In re L.J.C. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-97
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
IN THE MATTER OF:
L.J.C., IV Wake County
No. 12 JT 04
Appeal by respondent from order entered 12 February 2013 by
Judge Monica Bousman in Wake County District Court. Heard in
the Court of Appeals 29 May 2014.
Office of the Wake County Attorney, by Roger A. Askew, for
petitioner-appellee Wake County Human Services.
Administrative Office of the Courts, by Tawanda N. Foster,
Appellate Counsel, for guardian ad litem.
Robert W. Ewing for respondent-appellant.
DAVIS, Judge.
Respondent-father L.C. (“Respondent”) appeals from an order
terminating his parental rights to his son L.J.C., IV,
(“Larry”).1 After careful review, we affirm.
1
The pseudonym “Larry” is used throughout this opinion to
protect the identity of the child and for ease of reading.
-2-
Factual Background
Respondent and S.G.2 are the parents of Larry, born in
December 2010. On 29 November 2011, Wake County Human Services
(“WCHS”) received a report that Larry appeared dirty and had a
rash that was not receiving proper treatment. In addition, it
was reported that Larry’s home was inundated with roaches and
flies.
After receiving the report, WCHS initiated an investigation
and discovered that Larry’s home was, in fact, infested with
roaches and flies and smelled of animal waste from “three to
four dogs that lived in the home that were afflicted with mange
or fleas.” As a result, WCHS determined that the family’s home
was unsafe for a newborn child. Respondent and S.G. took Larry
to the home of Larry’s paternal grandmother in Alamance County.
WCHS requested that Alamance County conduct a safety assessment
of the paternal grandmother’s residence where Larry would be
living. The assessment revealed that Larry’s paternal
grandmother’s husband — who also lived at the residence — had
been convicted of murder in 1998. Because of the prior murder
conviction, Larry’s placement with his paternal grandmother was
2
S.G, Larry’s mother, previously relinquished her parental
rights as to Larry and, therefore, is not a party to this
appeal.
-3-
not approved by the Alamance County Department of Social
Services. Respondent and S.G. then entered into a new safety
plan with WCHS that provided for S.G. and Larry to stay with
S.G’s paternal uncle.
On 10 January 2012, WCHS filed a petition alleging that
Larry was a neglected and dependent juvenile. The petition
stated that (1) Respondent and S.G. were not complying with
their safety plans; (2) Respondent had been convicted of assault
with a deadly weapon on 6 January 2012 and placed on probation;
(3) Respondent had reported that “he [was] receiving disability
due to ADHD, PTSD Bi-Polar [sic] and other things he cannot
remember”; and (4) S.G. had expressed that she was not able to
provide a suitable home for Larry. WCHS obtained nonsecure
custody of Larry.
In an order entered 15 February 2012, the trial court
adjudicated Larry a neglected juvenile pursuant to a consent
order. The court ordered Respondent to (1) establish paternity;
(2) consent to the release of his mental health records; (3)
obtain sufficient housing and employment to meet the needs of
himself and Larry; (4) complete a mental health assessment and
follow applicable recommendations; (5) complete a positive
parenting class and demonstrate knowledge learned therefrom; (6)
-4-
maintain regular contact with the social worker; and (7)
consistently visit Larry in accordance with the visitation plan.
WCHS filed a motion to terminate Respondent’s parental
rights on 21 November 2012 on the grounds that Respondent had
neglected Larry and that repetition of neglect was likely to
occur if Larry was returned to Respondent’s care. The trial
court conducted a hearing upon the motion on 18 January 2013.
By order entered 12 February 2013, the trial court terminated
the parental rights of Respondent pursuant to N.C. Gen. Stat. §
7B-1111(a)(1). Respondent gave timely notice of appeal.
Analysis
A proceeding to terminate parental rights is a two-step
process involving an adjudication phase and a disposition phase.
In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908
(2001). During the adjudication phase, the trial court must
determine whether the petitioner has established by clear,
cogent, and convincing evidence that at least one of the ten
grounds for termination enumerated in N.C. Gen. Stat. § 7B–1111
exists. Id. If the court determines that the existence of a
statutory ground for termination was established, it then moves
into the disposition phase in which it considers whether the
-5-
termination of parental rights is in the best interests of the
juvenile. Id.
On appeal, we review a trial court's order terminating
parental rights to determine whether the court's findings of
fact are supported by clear, cogent, and convincing evidence and
whether those findings, in turn, support its conclusions of law.
In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6, disc.
review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). Unchallenged
findings of fact are binding on appeal. See In re Humphrey, 156
N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (“Findings of
fact to which a respondent did not object are conclusive on
appeal.”).
N.C. Gen. Stat. § 7B–1111 lists neglect as one of the
enumerated grounds for termination of parental rights and
provides that a trial court may terminate a parent's rights if
it determines that the juvenile is a neglected juvenile within
the meaning of N.C. Gen. Stat. § 7B–101. N.C. Gen. Stat. § 7B–
1111(a)(1)(2013). N.C. Gen. Stat. § 7B–101 defines a neglected
juvenile as one who “does not receive proper care, supervision,
or discipline” from a parent or caretaker or “who lives in an
environment injurious to the juvenile's welfare[.]” N.C. Gen.
Stat. § 7B–101(15)(2013). “A finding of neglect sufficient to
-6-
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). However,
when the parent has not had custody of the child
for a significant period of time prior to
the termination hearing, requiring the
petitioner in such circumstances to show
that the child is currently neglected by the
parent would make termination of parental
rights impossible. In those circumstances,
a trial court may find that grounds for
termination exist upon a showing of a
history of neglect by the parent and the
probability of a repetition of neglect.
In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005)
(citations and quotation marks omitted).
On appeal, Respondent argues that the trial court erred in
terminating his parental rights based on neglect. However, he
does not argue that the trial court’s findings of fact are
without evidentiary support. Instead, Respondent argues that
the trial court “failed to give proper weight to the evidence
presented” and should have drawn different conclusions from the
evidence. We disagree.
It is the trial “judge’s duty to weigh and consider all
competent evidence, and pass upon the credibility of the
witnesses, the weight to be given their testimony and the
reasonable inferences to be drawn therefrom.” In re Whisnant,
-7-
71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). “It is not
the function of this Court to reweigh the evidence on appeal.”
Garrett v. Burris, ___ N.C. App. ___, ___, 735 S.E.2d 414, 418
(2012), aff'd per curiam, 366 N.C. 551, 742 S.E.2d 803 (2013).
Moreover, because Respondent has failed to challenge the trial
court’s findings, they are binding on appeal. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
In the present case, the trial court made the following
pertinent findings of fact to support its conclusion that
Respondent’s parental rights should be terminated on the ground
of neglect:
21. That the father has not established
paternity as ordered, but he is the
presumptive father of the child since his
name appears on the birth certificate as the
father of the child.
. . . .
23. That the father has not obtained
sufficient housing to meet the needs of
himself and his child, nor provided
verification of such. He remains at the
same home that was not approved by Alamance
County DSS for placement of the child on
December 15, 2011. [Respondent] provided no
evidence that the persons that presented
safety concerns have left the home.
24. That the father has not obtained any
employment since ordered by the Court to do
so and it is unknown whether his SSI is
sufficient to meet the needs of himself and
-8-
his child. He testified that he is training
for employment at Burger King, but provided
no documentation of this employment.
25. That the father completed a substance
abuse evaluation which recommended that he
engage in individual therapy, obtain a
medication follow-up, and submit to random
drug screens. A mental health assessment
was not completed due to his failure to
present clean drug screens.
26. That the father attended only two
sessions of individual therapy to address
his mental health needs. In July 2012, he
was discharged by the service provider,
Triumph, Inc. He also did not complete a
parenting class as ordered by the Court.
27. That the father did not comply with five
(5) requests by the social worker to
complete genetic marker testing. He also
failed to comply with the social worker[’s]
random drug screen requests, and he did not
present any evidence that he complied with a
random screen ordered by the Court at the
May 2012 review of this matter. He tested
positive for use of marijuana in a screen
requested by his probation officer, which
led to his incarceration for violation of
his probation in August 2012.
28. That throughout this matter,
[Respondent] continued to display a
disruptive and non-compliant attitude with
the agency, demonstrated by hostile and
accusatory behavior at several planning
meetings and visits set up by WCHS, at times
in the presence of his son.
29. That for several months after the filing
of the petition, the father was consistent
with his visitation; however there were
concerns that he did not demonstrate
-9-
effective parenting skills. At several
visits he was not attentive to his son but
more interested in raising issues about the
case. He has not visited his child since
August 2012 when he was released from jail.
He was incarcerated again in November 2012
on charges of larceny and obtaining property
by false pretenses.
. . . .
32. That in light of the pattern of neglect
prior to the filing of the petition in
January 2012, the adjudication of the child
as a neglected juvenile, and the father’s
failure to comply with the orders of the
Court to correct the conditions which led to
the removal of the child and placement in
foster care, it is likely that the pattern
of neglect of the child would continue if
placed in the care of the father.
We hold that the trial court’s unchallenged findings of
fact support its conclusion of law that the termination of
Respondent’s parental rights is appropriate. The record
demonstrates that Respondent did not correct the conditions — as
his case plan required him to do — that led to the adjudication
of neglect. Specifically, he failed to (1) obtain sufficient
housing to meet the safety needs of his son; (2) complete a
mental health assessment after repeatedly failing to pass his
random drug screens; and (3) establish his paternity of Larry
because of his noncompliance with the social worker’s repeated
requests that he complete genetic marker testing.
-10-
In light of the history of neglect by Respondent, the lack
of changed conditions, and the probability of a repetition of
neglect based on Respondent’s failure to take the proper steps
to correct the conditions that led to the adjudication of
neglect, we affirm the termination of parental rights on that
ground. See In re J.W., 173 N.C. App. 450, 465, 619 S.E.2d 534,
545 (2005) (holding that trial court's finding that respondent
failed to comply with her case plan supported conclusion of
neglect), aff'd per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006).
Conclusion
For the reasons stated above, we affirm the trial court’s
order terminating Respondent’s parental rights.
AFFIRMED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).