In re: L.M.B. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-406
No. COA21-544
Filed 21 June 2022
Alamance County, No. 19JT139
IN THE MATTER OF:
L.M.B.
Appeal by respondent mother and respondent father from orders entered 17
May 2021 and 2 June 2021 by Judge Frederick B. Wilkins Jr. in Alamance County
District Court. Heard in the Court of Appeals 22 February 2022.
Ewing Law Firm, P.C., by Robert W. Ewing, for respondent-appellant mother.
Kimberly Connor Benton for respondent-appellant father.
Jamie L. Hamlett for petitioner-appellee Alamance County Department of
Social Services.
Matthew D. Wunsche for the Guardian ad Litem.
GORE, Judge.
I. Factual and Procedural Background
¶1 On 28 July 2019, the Burlington Police Department (“BPD”) responded to a
service call at the Knights Inn motel. When law enforcement arrived, respondent
mother told the officer that respondent father had slapped her on the face and threw
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a remote control at her, which struck the infant L.M.B (“Lilly”) on the head.1
Respondent mother had a visible bruise from the slap. The responding officer also
noticed Lilly needed a diaper change and to be fed. Lilly was less than three months
old at the time. Respondent father was charged with assaulting respondent mother.
¶2 The Alamance County Department of Social Services (“DSS”) received a report
about the family on 8 August 2019. The social worker had difficulty arranging a
meeting with respondent parents. When the social worker met with respondent
mother, she denied any domestic violence with respondent father or that he hit Lilly
with a remote, but she agreed to have no contact with him pursuant to a no-contact
order. Once the no-contact order was lifted, however, respondent parents began
living together again.
¶3 On 3 September 2019, BPD received a service call at the Knights Inn for a child
welfare check. When the responding officer spoke to respondent mother, she was
“incoherent and said she had been up all night because she was concerned about
snakes” in the motel room. Respondent father was asleep on the bed and difficult to
wake up. It took several more minutes for respondent father to become coherent after
officers woke him. Respondent father also told the officers that there were snakes in
the motel room. Officers did not find any snakes in the room and contacted DSS.
1 We use a pseudonym to protect the identity of the juvenile and for ease of reading.
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¶4 DSS reported the motel room was in “complete disarray” and there was no
appropriate place for Lilly to sleep. There were open food containers, feminine
hygiene products on the floor, and no sheets on the bed.
¶5 On 20 September 2019, DSS filed a petition alleging Lilly was neglected and
dependent. DSS alleged respondent parents believed there were snakes in the motel
room where they lived with Lilly, although none were present. DSS requested
respondent parents submit to a drug screen, but both declined. During a later Child
and Family Team meeting, respondent parents denied substance misuse and
continued to assert there were snakes in the motel room. Respondent parents agreed
to a Temporary Safety Plan, which included placement with a maternal aunt and
uncle. Respondent father later objected to the placement. A Rule 17 Guardian ad
Litem was appointed for respondent father due to him suffering bipolar and
depressive episodes and a traumatic brain injury from being struck in the head.
¶6 On 6 November 2019, the trial court adjudicated Lilly neglected and
dependent. In the dispositional portion of the order, the trial court ordered
respondent mother: 1) maintain sufficient employment; 2) obtain and maintain safe
and stable housing; 3) utilize mental health services and undergo psychological
assessment; 4) engage in substance abuse treatment and submit to drug screens; 5)
participate in parenting and domestic violence classes; and 6) update DSS about her
progress on her case plan. The trial court ordered respondent father to take similar
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steps to achieve reunification, in addition to Substance Abuse Intensive Outpatient
Program (“SAIOP”) classes.
¶7 The trial court kept Lilly in her placement with the maternal aunt and uncle.
The trial court granted respondent parents weekly supervised visits with Lilly. In a
July 2020 order, the trial court expanded respondent parents’ visitation.
¶8 In September 2020, the trial court entered an initial permanency planning
order, which set a primary permanent plan of reunification and a secondary plan of
adoption. The trial court again ordered specific steps towards reunification as
outlined in its dispositional order. It further indicated visitation could expand to
include unsupervised visits if there were no issues or concerns with visitation.
¶9 A subsequent November 2020 order suspended all unsupervised visits between
respondent parents and Lilly. The trial court found that respondent parents had gone
to the home of a known drug dealer, that respondent father had suffered a cardiac
incident, and that respondent parents had submitted diluted urine samples for drug
screens. At the hearing, respondent father interrupted respondent mother’s
testimony and attempted to direct her. The next permanency planning hearing was
continued until January 2021, and the trial court changed the permanent plan to a
primary plan of adoption with a secondary plan of reunification.
¶ 10 On 29 January 2021, DSS filed a motion to terminate respondent parents’
parental rights to Lilly. As to both respondent parents, the motion alleged grounds
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of neglect, willful failure to make reasonable progress, and willful failure to pay a
reasonable portion of the cost of care. As to respondent father only, the motion also
alleged dependency.
¶ 11 At the termination hearing, social worker Freddie Omotosho testified that Lilly
came into DSS custody because of concerns about respondent parents’ domestic
violence, substance misuse, hallucinations, and lack of proper care and supervision.
Respondent parents were ordered in the initial disposition to resolve their housing,
mental health, substance abuse, and domestic violence issues to achieve reunification
with Lilly. Ms. Omotosho testified in detail about respondent parents’ lack of
progress on their case plans. Social worker Madalyn Schulz, who received the case
after Ms. Omotosho, similarly described respondent parents’ difficulties in working
with the services offered by DSS to complete the goals of their respective case plans.
¶ 12 Dr. Julianna Ludlam conducted psychological evaluations on both respondent
parents, which were admitted at the termination of parental rights adjudication
hearing. Dr. Ludlam described how both respondent parents denied the existence of
domestic violence and substance misuse despite evidence to the contrary, including
police reports from prior incidents. Dr. Ludlam testified she did not have “major
concerns” about respondent mother’s substance misuse, but that respondent father’s
frequent trips to the hospital “showed the extent of his potential substance abuse
problem,” in part because some addicts use the emergency department as a method
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of obtaining prescription drugs. Respondent parents described one another as great
parents, and they did not recognize any issues in their relationship with Lilly.
According to Dr. Ludlam, respondent mother’s ongoing relationship with respondent-
father and her continued defense of him placed Lilly “at higher risk.” Dr. Ludlam
testified:
So it was not my concern that either [respondent father] or
[respondent mother] would purposefully, intentionally
neglect or abuse their daughter. It was clear to me that
both parents love their daughter and want the best for her.
My concerns were, at the time of the evaluation, that
[respondent father’s] use of substances could—for one,
could either lead to her being neglected or being exposed to
risky situations involving drug use or the aftermath of drug
use. I think that was my primary concern.
¶ 13 After hearing the evidence, the trial court adjudicated grounds to terminate
respondent parents’ parental rights based on neglect, willful failure to make
reasonable progress, and willful failure to pay a reasonable portion of the cost of care.
In a separate dispositional order, the trial court also concluded that termination of
parental rights was in Lilly’s best interests. The dispositional order indicates that
the matter was heard by Judge Fred Wilkins, but the order is signed “F. Wilkins by
Bradley Reid Allen 6/1/21.”
II. Standard of Review
¶ 14 A termination of parental rights proceeding consists of a two-stage process:
adjudication and disposition. N.C. Gen. Stat. §§ 7B-1109, -1110 (2020). At
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adjudication, the trial court examines the evidence and determines whether sufficient
grounds exist under § 7B-1111 to authorize the termination of parental rights. § 7B-
1109(e). The burden is upon the petitioner to demonstrate that grounds for
termination exist, and the trial court’s findings of fact must be based on “clear, cogent,
and convincing evidence.” § 7B-1109(f). “If the trial court determines that any one
of the grounds for termination listed in § 7B-1111 exists, the trial court may then
terminate parental rights consistent with the best interests of the child.” In re T.D.P.,
164 N.C. App. 287, 288, 595 S.E.2d 735, 736-37 (2004); § 7B-1110(a).
¶ 15 “We review a trial court’s adjudication under N.C.G.S.§ 7B-1111 to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law. The trial court’s assessment of a juvenile’s
best interests at the dispositional stage is reviewed for abuse of discretion.” In re
E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quotation marks and citations
omitted). The trial court’s conclusions of law are subject to de novo review. In re
N.D.A., 373 N.C. 71, 74, 833 S.E.2d 768, 771 (2019). An abuse of discretion occurs
“where the court’s ruling is manifestly unsupported by reason or so arbitrary that it
could not have been the result of a reasoned decision.” In re N.K., 375 N.C. 805, 819,
851 S.E.2d 321, 332 (2020).
¶ 16 “When the trial court is the trier of fact, the court is empowered to assign
weight to the evidence presented at the trial as it deems appropriate. In this
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situation, the trial judge acts as both judge and jury, thus resolving any conflicts in
the evidence.” In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397 (1996)
(citations omitted). “[O]ur appellate courts are bound by the trial courts’ findings of
fact where there is some evidence to support those findings, even though the evidence
might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110-11, 316
S.E.2d 246, 252-53 (1984) (citations omitted). “Where no exception is taken to a
finding of fact by the trial court, the finding is presumed to be supported by competent
evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991) (citations omitted). “Moreover, we review only those findings
necessary to support the trial court’s determination that grounds existed to terminate
respondent’s parental rights.” In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58-59
(2019) (citation omitted).
III. Discussion
¶ 17 In the case sub judice, the trial court’s adjudication order was based on finding
grounds existed for terminating respondent parents’ parental rights pursuant to §
7B-1111(a)(1), (2), and (3) by clear, cogent, and convincing evidence. Specifically, the
trial court concluded as a matter of law that respondent parents had: (a) neglected
Lilly within the meaning of § 7B-101 and there is a high likelihood of repetition of
neglect if Lilly is returned to their care; (b) willfully left Lilly in foster care or
placement outside the home for more than 12 months without showing to the
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satisfaction of the court that reasonable progress under the circumstances had been
made in correcting those conditions which led to Lilly’s removal, and respondent
parents’ inability to provide care is not based upon their poverty; and (c) willfully
failed to pay a reasonable portion of the cost of care for Lilly although physically and
financially able to do so while Lilly was in DSS custody for a continuous period of six
months preceding the filing of the motion to terminate parental rights.
A. Adjudication
¶ 18 We first address the third ground for termination, failure to pay a reasonable
portion of the cost of care. Pursuant to § 7B-1111(a)(3), a parent’s rights can be
terminated if the parent willfully fails to pay, for six months preceding the filing of
the motion to terminate parental rights, a reasonable portion of the cost of care for
the juvenile although physically and financially able to do so. § 7B-1111(a)(3). DSS
filed its motion to terminate parental rights on 29 January 2021, and the relevant
six-month period to determine whether respondent parents had the ability to pay
their reasonable portion of the cost of care is from 29 July 2020 to 29 January 2021.
Our Supreme Court has held that a finding that a parent
has ability to pay support is essential to termination for
nonsupport. However, this Court has further clarified that
there is no requirement that the trial court make a finding
as to what specific amount of support would have
constituted a “reasonable portion” under the
circumstances, and therefore that the only requirement is
that the trial court make specific findings that a parent was
able to pay some amount greater than the amount the
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parent, in fact, paid during the relevant time period.
In re N.X.A., 254 N.C. App. 670, 676, 803 S.E.2d 244, 248, (purgandum), disc. rev.
denied, 370 N.C. 379, 807 S.E.2d 148 (2017).
¶ 19 Respondent parents selectively challenge several of the trial court’s findings of
fact as to each ground for termination. Regarding ground three, failure to pay a
reasonable portion of the cost of care, they argue the trial court erred by failing to
consider “in-kind” contributions they made in lieu of financial support and assert
their lack of support was not willful. Respondent father also challenges findings of
fact 88, 93 and 100, which indicate during the relevant six-month period, respondent
parents provided zero dollars towards the cost of Lilly’s care and made a conscious
decision not to pay child support.
¶ 20 However, there are a total of 245 remaining unchallenged findings of fact
which support the trial court’s reasoning. The trial court made many uncontested
findings of fact regarding child support which are binding on appeal. Some of those
unchallenged findings include but are not limited to the following:
80. The Respondent Mother was employed throughout the
majority of the life of the foster care case at K & W. During
the start of COVID, the mother was laid off but received
unemployment compensation.
81. The Respondent Mother then was employed through
Goodwill. That employment was short term as the mother
was terminated for stealing. She never informed the social
worker she was terminated or why she was terminated.
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82. The Respondent Mother then reported employment at
Food Lion. The Respondent Mother testified that she
works 30 hours a week at Food Lion. She had provided one
paycheck stub from Food Lion which indicates that
Respondent Mother works less than twenty hours a week.
83. The Respondent Father has received disability
payments through the life of the foster care case. He was
briefly employed through K & W.
84. In the dispositional order, the Respondent Parents
were ordered to provide child support and instructed on
how to get child support established. The mother could
work with Child Support Enforcement/IVD. The father
could establish a trust account. This was repeated in every
review and permanency planning order.
...
86. During the relevant six-month period, neither parent
made any effort to establish child support payments
through the appropriate options.
87. During the relevant six-month period, the mother
provided zero dollars towards the cost of care of the juvenile
despite having the ability to pay more than zero.
...
89. The parents have provided items during visitation such
as clothing, toys, diapers and wipes. There was no prior
agreement between the parents and the Alamance County
Department of Social Services that these items would be
counted towards child support or offset their child support
obligation. In fact, during this period of time, there were
ongoing court orders requiring the parents to pay their
reasonable portion of the cost of care of the juvenile.
90. The mother is able-bodied and has been employed
during the course of the foster care case and/or received
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unemployment benefits.
91. The Respondent Mother has willfully failed to pay her
reasonable portion for the cost of foster care during the
relevant six-month period.
92. The Respondent Mother has willfully failed to pay her
reasonable portion for the cost of foster care during the
relevant six-month period.
...
94. In the relevant six-month period prior to filing of the
motion to terminate parental rights, the parents paid zero
towards the cost of care for [Lilly].
...
97. In March of 2021, the Respondent Mother completed a
Voluntary support Agreement. It required her to pay
$50.00 a month effective March 1, 2021. The mother has
made one payment.
...
99. After filing of the motion to terminate parental rights,
the Respondent Father paid $300.00 into a trust account
established by the Alamance County Department of Social
Services for the benefit of [Lilly].
...
101. Further, during a Child and Family Team Meeting,
the Respondent Mother stated that her attorney advised
her not to worry about paying child support. This further
indicates a deliberate decision by the mother not to pay
child support despite a court order requiring such
payments.
102. The Alamance County Department of Social Services
has expended funds for the cost of care of the juvenile.
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¶ 21 Here, the uncontested findings support the trial court’s adjudication finding
grounds for termination of parental rights based on failure to pay a reasonable
portion of the cost of care. These findings indicate respondent mother was employed
throughout most of the life of the case and received unemployment benefits when she
lost her job. Respondent father also received disability payments and was briefly
employed. Respondent parents were ordered to establish child support and they
failed to do so.
¶ 22 Respondent mother cites In re J.A.E.W., 375 N.C. 112, 117, 846 S.E.2d 268,
271 (2020), for the proposition that a trial court is required to consider “in kind”
contributions as a form of support. However, In re J.A.E.W. contains no such holding.
This argument is premised upon one sentence, “[The respondent father] also did not
buy [the juvenile] clothing or other necessities while she was in foster care.” Id. In
context, this statement simply reinforces the undisputed fact that the respondent
father in that case failed to make any form of child support payment and failed to
make any other contribution to the care of his child while she was in DSS custody.
The In re J.A.E.W. decision does not require a trial court to consider items or gifts as
a form of support.
¶ 23 In this case, the trial court specifically acknowledged respondent parents had
provided “in kind” contributions in the form of clothing, toys, diapers, etc., during
their visits, but there was no agreement in place that these items would offset their
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support obligation. It was not error for the trial court to acknowledge these gifts but
also determine they did not qualify as court ordered financial support payments for
Lilly’s care.
¶ 24 Thus, the trial court’s adjudication order finding grounds existed for
termination of parental rights pursuant to § 7B-1111(a)(3) was based on clear, cogent,
and convincing evidence. Where there is sufficient evidence to support one ground of
termination for respondent parents’ parental rights, it is unnecessary for this Court
to address the remaining grounds for termination. See In re Moore, 306 N.C. 394, 404,
293 S.E.2d 127, 133 (1982) (“If either of the three grounds aforesaid is supported by
findings of fact based on clear, cogent and convincing evidence, the order appealed
from should be affirmed.”). Thus, we do not address respondent parents’ remaining
challenges to the trial court’s adjudication pursuant to § 7B-1111(a)(1) and (2) for
neglect and willful failure to make reasonable progress.
B. Best Interests Determination
¶ 25 Respondent mother has not challenged the trial court’s determination that the
termination of her parental rights would be in Lilly’s best interest. Therefore, we
affirm the trial court’s termination order with respect to respondent mother.
Respondent father does argue the trial court erred by finding it was in Lilly’s best
interests for his parental rights to be terminated. We address his arguments as
follows.
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¶ 26 Respondent father challenges findings of fact 12 and 28-31 of the dispositional
order and reasserts his prior challenges to the findings of fact as adopted from the
underlying adjudication order. However, most of his arguments do not allege the
findings are unsupported by evidence, but that the trial court weighed the evidence
improperly. In a termination of parental rights hearing, trial judge determines the
weight to be given the testimony and the reasonable inferences to be drawn
therefrom. If a different inference may be drawn from the evidence, the trial judge
alone determines the credibility of the witnesses and which inferences to draw and
which to reject. In re Hughes, 74 N.C. App. 751, 759, 300 S.E.2d 213, 218 (1985).
¶ 27 “After an adjudication that one or more grounds for terminating a parent’s
rights exist, the court shall determine whether terminating the parent’s rights is in
the juvenile’s best interest.” § 7B-1110(a).
In each case, the court shall consider the following criteria
and make written findings regarding the following that are
relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will
aid in the accomplishment of the permanent plan for
the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the
juvenile and the proposed adoptive parent,
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guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
Id.
¶ 28 Here, the trial court properly adjudicated grounds for terminating respondent
father’s parental rights. The dispositional order clearly states that the trial court
“considered all factors as outlined” in § 7B-1110 and includes written findings
addressing each of the relevant factors. We further note that these findings are
supported by competent evidence in the record. We conclude that the trial court did
not abuse its discretion by determining that it was in Lilly’s best interest to terminate
respondent father’s parental rights. See In re D.M., 378 N.C. 435, 440, 2021-NCSC-
95, ¶ 11 (discerning no abuse of discretion where the trial court made written findings
addressing each of the factors enumerated in § 7B-1110(a) and those findings were
supported by competent evidence presented at the termination hearing).
C. Valid Best Interests Order
¶ 29 In this case, Judge Bradley Reid Allen, Sr., signed the best interest order as
follows: “F. Wilkins by Bradley Reid Allen, Sr., 6/1/21.” Respondent parents contend
the trial court’s order terminating their parental rights was invalid because the
presiding trial judge, Frederick B. Wilkins, did not sign the best interests order. We
disagree.
¶ 30 North Carolina General Statutes Section 1A-1, Rule 52, governs findings by
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the trial court in non-jury proceedings. Under Rule 52, the trial court is “required to
do three things in writing: (1) To find the facts on all issues of fact joined on the
pleadings; (2) to declare the conclusions of law arising on the facts found; and (3) to
enter judgment accordingly.” Coggins v. Asheville, 278 N.C. 428, 434, 180 S.E.2d 149,
153 (1971) (purgandum) (emphasis added). Pursuant to § 7B-804, these
requirements apply to juvenile proceedings. Here, the presiding judge did not sign
the termination of parental rights order upon entry of judgment.
¶ 31 However, Rule 63 provides a procedure to follow when a district court judge is
unavailable:
If by reason of death, sickness or other disability,
resignation, retirement, expiration of term, removal from
office, or other reason, a judge before whom an action has
been tried or a hearing has been held is unable to perform
the duties to be performed by the court under these rules
after a verdict is returned or a trial or hearing is otherwise
concluded, then those duties, including entry of judgment,
may be performed:
...
(2) In actions in the district court, by the chief judge of the
district, or if the chief judge is disabled, by any judge of the
district court designated by the Director of the
Administrative Office of the Courts.
If the substituted judge is satisfied that he or she cannot
perform those duties because the judge did not preside at
the trial or hearing or for any other reason, the judge may,
in the judge’s discretion, grant a new trial or hearing.
§ 1A-1, Rule 63 (2020) (emphasis added). “The function of a substitute judge under
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this rule is ministerial rather than judicial.” In re Savage, 163 N.C. App. 195, 197,
592 S.E.2d 610, 611 (2004) (quotation marks and citations omitted).
¶ 32 Judge Allen did not sign the order in his own name, he signed it on behalf of
Judge Wilkins, over a signature block with Judge Wilkins’s name typed below. There
is no indication in the record that Judge Allen made any substantive determinations
in this case, and the written judgment is consistent with Judge Wilkins’s oral
rendering of judgment. Judge Allen signing the order on behalf of Judge Wilkins was
a ministerial act consistent with the plain language of Rule 63.
IV. Conclusion
¶ 33 For the foregoing reasons, we affirm the trial court’s adjudication and
disposition orders terminating respondent parents’ parental rights.
AFFIRMED.
Judges INMAN and ZACHARY concur.