In re P.V.M. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1155
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
In the Matter of:
Guilford County
No. 11 JT 163
P.V.M.
Appeal by respondent-father from order entered 18 July 2013
by Judge Wendy Enochs in Guilford County District Court. Heard
in the Court of Appeals 31 March 2014.
Mercedes O. Chut, for Guilford County Department of Social
Services, petitioner-appellee.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for guardian ad litem.
J. Thomas Diepenbrock for respondent-appellant.
ERVIN, Judge.
Respondent-Father David M. appeals from an order
terminating his parental rights in P.V.M.1 On appeal,
Respondent-Father contends that the trial court erred by
determining that his parental rights in Peter were subject to
1
P.V.M. will be referred to throughout the remainder of this
opinion as “Peter,” which is a pseudonym used for ease of
reading and to protect the juvenile’s privacy.
-2-
termination and that Peter’s best interests would be served by
the termination of Respondent-Father’s parental rights. After
careful consideration of Respondent-Father’s challenges to the
trial court’s order in light of the record and the applicable
law, we conclude that the trial court’s order should be
affirmed.
I. Factual Background
Peter was born out of wedlock in 2006. On 8 March 2011,
the Guilford County Department of Social Services filed a
petition alleging that Peter was a neglected and dependent
juvenile based upon allegations that Peter’s mother, Valerie M.,
lacked stable and adequate housing, had a substance abuse
problem, could not properly care for Peter, and had failed to
comply with her case plan and obtained the issuance of an order
authorizing it to take Peter into non-secure custody. As the
result of DNA testing conducted on 1 March 2011, Respondent-
Father was determined to be Peter’s father. On 9 August 2011,
Judge K. Michelle Fletcher entered an order finding that Peter
was a neglected and dependent juvenile, retaining Peter in DSS
custody, ordering both of Peter’s parents to comply with their
case plans, and authorizing visitation between Respondent-Father
and Peter.
-3-
Although Respondent-Father initially complied with portions
of his case plan and developed a loving relationship with Peter,
he failed to obtain independent housing, failed a number of
substance abuse screens, and engaged in other conduct that
raised questions about his ability to successfully parent Peter.
On 17 December 2012, DSS filed a petition seeking to have the
parental rights of both Peter’s mother and Respondent-Father in
Peter terminated. On 19 February 2013, Peter’s mother
relinquished her parental rights in Peter. After conducting a
hearing on 25 June 2013, the trial court entered an order on 18
July 2013 determining that Respondent-Father’s parental rights
in Peter were subject to termination on the grounds that he had
(1) neglected Peter; (2) willfully left Peter in foster care for
more than twelve months without making reasonable progress
toward correcting the conditions that had led to Peter’s removal
from the home; (3) willfully refused to pay a reasonable portion
of the cost of Peter’s care despite having the physical and
financial ability to do so during the six month period preceding
the filing of the termination petition; and (4) failed to
establish paternity, legitimate Peter, or provide substantial
financial support or consistent care for Peter and his mother
and that Peter’s best interests would be served by the
termination of Respondent-Father’s parental rights. Respondent-
-4-
Father noted an appeal to this Court from the trial court’s
order.
II. Substantive Legal Analysis
In his brief, Respondent-Father contends that the trial
court erred by finding that his parental rights in Peter were
subject to termination and that Peter’s best interests would be
served by the termination of his parental rights. More
specifically, Respondent-Father contends that the trial court
erred by determining that his parental rights in Peter were
subject to termination on the grounds of neglect, failure to
make reasonable progress, failure to make a reasonable
contribution toward the cost of Peter’s care, and failure to
establish paternity, legitimate Peter, or provide substantial
support or consistent care for Peter and his mother on the
grounds that the record evidence and the trial court’s findings
did not support these determinations and by failing to properly
consider certain relevant factors in determining that Peter’s
best interests would be served by the termination of Respondent-
Father’s parental rights. Respondent-Father’s arguments do not
justify a decision to overturn the trial court’s termination
order.
A. Standard of Review
-5-
“The standard of review in termination of parental rights
cases is whether the findings of fact are supported by clear,
cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law. We then consider, based
on the grounds found for termination, whether the trial court
abused its discretion in finding termination to be in the best
interest of the child.” In re Shepard, 162 N.C. App. 215, 221-
22, 591 S.E.2d 1, 6 (citation and quotation marks omitted),
disc. review denied sub nom. In re D.S., 358 N.C. 543, 599
S.E.2d 42 (2004). We will now utilize the applicable standard
of review in evaluating the validity of Respondent-Father’s
challenges to the validity of the trial court’s order.
B. Grounds for Termination
In his initial challenge to the trial court’s termination
order, Respondent-Father contends that the trial court erred by
concluding that he had neglected Peter and that there was a
reasonable probability that Peter would be subject to additional
neglect in the event that Respondent-Father were to be made
responsible for his care. In support of this contention,
Respondent-Father argues that the trial court’s determination
that his parental rights in Peter were subject to termination
for neglect lacked adequate support in either the record
evidence or the trial court’s findings of fact given that Peter
-6-
was taken into DSS custody on the basis of his mother’s neglect
of Peter rather than on the basis of any of Respondent-Father’s
own conduct and that Respondent-Father’s parental rights should
not be terminated based upon neglectful conduct engaged in by
someone else. We do not find these arguments persuasive.
A parent’s parental rights in his or her child are subject
to termination on the grounds of neglect pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1). A parent neglects his or her child by
failing to provide the child with proper care, supervision,
discipline or a safe environment, or by abandoning the child.
N.C. Gen. Stat. § 7B-101(15). As the Supreme Court has clearly
stated:
[t]he fact that a parent does provide love,
affection and concern, although it may be
relevant, should not be determinative, in
that the court could still find the child to
be neglected within the meaning of our
neglect and termination statutes. Where the
evidence shows that a parent has failed or
is unable to adequately provide for his
child’s physical and economic needs, whether
it be by reason of mental infirmity or by
reason of willful conduct on the part of the
parent, and it appears that the parent will
not or is not able to correct those
inadequate conditions within a reasonable
time, the court may appropriately conclude
that the child is neglected.
In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251-52
(1984). In determining that a parent’s parental rights in a
child are subject to termination for neglect, the trial court
-7-
must conclude that neglect exists at the time of the termination
hearing or that there is a probability that neglect will occur
in the future. See In re Ballard, 311 N.C. 708, 715, 319 S.E.2d
227, 232 (1984). A prior adjudication that the child is abused
or neglected is not required in order to terminate parental
rights on this ground. In re Faircloth, 153 N.C. App. 565, 571,
571 S.E.2d 65, 69 (2002).
In its termination order, the trial court found, among
other things, that Respondent-Father had completed a parenting
assessment and complied with the recommendations resulting from
the assessment, that Respondent-Father had failed to obtain
stable housing given that he did not have a permanent place at
which he and Peter could live at the time of the termination
hearing, and that he had tested positive for alcohol or
controlled substances eight times between 3 May 2011 and 16
April 2013 despite participating in substance abuse treatment.
More particularly, the trial court found that:
The father was previously renting a room at
a boarding house from his significant other,
. . . . [His significant other] had
reported to DSS that this was a temporary
living situation for the father. Subsequent
to that, the father obtained subsidized
housing for a brief period of time, but was
later evicted, reportedly due to nonpayment
of rent. Thereafter he returned to the home
of [his significant other]. At some point
during the pendency of this matter, [the
father’s significant other] indicated that
-8-
the juvenile could come and stay with [the
father] at her home, but [the father] has
since been required to leave due to a
disagreement between himself and [his
significant other’s] daughter. [The father]
is currently staying with a friend, but has
been told that he must vacate that residence
within the next 30 days. He does not have
another place to live arranged at this time.
. . . .
The father completed a substance abuse
assessment on [8 August 2012]. He was
referred for outpatient services at Daymark
Recovery Center. The father participated in
group counseling two times a week. The
father is now participating in group
sessions two times a week and in Individual
sessions two times per month at Family
Services of the Piedmont. The father has
complied with random drug screens. The
father has tested negative for all illicit
substances nine separate times since the
child came into care. However, the father
has tested positive for illicit substances
or alcohol as follows:
May 3, 2011 — positive for alcohol
June 4, 2012 — positive for alcohol
July 17, 2012 — positive for cocaine
July 25, 2012 — positive for cocaine
January 5, 2013 — positive for cocaine and
marijuana
February 25, 2013 — positive for cocaine
March 5, 2012 — positive for cocaine
April 16, 2013 — positive for cocaine
In addition, the trial court found that:
[The father] has not achieved substantial
compliance with the objectives of his case
plan. He has not been able to provide a
secure or stable home for the juvenile or
show that he has effectively addressed his
substance abuse problem. He has not been
-9-
able to demonstrate that he has been able to
translate the teachings of the parenting
classes into his own interactions with
[Peter]. It is evident that he cares for
[Peter] very much, but he has not gained the
skills to effectively parent this child or
provide a safe and secure home for him.
As a result, the trial court determined that Respondent-Father’s
parental rights in Peter were subject to termination for neglect
as authorized by N.C. Gen. Stat. § 7B-1111(a)(2) given that
Respondent-Father “has neglected the juvenile within the meaning
of [N.C. Gen. Stat. §] 7B-101, and such neglect is reasonably
likely to continue if the said juvenile is returned to his
custody and control.”
The trial court’s findings of fact demonstrate that
Respondent-Father is unable to provide for Peter’s physical and
economic needs, has had to rely upon friends for temporary
housing for himself, and has been evicted from subsidized
housing for failure to pay rent. The trial court’s findings
further show that Respondent-Father failed to abstain from the
use of illicit substances given the fact that he has tested
positive for consumption of alcohol, cocaine, and marijuana on
several occasions between 3 May 2011 and 16 April 2013.
Finally, the trial court found that Respondent-Father has failed
to apply what he has been taught in parenting classes during his
own interactions with Peter and has not gained the skills
-10-
necessary to parent Peter effectively or provide a safe and
secure home for him. As a result of the fact that Respondent-
Father has failed to challenge the sufficiency of the record
support for these findings, all of which relate to conduct by
Respondent-Father rather than by Peter’s mother, the relevant
findings of fact are presumed to have adequate evidentiary
support and are binding upon us for purposes of appellate
review. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133
(1982).
As this Court has previously held, the fact that a parent
has failed to provide a stable residence for a child and exposed
the child to users of illegal drugs supports a determination of
neglect. In re Helms, 127 N.C. App. 505, 511-12, 491 S.E.2d
672, 676 (1997). The trial court’s findings of fact reveal the
existence of just such a situation in this case. As a result,
we hold that the trial court’s findings have adequate record
support; that these findings support the trial court’s
determination that Respondent-Father has neglected Peter and
that there is a reasonable probability that Peter will be
neglected if Respondent-Father is made responsible for his care
in the future; that the fact that Peter was initially placed
into DSS custody as a result of conduct in which Peter’s mother
engaged does not preclude a determination that Respondent-
-11-
Father’s parental rights in Peter were subject to termination
for neglect; and that the trial court did not err by concluding
that Respondent-Father’s parental rights in Peter were subject
to termination for neglect.2
C. Best Interests Determination
In addition, Respondent-Father contends that the trial
court erred by concluding that Peter’s best interests would be
served by terminating Respondent-Father’s parental rights. More
specifically, Respondent-Father argues that the trial court
failed to properly consider the criteria enunciated in N.C. Gen.
Stat. § 7B-1110(a) in making its best interests decision given
that it failed to give adequate weight to the strength of
Respondent-Father’s bond with Peter; failed to give adequate
weight to the poor health and advanced age of Peter’s
prospective adoptive parent, who was his maternal grandmother;
and ignored a therapist’s testimony to the effect that a
2
Although Respondent-Father has also challenged the trial
court’s determination that his parental rights in Peter were
subject to termination for failure to make reasonable progress
toward correcting the conditions that led to his placement in
DSS custody, to pay a reasonable portion of the cost of Peter’s
care, and to establish paternity, legitimate Peter, or provide
reasonable financial assistance to or care for Peter and his
mother, we need not address these components of Respondent-
Father’s challenge to the trial court’s order given that a
single ground for termination suffices to support a
determination that a parent’s parental rights are subject to
termination. 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).
-12-
decision to terminate Respondent-Father’s parental rights would
not be in Peter’s best interests. We do not find these
arguments persuasive.
A trial court’s decision concerning the extent to which the
termination of a parent’s parental rights would be in the
child’s best interests is discretionary in nature and is, as we
have already noted, reviewed on appeal using an abuse of
discretion standard of review. 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).
According to N.C. Gen. Stat. § 7B-1110(a), the trial court must
consider “[t]he age of the juvenile”; “[t]he likelihood of
adoption of the juvenile”; “[w]hether the termination of
parental rights will aid in the accomplishment of the permanent
plan for the juvenile”; “[t]he bond between the juvenile and the
parent”; “[t]he quality of the relationship between the juvenile
and the proposed adopting parent, guardian, custodian, or other
permanent placement”; and “[a]ny [other] relevant
consideration.” In making its best interests decision, a trial
court is entitled to assign more weight to one or more of the
-13-
statutorily delineated factors than to others. In re C.L.C.,
171 N.C. App. 438, 448, 615 S.E.2d 704, 709 (2005), aff’d, 360
N.C. 475, 628 S.E.2d 760 (2006).
In its order, the trial court found that Peter is six years
old and highly adoptable. In addition, the trial court found
that the likelihood that Peter would be adopted by his maternal
grandmother, who has been involved in his care since birth, who
had become his foster parent after Peter was taken into DSS
custody, and who had been responsible for his care on a full-
time basis for 25 months prior to the termination hearing, was
high. The trial court further found that Peter is a bright,
healthy, and well-adjusted child; that Peter had thrived in the
care of his maternal grandmother; that Peter referred to his
maternal grandmother’s residence as his home; that Peter knew
that his maternal grandmother would provide for all of his
needs; and that Peter had known his maternal grandmother to be
his caretaker for his entire life. Although the trial court
found the bond between Peter and his maternal grandmother was
“very strong,” it characterized the bond between Peter and
Respondent-Father as simply “strong.” In apparent recognition
of the advanced age and less-than-robust health of Peter’s
maternal grandmother, the trial court noted that Peter’s half-
brother, who attends college, has lived with Peter’s maternal
-14-
grandmother since the age of two, continues to live in that home
when he is not attending school, and actively supports his
maternal grandmother by helping her care for Peter when he is at
home and that one of Peter’s uncles has played an active role in
Peter’s life and has helped Peter’s maternal grandmother care
for Peter. Although Respondent-Father might have preferred that
the trial court weigh the relevant factors differently in making
its best interests decision, we are not entitled to disturb a
trial court’s best interests determination on the grounds
advanced in Respondent-Father’s brief. As a result, given that
a careful analysis of the relevant portions of the trial court’s
order demonstrates that the trial court carefully weighed the
relevant statutory criteria and utilized those statutory
criteria to make a reasoned evaluation of whether Peter’s best
interests would be served by the termination of Respondent-
Father’s parental rights, we conclude that the trial court did
not commit any error of law in the course of making its best
interests determination.
III. Conclusion
Thus, for the reasons set forth above, none of Respondent-
Father’s challenges to the trial court’s order justify a
decision to provide an award of appellate relief. As a result,
the trial court’s order should be, and hereby is, affirmed.
-15-
AFFIRMED.
Judges ROBERT N. HUNTER, JR., and DAVIS concur.
Report per Rule 30(e).