In re L.F.G.K. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-115
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF:
L.F.G.K. and A.L.K. Cleveland County
Nos. 09 JT 128; 10 JT 125
Appeal by respondent parents from order entered 28 October
2013 by Judge Meredith A. Shuford in Cleveland County District
Court. Heard in the Court of Appeals 30 June 2014.
Charles E. Wilson, Jr. for petitioner-appellee Cleveland
County Department of Social Services.
Leslie Rawls for respondent-appellant mother.
Mercedes O. Chut for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by Deborah L. Edney, for
guardian ad litem.
ELMORE, Judge.
Respondent parents appeal from an order terminating their
parental rights to their minor children, L.F.G.K. (“Linda”1) and
A.L.K. (“Anna”). Respondent father also appeals from a prior
1
Pseudonyms are used to protect the identity of the juveniles
and for ease of reading.
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order ceasing reunification efforts. We affirm the order
terminating respondent’s parental rights.
The Cleveland County Department of Social Services (“DSS”)
became involved with respondent mother in January 2009, when it
filed juvenile petitions alleging her minor children J.K. and
B.K.2 were abused and neglected juveniles. Linda was born to
respondents in June 2009, and the day after her birth DSS took
non-secure custody of her and filed a petition alleging she was
a neglected juvenile. On 23 November 2009, respondents entered
into a consent order of adjudication in which Linda and her
older siblings were adjudicated neglected. The trial court
entered a combined disposition, review, and permanency planning
order on 4 January 2010, in which it continued custody of Linda
and her siblings with DSS and set the permanent plan for the
children as reunification with their parents.
In August 2010, respondent mother gave birth to Anna.
Shortly after her birth, DSS took non-secure custody of Anna and
filed a petition alleging she was a neglected juvenile. The
trial court entered an adjudication and disposition order on 22
February 2011, adjudicating Anna a neglected juvenile and
continuing custody of her with DSS. The court also relieved DSS
2
Respondent father is not the father of J.K. and B.K.
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from its obligation to make reasonable efforts to return Anna to
respondents’ home. That same day, the trial court entered an
order regarding Linda and her older siblings in which it awarded
the custody of Linda’s siblings to their father, released DSS
from its obligation to make reasonable efforts to return Linda
to respondents’ home, and set the permanent plan for Linda as
adoption. On 24 February 2011, the court entered an order
setting the permanent plan for Anna as adoption. Respondents
appealed from the trial court’s orders entered 22 and 24
February 2011, and this Court affirmed all three orders. In re
J.K., 216 N.C. App. 416, 716 S.E.2d 875 (2011).
On 5 March 2012, by the agreement of all parties, the trial
court entered a permanency planning and review order in which it
sanctioned a permanent plan for Linda and Anna of reunification
with respondents, with a concurrent plan of adoption. The court
ordered DSS to resume making reasonable efforts to return the
children to respondents’ home, granted respondents supervised
visitation with the children, and ordered respondents to
cooperate with DSS’s reunification efforts. DSS worked with
respondents toward reunification with their children. However,
by order entered 22 January 2013, the trial court ordered
reunification efforts to cease, terminated respondents’
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visitation with the children, and set the permanent plan for the
juveniles as adoption. Respondents filed timely notices to
preserve their right to appeal from the 22 January 2013 order
ceasing reunification efforts.
DSS filed petitions to terminate respondents’ parental
rights to Linda and Anna on 11 February 2013. DSS alleged
grounds of neglect, failure to make reasonable progress toward
correcting the conditions that led to the removal of the
children, and failure to pay a reasonable portion of the cost of
care for the children. N.C. Gen. Stat. § 7B-1111(a)(1)-(3)
(2013). On 28 October 2013, after a multi-day hearing, the
trial court entered an order terminating respondents’ parental
rights to Linda and Anna, based upon the grounds of neglect and
failure to make reasonable progress toward correcting the
conditions that led to the removal of the children. Respondents
filed timely notices of appeal.
II. Analysis
We first address respondents’ common argument that the
trial court lacked jurisdiction to hear the petitions to
terminate their parental rights because DSS failed to include in
the petitions a statement of facts sufficient to warrant a
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determination that one or more of the grounds for terminating
parental rights existed.
A petition to terminate parental rights must include
“[f]acts that are sufficient to warrant a determination that one
or more of the grounds for terminating parental rights exist.”
N.C. Gen. Stat. § 7B-1104(6) (2013). “While there is no
requirement that the factual allegations be exhaustive or
extensive, they must put a party on notice as to what acts,
omissions or conditions are at issue.” In re Hardesty, 150 N.C.
App. 380, 384, 563 S.E.2d 79, 82 (2002). “Merely using words
similar to the relevant statutory ground for termination is not
sufficient to comply with N.C. Gen. Stat. 7B-1104(6).” In re
H.L.A.D., 184 N.C. App. 381, 392, 646 S.E.2d 425, 433-34 (2007),
aff’d, 362 N.C. 170, 655 S.E.2d 712 (2008).
We agree with respondents that the petitions to terminate
their parental rights lack statements of facts in support of any
grounds for termination. Nevertheless, this deficiency is not
jurisdictional and instead constitutes a claim for relief under
Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
In re Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159
(1992). Respondents never moved for a dismissal under Rule
12(b)(6) in the trial court, and “a Rule 12(b)(6) motion may not
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be made for the first time on appeal.” In re H.L.A.D., 184 N.C.
App. at 392, 646 S.E.2d at 434. Accordingly, respondents have
failed to preserve this issue for appellate review. Respondent
mother presents no other arguments for our review, and we
therefore dismiss her appeal.
Respondent father also argues that the trial court erred in
ceasing reunification efforts. Respondent father contends three
of the trial court’s findings of fact in support of its
conclusion to cease reunification efforts with him are not
supported by record evidence. Respondent father’s arguments are
misplaced.
Our review of orders ceasing reunification efforts “is
limited to whether there is competent evidence in the record to
support the findings [of fact] and whether the findings support
the conclusions of law. The trial court’s findings of fact are
conclusive on appeal if supported by any competent evidence.”
In re L.M.T., 367 N.C. 165, 168, 752 S.E.2d 453, 455 (2013)
(citations and quotation marks omitted).
Respondent father specifically argues that in the trial
court’s 22 January 2013 order ceasing reunification efforts,
findings of fact 13, 22, and 23 are unsupported by any record
evidence. In these findings, the trial court stated:
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13. That although the parents have received
[] liberal three-hour weekly visitation
since March, 2012, the parents have failed
to demonstrate an ability to re-direct the
children; and failed to demonstrate the
ability to provide appropriate meals and
snacks on a consistent basis.
. . . .
22. That the respondent parents have been
resistant to complete all of the recommended
services. The parents refused to meet with
a budget counselor; and refused to meet with
a nutritionist, which would have been at no
cost to the parents. That when requested,
the parents stated that they have already
done these things, although they have not
demonstrated these skills.
23. That the respondent parents have not
demonstrated to the Court that they have
improved their situation, and have not
demonstrated to the Court their ability to
provide a safe and stable residence or that
they will be able to do so within a
reasonable time.
These findings of fact are fully supported by both the testimony
of Sharon Moore, a social worker assigned to the juvenile case,
and her report to the trial court. In turn, these findings,
coupled with the trial court’s unchallenged findings that a safe
return of the juveniles to respondent’s home was not likely
within the next six months and that further reunification
efforts would be futile, support its conclusion to cease
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reunification efforts. Accordingly, we affirm the trial court’s
order ceasing reunification efforts with respondent father.
Respondent father additionally argues the trial court erred
in concluding that grounds existed to terminate his parental
rights. We first address respondent father’s arguments
regarding the ground of neglect.
Grounds exist to terminate parental rights where the parent
has neglected the juvenile such that the court finds the
juvenile to be a neglected juvenile within the meaning of N.C.
Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1) (2013). A
neglected juvenile is defined in part as one 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[.]” N.C.
Gen. Stat. § 7B-101(15) (2013). Generally, “[i]n deciding
whether a child is neglected for purposes of terminating
parental rights, the dispositive question is the fitness of the
parent to care for the child ‘at the time of the termination
proceeding.’” In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d
236, 242 (2005) (quoting In re Ballard, 311 N.C. 708, 715, 319
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S.E.2d 227, 232 (1984)). However, “[w]here, as here, a child
has not been in the custody of the parent for a significant
period of time prior to the termination hearing, the trial court
must employ a different kind of analysis to determine whether
the evidence supports a finding of neglect.” In re Shermer, 156
N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations
omitted). A trial court may terminate parental rights based
upon prior neglect of the juvenile if “the trial court finds by
clear and convincing evidence a probability of repetition of
neglect if the juvenile were returned to her parents.” In re
Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
“Relevant to the determination of probability of repetition of
neglect is whether the parent has made any meaningful progress
in eliminating the conditions that led to the removal of [the]
child[].” In re J.H.K., 215 N.C. App. 364, 369, 715 S.E.2d 563,
567 (2011) (citation and quotation marks omitted).
Here, Linda and Anna had previously been found to be
neglected juveniles, and the trial court made numerous findings
of fact regarding respondent father’s failure to make any
meaningful progress in his case plan, which evince a probability
of repetition of neglect if the children were returned to his
care. After over three years of working with DSS toward
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reunification, the court found respondent father had not
developed a significant bond with Linda or Anna. Respondent
father was often disengaged from the children during visits,
failed to assist the mother with parenting during the visits,
and had to be prompted by the supervising social worker to
interact with his children. The court found respondent father
would occasionally demonstrate appropriate parenting skills
after direction from the social worker, but would not be able to
demonstrate the same skills just a week or two later without
prompting from the social worker. Respondent father also failed
to comply with recommended treatment services, including budget
and nutrition education or counseling, asserting that he had
previously received the services and they were unneeded, even
though DSS determined that respondents were struggling
financially, falling behind in their bills, and not providing
appropriate food or snacks for the children. Ultimately, after
visiting with respondents, the children began displaying
oppositional behavior outside of the visits, and Linda needed
counseling for dealing with anxiety that she developed from the
visits. The court further found that respondent father had not
demonstrated an ability to take Anna to the therapy and medical
appointments she required due to her speech apraxia, or even had
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an understanding of her disorder. Additionally, the court found
respondent father had failed to provide a safe and sanitary home
for the juveniles, and continued to fail to acknowledge any
responsibility for the reasons why Linda and Anna were in the
custody of DSS.
The trial court’s findings are either unchallenged by
respondent father, and thus binding on appeal, Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991), or are
supported by record evidence. We hold these findings support
the trial court’s conclusion that grounds exist to terminate
respondent father’s parental rights based on his past neglect of
his children and the probability of repetition of that neglect
if Linda and Anna were returned to his care. We reject
respondent father’s contention that the trial court’s conclusion
is founded solely upon their poverty, as throughout the history
of this case respondents rejected assistance offered by DSS to
alleviate the impact of their financial hardships. Similarly,
there is no evidence suggesting that respondent father’s recent
employment ameliorated the conditions underlying the court’s
findings suggesting a probability of repetition of neglect.
Accordingly, we hold the that trial court did not err in
concluding grounds existed to terminate respondent father’s
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parental rights to Linda and Anna pursuant to N.C. Gen. Stat. §
7B-1111(a)(1). As such, we need not address his arguments
regarding the trial court’s conclusion that grounds to terminate
his parental rights also existed under N.C. Gen. Stat. § 7B-
1111(a)(2). In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241,
246 (2005), aff’d per curiam, 360 N.C. 360, 625 S.E.2d 779(2006) (holding that when “the trial court finds multiple
grounds on which to base a termination of parental rights, and
an appellate court determines there is at least one ground to
support a conclusion that parental rights should be terminated,
it is unnecessary to address the remaining grounds”). Respondent
father does not challenge the trial court’s conclusion that it
is in the children’s best interests to terminate his parental
rights, and we thus affirm the trial court’s order terminating
the respondent father’s parental rights to Linda and Anna.
Dismissed in part, affirmed in part.
Chief Judge MARTIN and Judge HUNTER, Robert N., concur.
Report per Rule 30(e).