable no matter the
ground for termination. Subparagraphs a, b, e, and k address the procedural history
including the reasons for the initial petition and some prior determinations made by
the trial court. Subparagraphs c and d are regarding one of the children’s putative
fathers. Subparagraph f summarizes respondent’s case plan. Subparagraphs g-h
note respondent’s inconsistency in completing her case plan and complying with a
prior court order. Subparagraph i addresses respondent’s compliance with her case
plan such as completing a parenting class and regularly visiting the children, and
subparagraph j is regarding respondent’s lack of employment. Therefore, the trial
court could properly rely upon these allegations for determinations other than finding
the ground of neglect, since they also provide a relevant background for considering
the ground for termination the trial court did find, failure to make reasonable
progress. This argument is overruled.
Heavily relying upon In re O.W., 164 N.C. App. 699, 596 S.E.2d 851 (2004),
respondent also contends that the trial court should not have wholesale adopted
subparagraphs a-k but instead should have made its own independent determination.
While petitioner is correct that there is no specific
statutory criteria which must be stated in the findings of
fact or conclusions of law, the trial court’s findings must
consist of more than a recitation of the allegations. In all
-9-
IN RE: A.B. & J.B.
Opinion of the Court
actions tried upon the facts without a jury the court shall
find the facts specifically and state separately its
conclusions of law thereon.
Id. at 702, 596 S.E.2d at 853 (citations, quotation marks, and ellipses omitted)).
But this Court has recently noted that it is not necessarily error
for a trial court’s findings of fact to mirror the wording of a
party’s pleading. It is a longstanding tradition in this State
for trial judges to rely upon counsel to assist in order
preparation. It is no surprise that parties preparing
proposed orders might borrow wording from their earlier
submissions. We will not impose on our colleagues in the
trial division an obligation to comb through those proposed
orders to eliminate unoriginal prose.
In re J.W., ___ N.C. App. ___, ___, 772 S.E.2d 249, 251, disc. review denied, ___ N.C.
___, 776 S.E.2d 202 (2015) (citation and quotation marks omitted).
Upon our examination of the entire record and transcripts, we have been able
to determine that the trial court did go through the evidence thoughtfully and did not
just accept the petition’s allegations. As we noted when this same case was before
us previously,
[w]e also understand that the initial drafts of most court
orders in cases in which the parties are represented by
counsel are drafted by counsel for a party. Unfortunately,
in North Carolina, the majority of District Court judges
have little or no support staff to assist with order
preparation, so the judges have no choice but to rely upon
counsel to assist in order preparation.
A.B. I, ___ N.C. App. at ___, 768 S.E.2d at 579. But the trial court is still ultimately
responsible for the contents of the order:
- 10 -
IN RE: A.B. & J.B.
Opinion of the Court
We again caution the trial court that its order, upon
which the trial judge’s signature appears and which we
review, must reflect an adjudication, not mere one-sided
recitations of allegations presented at the hearing. In re
J.W., ___ N.C. App. ___, ___, 772 S.E.2d 249, 251 (2015)
(“[W]e will examine whether the record of the proceedings
demonstrates that the trial court, through the processes of
legal reasoning, based on the evidentiary facts before it,
found the ultimate facts necessary to dispose of the case.”).
In re M.K. (I), ___ N.C. App. ___, ___, 773 S.E.2d 535, 538-39 (2015).
Although finding of fact 13 certainly includes some “unoriginal prose[,]” id., the
trial court made 70 findings of fact. The trial court referred to the allegations from
DSS’s petitions by reference to subparagraphs a-k in one of seventy findings, so it is
clear that the trial court made an independent determination of the facts and did
“more” than merely “recit[e] the allegations.” In re O.W., 164 N.C. App. at 702, 596
S.E.2d at 853. This argument is overruled.
Respondent then argues that various small portions of subparagraphs a-k were
not supported by the evidence. But not even respondent contends that these portions
of subparagraphs a-k were essential to the determination made by the trial court to
terminate. Instead, respondent argues the allegations of paragraphs “a-k of the
termination petition were not supported by clear and convincing evidence. They
cannot be used to support termination grounds.” Rather than engage in a lengthy
discussion of each and every contested background fact in subparagraphs a-k, which
are adopted by Finding of Fact 13, we will agree, arguendo, with respondent that
- 11 -
IN RE: A.B. & J.B.
Opinion of the Court
finding of fact 13 alone would not be sufficient to support a ground for termination.
But there are still 69 unchallenged findings of fact which could support the ground
for termination.
Lastly, respondent contends that due to the numerous issues with finding of
fact 13 and because it cannot be used to support the ground for termination, “the
ground must be reversed.” We disagree, since approximately 98.5% of the trial court’s
findings of fact are unchallenged and therefore binding on appeal. See generally In
re J.K.C., 218 N.C. App. 22, 26, 721 S.E.2d 264, 268 (2012) (“The trial court’s
remaining unchallenged findings of fact are presumed to be supported by competent
evidence and binding on appeal.”) Thus even if we completely disregard finding of
fact 13 as respondent requests, the other unchallenged findings of fact may support
the trial court’s determination. This argument is overruled.
V. Changes in Order on Appeal
Respondent argues that the trial court’s findings of fact and conclusions of law
in the order on appeal must be consistent with any prior orders and oral renditions.
Respondent raises essentially two arguments: (1) the trial court’s order on remand
from this Court contradicts the oral rendition at the initial hearing and the first order
which ultimately resulted from that rendition, and (2) “[t]he [t]rial [c]ourt [e]xceeded
[t]he [s]cope [o]f [t]he [r]emand [o]rder.” We address both arguments in turn.
Respondent argues that the trial court’s second order, currently on appeal,
- 12 -
IN RE: A.B. & J.B.
Opinion of the Court
contradicts both the oral rendition after the initial hearing and the first order which
was entered after that rendition. But respondent’s argument fails to acknowledge
that the second order was the result of this Court’s remand and specific direction to
the trial court to make its order internally consistent:
If the only problem in the order was one poorly
worded conclusion of law, we might be able to determine
that this conclusion of law contains a clerical error that
could be remedied by a direction to correct it on remand.
But the internal inconsistencies of the order go far beyond
one sentence. As noted above, there are contradictory
findings as to respondent’s mental health care and her
domestic violence issues[, and] contradiction[s] to its
ultimate conclusions regarding grounds for termination
and the juveniles’ best interests . . . .
See AB I, ___ N.C. App. ___, 768 S.E.2d at 579. The only possible way for the trial
court to make a consistent order would naturally require some findings
“contradicting” the oral rendition and the first order which resulted in the remand in
the first place. The order had to clear up the internal contradictions from the prior
order, and this would logically require leaving out some of the findings which the trial
court presumably did not intend to include in the prior order, but, thanks to errors in
drafting as noted in our first opinion, ended up in the prior order. See id. As this
argument ignores the procedural posture of this case, we find it to be without merit.
Respondent next contends that “this Court instructed the trial court to enter
‘a new order clarifying its findings of fact and conclusions of law[,]’” and the trial court
went far beyond clarification. Respondent specifically directs us to two findings of
- 13 -
IN RE: A.B. & J.B.
Opinion of the Court
fact that were so changed upon appeal they went far beyond “clarification,” but
respondent’s argument does not address the sufficiency of the evidence to support the
findings but only the fact that the findings in the first order were different than those
in the second. When the word “clarifying” is read within the entire context of AB I,
it is evident that this Court remanded this case for the trial court to make whatever
changes necessary to have an internally consistent order. The trial court needed to
make the findings which the trial court, in its role as fact-finder and judge of
credibility of the evidence, determined were supported by the evidence. See AB I, ___
N.C. App. ___, 768 S.E.2d 573, 575-82. The first order contained findings of fact that
did not logically support the conclusions of law. See id. at ___, 768 S.E.2d at 579.
Furthermore, the conclusions of law were inconsistent with one another. See id. This
Court remanded the order for the trial court to draft a consistent order, see id., ___
N.C. App. ___, ___, 768 S.E.2d at 579-82, which would necessarily require significant
changes from the first inconsistent order. Respondent notes that “[c]larify means ‘to
make (something) easier to understand’” and that is exactly what this Court
requested, an order that was internally consistent and thus reviewable. We would
have hoped, given this instruction in our prior opinion, that the new order now on
appeal would have been more carefully drafted, but respondent has not argued that
the changed facts are not supported by evidence, and thus this argument is overruled.
VI. Contradictory Findings of Fact
- 14 -
IN RE: A.B. & J.B.
Opinion of the Court
Respondent next contends that “the trial court retained most of its
contradictory findings from the prior order.” (Original in all caps.) Again, we turn to
AB I:
It is not unusual for an order terminating parental
rights to include both favorable and unfavorable findings
of fact regarding a parent’s efforts to be reunited with a
child, and the trial court then weighs all the findings of fact
and makes a conclusion of law based upon the findings to
which it gives the most weight and importance.
Id. at ___, 768 S.E.2d at 578. Thus, “contradictory” findings of fact are “not unusual”
in a termination order because in many cases parents take many positive steps along
with many negative ones. Almost always, the parent will present evidence of her
progress and improvement, and in many cases, she has actually made some progress.
Likewise, the petitioner will present evidence regarding the parent’s failures and
omissions. The trial court’s role is to determine the credibility of all of this evidence
and to weigh all of it and then to make its findings of fact accordingly. Although the
evidence will be inconsistent, the trial court’s ultimate order must be consistent in its
findings of fact such that they will support its conclusions of law to come to an
ultimate determination. See id.
While respondent directs our attention to numerous “inconsistent” findings of
fact and argues regarding various changes between the first order and the one
currently on appeal, respondent does not actually challenge the sufficiency of the
evidence to support the findings of fact nor does respondent make an argument that
- 15 -
IN RE: A.B. & J.B.
Opinion of the Court
the findings of fact as currently drafted fail to support the determination that
respondent failed to make reasonable progress. North Carolina General Statute §
7B-1111(a)(2) provides that a court may terminate one’s parental rights when “[t]he
parent has willfully left the juvenile in foster care or placement outside the home for
more than 12 months without showing to the satisfaction of the court that reasonable
progress under the circumstances has been made in correcting those conditions which
led to the removal of the juvenile. N.C. Gen. Stat. § 7B-1111(a)(2) (2013).
“[W]illfulness is not precluded just because respondent has made some efforts to
regain custody of the child.” In re D.H.H., 208 N.C. App. 549, 553, 703 S.E.2d 803,
806 (2010) (citation and quotation marks omitted).
Although the trial court’s findings did note respondent’s desire to keep her
children and her attempts to correct conditions which led to her children’s removal,
the trial court also found:
10. The Court identified the primary issues Ms. [Smith]
was facing at the time of the children’s removal to be
issues of Mental Health. The goals for the mother
have been developing the capacity, skills and
cultivating the support necessary to manage
aggression and anger and conflict in a way that did
not result in aggressive outbursts that impacted the
emotional and physical well-being of the children.
11. That over the course of time the issues of domestic
violence with the mother as a primary aggressor
became apparent. After the birth of . . . [Kyle] . . .
these issues were required by the Court to be
addressed during the time that the children had
- 16 -
IN RE: A.B. & J.B.
Opinion of the Court
been in custody prior to filing the termination
petitions.
....
15. That . . . [although respondent] has cooperated and
began outpatient psycho-therapy with Linda
Avery[,] . . . Ms. [Smith] was not completely
forthcoming about the circumstances that brought
the children into custody or the issues of violence in
her relationships . . . and that Ms. Avery concluded
that Ms. [Smith] had not made discernible progress
in achieving goals that they had set for treatment.
16. . . . . despite [her positive desire], the mother
voluntarily withdrew herself from services with Ms.
Linda Avery contrary to clinical recommendations.
Failure to provide complete and honest information
about the injuries sustained by [Alexis] to the
clinician in addition to failure to provide honest
information about the persistence of violence in her
relationships, resulted in a treatment plan that was
inadequate to assist Ms. [Smith] [in] alleviat[ing]
the conditions of mental illness and aggressive
outbursts, ultimately undermining the efficacy and
progress of treatment. Ms. [Smith]’s failure to
participate consistently in sessions with Ms. Avery
further impeded progress in treatment goals.
....
24. Initially, Ms. [Smith] was not forthcoming about
issues of Domestic Violence. . . . After Ms. [Smith]
had been properly assessed and screened for the
issues of domestic violence, she was found to be a
predominant aggressor who was not appropriate for
victim services, but could benefit from batter[er]’s
intervention treatment program and was referred to
NOVA, a state certified batter[er]’s intervention
program[.]
- 17 -
IN RE: A.B. & J.B.
Opinion of the Court
25. That the mother began NOVA treatment on three (3)
separate occasions prior to November 2012 and that
she was unsuccessfully discharged and terminated
in January 2012, May 2012 and September 2012 due
to excessive absences.
26. That the mother has been actively engaged in NOVA
services since November 2012 . . . .
27. That Tim Bradley of NOVA is not providing direct
counseling to Ms. [Smith] . . ., but has had
interactions with . . . [her] in his capacity as case
manager. In Mr. Bradley’s opinion Ms. [Smith] has
not developed enough relationship skills to be in an
intimate partner relationship with Mr. [Jones] . . . .
....
35. Ms. [Smith] was the person responsible for the
neglect that the Court found at adjudication in the
underlying proceedings and has willfully left [Jacob]
and [Alexis] . . . in foster care for twelve (12) months
without showing to the satisfaction of the Court that
reasonable progress has been made in alleviating
the conditions that brought her children into the
custody of the Department of Social Services. These
children have been in custody and in various
placements for over two years solely because the
mother, throughout that time, engaged in a pattern
of self-defeating cycles of dishonesty with therapists,
social services professionals, the court and herself.
Reunification could not be achieved over that two
year period because Ms. [Smith] continued to engage
in a pattern of violence with her paramours, family
members and caretakers to her children. These
children were willfully left in foster care for nearly
two years as Ms. [Smith] attempted to conceal
unfavorable information from the Court and avoid
taking any productive, consistent, and relevant
action to alleviate the conditions that brought the
- 18 -
IN RE: A.B. & J.B.
Opinion of the Court
children into custody.
....
38. Through the majority of time that these children
have been in custody, . . . [respondent] has engaged
in a pattern of short progress followed by long
periods of regression in mental health and anger
management. . . .
39. That . . . [respondent] is not currently able to provide
for the basic shelter and the children are in need of
permanency[.]
....
41. That when . . . Ms. [Smith] first gave testimony at
the termination proceedings on 25 March and 11
April 2013, she denied that she had an intimate
partner and specifically denied being in a
relationship with [Mr. Jones] in early 2013. Ms.
[Smith] testified at that time that she had not been
in an intimate partner relationship with him in the
past four or five months.
42. The respondent-mother has impeached herself,
stating not only that they had been in a voluntary
intimate relationship, but that they were
cohabitating from February 2013 until sometime
early in July 2013.
43. That since 11 April 2013 there were four 911 calls
for service involving domestic disputes between Mr.
[Jones] and Ms. [Smith].
44. That Ms. [Smith] was the primary aggressor in each
of those events.
....
- 19 -
IN RE: A.B. & J.B.
Opinion of the Court
46. That police responded to Mr. [Jones’] residence, but
Ms. [Smith] substantially minimized the nature of
the conflict and denied telling law enforcement that
she had lived at that residence.
47. That Ms. [Smith] denied to Ms. Mitchell that she
was living at Mr. [Jones’] residence at any point
immediately prior to the police response on 25 July
2013.
48. That only when confronted with collateral
information from Charlotte-Mecklenburg Police
reports did Ms. [Smith] acknowledge the significant
aspects of those conflicts including that she was
throwing the personal property of Mr. [Jones] from
the balcony of Mr. [Jones’] residence . . . .
49. That during Ms. [Smith]’s third enrollment in
batterer intervention classes with NOVA over the
period of January through July 2013, the
respondent-mother did not disclose the nature of her
relationship with Mr. [Jones] or that they were
cohabitating.
50. That the respondent-mother did not disclose all of
the altercations that occurred between the two of
them, but that during her recent participation in
NOVA, Mr. Tim Bradley observed Ms. [Smith] to be
defensive and to demonstrate no insight in the
conduct that occurred on 7 April 2013, 25 July 2013,
1 August 2013, and 22 August 2013.
51. That Mr. Bradley received documentation and
explanation about one of the respondent-mother’s
absences as the result of an illness requiring medical
attention. Ms. [Smith] failed [to] justify her other
absences and for the third time she was terminated
from NOVA for excessive absences.
52. That Ms. [Smith] had not benefited from the
- 20 -
IN RE: A.B. & J.B.
Opinion of the Court
information provided in NOVA in the cumulative 21
sessions attended in the three opportunities she had
to complete batterer intervention treatment.
53. That Ms. [Smith] continues to require therapy to
address causes of her aggressive conduct.
54. That even today Ms. [Smith] minimizes the
significance of her outbursts on those four known
occasions for which law enforcement was called to
respond to domestic disturbances in 2013 between
Ms. [Smith] and Mr. [Jones].
55. That Ms. [Smith] was provided with referrals to at
least two other programs to address her need for
batterer intervention and that despite her ability
since receiving those referrals and reports prior to
today, she has failed to enroll in such a program and
take reasonable steps to address the issues of
domestic violence.
56. That the respondent-mother had not been entirely
forthcoming with Mr. McQuiston regarding events
that had caused her children to come into custody
during their sessions. She had not informed him of
her participation in batterer intervention treatment
and collateral information subsequently provided to
him in the form of Dr. Bridgewater’s evaluation. The
failure of the respondent-mother to provide
information impacted Mr. McQuiston’s ability to
develop appropriate treatment goals to assist Ms.
[Smith] in addressing what he described as self-
defeating cycles of the destructive use of anger.
57. The Court is not convinced that the respondent-
mother is providing him with the information that
he would need to provide her with meaningful
assistance to address the conditions of domestic
violence and increasing her capacity to manage her
anger in a way that would be necessary to [e]nsure
- 21 -
IN RE: A.B. & J.B.
Opinion of the Court
or build her capacity to safely and effectively parent
her children.
58. That despite the respondent-mother having
reported to her clinicians and to the Court she
received substantial benefit in stabilizing her mood
while complying with prescription psychotropic
medications, she has for at least the second time
ceased compliance with her prescribed psychotropic
medications without the consultation or input from
her psychiatrist, therapist, or psychologists.
59. That since 1 April 2013, the respondent-mother has
had significant conflicts with the caretakers of her
children around the scheduling and execution of her
visitation rights.
60. That those are conflicts created by the respondent-
mother’s own unrealistic demands on those
caretakers or last minute and off-the-schedule
visitation.
61. The respondent mother lacked the ability, tools, and
interpersonal relationship skills to negotiate those
conflicts and resolves the conflicts without the
assistance and intervention of DSS.
....
63. That Ms. [Smith] continues to engage in self-
defeating cycles of loss of emotional control and the
destructive use of anger in her interpersonal
relationships.
64. Ms. [Smith]’s conduct since April 2013 combined
with her voluntary cessation of her mental health
treatment and medication intervention indicates
that self-defeating pattern of emotional volatility
and use of anger is unlikely to be ameliorated in the
foreseeable future.
- 22 -
IN RE: A.B. & J.B.
Opinion of the Court
65. That Ms. [Smith] has also created significant conflict
in her relationship with each of the care providers
around visitation and parenting strategies.
....
67. The [caretakers] are committed to providing a
permanent, safe and stable home for [Alexis] and
[Jacob]. The [caretakers] have a strong bond to the
juveniles and juveniles have a strong bond to . . .
[them].
....
70. It is in [Jacob] and [Alexis’] best interests that the
parental rights of the respondent-mother . . . be
terminated.
The trial court then concluded:
2. That there are grounds to terminate the parental
rights of the parents in that the parents have
willfully left [Jacob] and [Alexis] . . . in foster care
for more than twelve (12) months without showing
to the satisfaction [of] the Court that reasonable
progress has been made in correcting the conditions
which le[]d the children to be removed . . . .
3. Adoption is the permanent arrangement that is most
consistent with [Jacob] and [Alexis]’s needs for a
permanent home within a reasonable period of time.
4. It is in [Jacob] and [Alexis’] best interests that the
parental rights of the respondent mother . . . be
terminated[.]
Thus, while the trial court acknowledged and even made numerous findings
regarding respondent’s progress, the progress was ultimately not enough. It is also
- 23 -
IN RE: A.B. & J.B.
Opinion of the Court
clear from the findings of fact that the trial court did not find respondent’s evidence
of her progress in some areas to be credible. The findings support the conclusions,
which in turn support the ultimate determination to terminate. This argument is
overruled.
VII. New Evidence
Lastly, respondent contends “the trial court abused its discretion when it did
not receive new evidence as to best interest.” (Original in all caps.) Respondent
argues that “[i]t was not possible for the trial court to formulate a reasoned best
interest finding regarding children this young on information which was three years
old[,]” particularly in regards to the children’s bond with respondent. We agree that
with the passage of time, respondent’s and the children’s circumstances may change,
perhaps in ways that would be relevant to the decision to terminate parental rights.
But the trial court was under no obligation to consider new evidence on remand, since
our prior opinion left the decision of whether to receive additional evidence entirely
within the discretion of the trial court. See AB I, ___ N.C. App. at ___, 768 S.E.2d at
582 (“The trial court may receive additional evidence on remand, within its sound
discretion.”). The trial court is in a far better position than this Court to determine
whether additional evidence may be useful in a case of this type. In addition, the
record does not indicate that respondent made any motions for the trial court to
receive additional evidence nor does respondent argue on appeal that any such
- 24 -
IN RE: A.B. & J.B.
Opinion of the Court
request was denied. Respondent has not demonstrated how the trial court abused
its discretion. This argument is overruled.
VIII. Summary
For the foregoing reasons, we affirm.
AFFIRMED.
Judges DIETZ and TYSON concur.
- 25 -