In re: K.M.C. & M.C.C. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-573
Filed 21 March 2023
Henderson County, Nos. 14JT70 15JT136
IN THE MATTER OF: K.M.C. & M.C.C.
Appeal by defendant from judgment entered 20 April 2022 by Judge Gene
Johnson in Henderson County District Court. Heard in the Court of Appeals
21 February 2023.
Mercedes O. Chut, for the respondent-appellant mother.
Susan Davis, for the petitioner-appellee.
Battle, Winslow, Scott & Wiley, PA, by M. Greg Crumpler for guardian ad litem.
TYSON, Judge.
Tanya Butler Carroll (“Mother”) appeals from an order entered on 20 April
2022, which terminated both Mother’s and Father’s parental rights. Mother appeals.
We affirm.
I. Background
Henderson County Department of Social Services (“DSS”) obtained custody of
Mother’s children, Kevin and Michael, who were adjudicated neglected juveniles on
three separate occasions. See N.C. R. App. P. 42(b) (pseudonyms used to protect the
identity of minors). The Guardian Ad Litem’s Court Report asserted “[d]rug abuse is
the root cause of what has brought these children into [DSS’s] custody three times.”
IN RE K.M.C. & M.C.C.
Opinion of the Court
The juveniles were first adjudicated as neglected on 14 January 2016 after
Mother and Father were arrested for felony and misdemeanor drug charges. Twenty-
two-months old Kevin and six-months old Michael were present when their parents
were arrested. Law enforcement officers “discovered numerous uncapped syringes
used for methamphetamines and knives on the floor within reach of both juveniles,
including a knife in the living room with a 5-6 inch blade and 2 uncapped syringes
found in the couch.” Law enforcement also found methamphetamines and narcotics
present inside the home. Custody of both boys was returned to Mother six months
later on 19 July 2018. Father was incarcerated at the N.C. Department of
Corrections.
The juveniles were again adjudicated as neglected a year later on 25 July 2019.
While conducting a traffic stop of a vehicle Mother was driving on 1 March 2019, law
enforcement found “28.27 grams of methamphetamine, 9 MM bullets, Clon[az]epam,
precut corner bags, a measuring spoon[,] and brass knuckles.” Kevin, the older son,
and two other adults were also present inside the car. Nineteen days later, law
enforcement found methamphetamine, needles, baggies with drug residue, drug
paraphernalia, and a suboxone patch in the home where the juveniles were living.
Kevin and Michael both tested positive for methamphetamine and amphetamines
and were removed from the home. Custody was again returned to Mother on 6 July
2020, because Mother represented she was no longer staying with Father, who had
not completed his case plan. Father returned to the home within two days after
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IN RE K.M.C. & M.C.C.
Opinion of the Court
Mother had regained custody.
The juveniles were adjudicated neglected for the third and most recent time on
21 December 2020. The juveniles were taken into DSS’s custody on 7 October 2020
and have since remained outside of Mother’s and Father’s home.
When most recently adjudicating the children as neglected, the trial court
found: (1) the juveniles were left alone on two separate occasions in July and August
2020; (2) Mother failed to bring Michael to his MRI appointments on three separate
occasions, which were critical to Michael’s ongoing follow-up care for brain cancer; (3)
a domestic violence altercation purportedly occurred on 6 October 2020 between the
parents in the presence of the juveniles where Mother stabbed Father in the hand
with a pair of scissors; (4) DSS was unable to access the home because the parents’
bedroom was padlocked; (5) Father admitted to recent substance abuse; (6) Mother
refused one hair follicle test and three urine drug screens; (7) Mother and Father
asserted and held themselves as being separated, but they appeared to be living
together during each of the social worker’s multiple home visits; and, (8) Michael
tested positive for amphetamines and methamphetamines.
At the disposition hearing, the trial court set forth reunification requirements,
specifically for Mother:
a. Mother shall obtain a Comprehensive Clinical
Assessment from a certified provider acceptable to [DSS,]
[and] [p]rovide the assessor with truthful and accurate
information.
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IN RE K.M.C. & M.C.C.
Opinion of the Court
b. Mother shall follow and successfully complete all the
recommendations of the assessment.
c. Mother shall submit to random drug screens.
...
g. Mother shall cooperate and/or ensure that the juveniles’
medical, dental, developmental evaluations and treatment
needs are met and comply with recommendations.
...
j. Mother shall obtain and maintain an appropriate and
safe residence for the juveniles.
...
l. Mother shall provide the Social Worker with a physical
residence address, a mailing address if different from the
residence address, [and] a current and an operational
telephone number. Mother shall promptly update this
information with the Social Worker upon any changes.
m. Mother shall sign and keep current any and all releases
of information necessary to allow the exchange of
information between [DSS] and the providers.
Permanency Planning Review hearings were held on 4 March 202l and 1 April
2021, and the trial court added the following requirements for Mother in the order
filed on 6 May 2021:
a. The mother shall sign a release of information for
October Road to enable [DSS] to access the substance use
assessment on file.
b. The mother shall sign a release of information for Pardee
Hospital, LabCorp, Wolfe, Inc. and Pardee Urgent Care for
any records concerning the mother’s drug use and/or drug
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IN RE K.M.C. & M.C.C.
Opinion of the Court
screens.
The trial court found after the hearing to terminate parental rights:
27. The mother has completed several Comprehensive
Clinical Assessments. However, she did not provide
truthful and accurate information on the assessments.
28. On October 27, 2020, the mother completed an
assessment with RHA. She provided inaccurate
information and was asked to complete another
assessment.
29. On March 11, 2021, the mother completed an
assessment with October Road. The mother admitted to
the Social Worker that she lied on the assessment to try to
control the service recommendations.
30. On May 13, 2021, the mother completed an assessment
with MAHEC. Again, the mother provided inaccurate
information and was asked to complete a new assessment.
31. On June 16, 2021, the mother was voluntarily
committed to Advent Hospital due to suicidal ideation. The
mother denies she was there for suicidal ideation, but
rather she was hoping to be admitted to address her drug
use. At Advent the mother admitted to using
methamphetamine, marijuana[,] and heroin. The mother
was discharged on June 23, 2021.
32. The mother has not completed any of the
recommendations from the various assessments.
33. RHA recommended medication management, group
therapy, individual therapy, and peer support.
34. The October Road assessment recommended 240 hours
of partial hospitalization for Stimulant Use Disorder,
Severe and Cannabis Use Disorder.
35. MAHEC recommended Al-Anon meetings and
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IN RE K.M.C. & M.C.C.
Opinion of the Court
individual therapy.
36. Advent recommended outpatient therapy with Blue
Ridge Health and to contact First Contact.
37. On October 7, 2021, the court required the mother to
complete a full psychological assessment at GRANDIS.
38. The first available appointment was February 2, 2022.
The mother completed the assessment on this day.
39. During the assessment the mother stated she resides
with her husband, [Redacted]. She stated there are verbal
conflicts with her husband. She admitted to using
marijuana 3 days a week, twice a day and that she last
used methamphetamine one month prior.
40. The GRANDIS assessment recommended intensive
substance abuse treatment, group therapy, parenting
classes, intimate partner violence classes[,] and mental
health treatment services. The mother received these
recommendations 10 days prior to today’s hearing.
41. The prognosis from the GRANDIS evaluation found
that the mother’s treatment motivation is somewhat lower
than is typical of individual[s] being seen in a treatment
setting. Her responses suggest that she is satisfied with
herself as she is, that she is not experiencing marked
distress and[,] as a result, she sees little need for changes
in her behaviors. As such, the mother would be at risk for
early termination from her programs.
42. From December 2020 through March 2022, [DSS]
requested the mother to submit to 39 drug screens. The
mother did not submit to any of those screens.
43. The mother stated on multiple occasions that she will
not take drug screens as it would not benefit her situation
to do so.
44. The mother admitted on the stand that she did not
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IN RE K.M.C. & M.C.C.
Opinion of the Court
submit to the requested drug screens because she had
smoke[d] marijuana throughout the case and every now
and then used methamphetamine.
45. The mother stated she used marijuana and
methamphetamines because she was not allowed to see her
children.
46. On July 22, 2021, and September 10, 2021, the mother
stated she thinks she would benefit from rehab but does
not need detox.
47. On November 11, 2021, the mother entered a detox
program at ADATC, but left against recommendations on
November 22, 2021.
48. The mother is very forthcoming about the father’s
fentanyl use.
...
75. The parents reside together. The Social Worker has not
been permitted access to the inside of the parent’s home.
The Social Worker scheduled a home visit for February 21,
2021, nobody was home. The home visit for March 3, 2021,
was canceled by the mother as she stated she was sick. On
April 27, 2021, the parents spoke to the Social Worker
outside the home but would not let the Social Worker in the
home. On July 22, 2021, the parents did not permit the
Social Worker to go into the home. On August 16, 2021,
the Social Worker made an unannounced home visit,
nobody answered the door. On August 31, 2021, the
mother canceled the home visit. On January 26, 2022, the
mother cancelled the home visit and rescheduled it to
January 31, 2022. On January 31, 2022, the parents did
not answer the door when the Social Worker arrived for the
home visit. The Social Worker made an unannounced visit
on March 17, 2022[,] and spoke with the mother outside.
The mother agreed to allow the Social Worker to see the
inside of the home on March 21, 2022. On March 21, 2022,
the mother canceled the visit.
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IN RE K.M.C. & M.C.C.
Opinion of the Court
...
77. The mother is not consistent in maintaining contact
with the Social Worker. She responds to messages and
calls selectively. She does not consistently attend
scheduled Child and Family Team Meetings.
78. The mother is not consistent about updating the Social
Worker with an active telephone number. The mother does
have a consistent email address and has maintained the
same psychical [sic] address throughout the case.
79. The mother has signed some of the requested releases
of information, but not all of them. The mother failed to
sign the releases of information for Pardee Urgent Care
and Wolfe, Inc as well as from ADATC detox and
Appalachian Counseling[,] which were specifically ordered
in the order filed on May 6, 2021. The mother stated since
she did not submit to any drug screens, she did not see the
necessity for signing these releases of information.
The trial court concluded grounds existed for the termination of parental rights
under N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2021). The court specifically found and
concluded Mother had: (1) neglected the individuals and there was a probability such
neglect would re-occur, (2) willfully left the juveniles in foster care or placement
outside of the home for more than twelve months without reasonable progress, and,
(3) for the six months prior to the filing of the petition for termination willfully failed
to pay costs for care of the juveniles despite being able to do so.
The court ordered that the parental rights of Mother and Father be terminated
on 20 April 2022. Father did not appeal. Mother filed a timely notice of appeal.
II. Jurisdiction
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IN RE K.M.C. & M.C.C.
Opinion of the Court
Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(2) (2021).
III. Issues
Mother argues the trial court improperly ordered the termination of her
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2021).
She also argues collateral estoppel prevents the trial court from considering
certain facts from the previous two orders adjudicating the juveniles neglected or the
requirements contained in Mother’s prior case plans.
IV. Termination of Parental Rights
“[A]n adjudication of any single ground for terminating a parent’s rights under
N.C.G.S. § 7B-1111(a) will suffice to support a termination order. . . . [I]f this Court
upholds the trial court’s order in which it concludes that a particular ground for
termination exists, then we need not review any remaining grounds.” In re J.S., 374
N.C. 811, 815, 845 S.E.2d 66, 71 (2020) (citations omitted).
A. Standard of Review
This Court reviews a trial court’s decision to terminate parental rights by
examining “whether the court’s findings of fact are supported by clear, cogent[,] and
convincing evidence and whether the findings support the conclusions of law. Any
unchallenged findings are deemed supported by competent evidence and are binding
on appeal. The trial court’s conclusions of law are reviewed de novo.” In re T.B., 380
N.C. 807, 812, 2022-NCSC-43, ¶ 13, 870 S.E.2d 119, 123 (2022) (quoting In re Z.G.J.,
378 N.C. 500, 2021-NCSC-102, ¶ 24, 862 S.E.2d 180 (2021)).
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IN RE K.M.C. & M.C.C.
Opinion of the Court
B. Analysis
A trial court may terminate parental rights for neglect under N.C. Gen. Stat.
§ 7B-1111(a) where the parent has neglected the juvenile within the meaning of N.C.
Gen. Stat. § 7B-101. Id. at 812, ¶ 14, 870 S.E.2d at 123. Our general statutes define
a neglected juvenile as one “whose parent, guardian, custodian, or caretaker does not
provide proper care, supervision, or discipline; . . . or who lives in an environment
injurious to the juvenile’s welfare.” Id.; N.C. Gen. Stat. § 7B-101(15) (2021).
Four statutory bases are available to terminate a parent’s rights under N.C.
Gen. Stat. § 7B-1111(a). Under the second prong, a trial court may terminate
parental rights after:
The 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. No parental rights, however, shall
be terminated for the sole reason that the parents are
unable to care for the juvenile on account of their poverty.
N.C. Gen. Stat. § 7B-1111(a)(2).
The trial court is not strictly limited to the initial twelve months following
separation when reviewing a parent’s progress under § 7B-1111(a)(2), and “evidence
gleaned from the twelve-month period immediately preceding the petition would
provide the trial court with the most recent facts and circumstances exhibiting a
parent’s progress or lack thereof.” In re Pierce, 356 N.C. 68, 74-75, 565 S.E.2d 81, 86
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IN RE K.M.C. & M.C.C.
Opinion of the Court
(2002).
“Leaving a child in foster care or placement outside the home is willful when a
parent has the ability to show reasonable progress, but is unwilling to make the
effort.” In re A.J.P., 375 N.C. 516, 525, 849 S.E.2d 839, 848 (2020) (citation, internal
quotation marks, and alterations omitted).
“[A] respondent’s prolonged inability to improve her situation, despite some
efforts in that direction, will support a finding of willfulness regardless of her good
intentions, and will support a finding of lack of progress during the year preceding
the DSS petition sufficient to warrant termination of parental rights under section
7B-1111(a)(2).” In re J.W., 173 N.C. App. 450, 465–66, 619 S.E.2d 534, 545 (2005)
(citation and internal quotation marks omitted), aff’d per curiam, 360 N.C. 361, 625
S.E.2d 780 (2006).
Our Supreme Court has stated:
Parental compliance with a judicially adopted case plan is
relevant in determining whether grounds for termination
exist pursuant to N.C.G.S. § 7B-1111(a)(2). However, in
order for a respondent’s noncompliance with her case plan
to support the termination of her parental rights, there
must be a nexus between the components of the court-
approved case plan with which the respondent failed to
comply and the conditions which led to the child’s removal
from the parental home.
In re J.S., 374 N.C. at 815-16, 845 S.E.2d at 71 (citation, internal quotation marks,
and alterations omitted).
Our Supreme Court also upheld the termination of parental rights under N.C.
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IN RE K.M.C. & M.C.C.
Opinion of the Court
Gen. Stat. § 7B-1111(a)(2) in In re B.J.H.:
At the time of the 7 February 2020 adjudicatory hearing,
Ben and John had been in an out-of-home placement for
more than twenty-six months. Respondent-father had
belatedly obtained a psychological evaluation but had yet
to pursue the recommended treatment. Regardless of
whether he obtained a substance abuse assessment in June
2018, respondent-father had refused his most recent drug
screen and had tested positive for both amphetamine and
methamphetamine in the preceding drug screen. Although
he had completed parenting classes and consistently
attended visitations with the children, respondent-father
had not made satisfactory progress toward stable
employment or housing suitable for the children. Because
respondent-father had not meaningfully improved the
conditions leading to the children’s removal after more
than two years, we affirm the trial court’s adjudication as
sufficiently supported by the evidence contained in the
record. Having upheld the trial court’s adjudication under
N.C.G.S. § 7B-1111(a)(2), we do not need to address
respondent-father’s arguments pertaining to N.C.G.S.
§ 7B-1111(a)(1).
In re B.J.H., 378 N.C. 524, 555, 2021-NCSC-103, ¶ 65, 862 S.E.2d 784, 806 (2021),
(citing In re J.S., 374 N.C. at 819-21, 845 S.E.2d 66; and In re A.R.A., 373 N.C. 190,
194, 835 S.E.2d 417 (2019)).
The facts before us are similar to those in In re B.J.H. Id. Just like respondent-
father there, Mother “belatedly obtained” several psychological and substance abuse
evaluations, but she was not candid with accurate information and failed to comply
with the recommendations. Id. Mother was recalcitrant. She “stated on multiple
occasions that she will not take drug screens as it would not benefit her situation to
do so” and refused thirty-nine drug screens. She also “admitted on the stand that she
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IN RE K.M.C. & M.C.C.
Opinion of the Court
did not submit to the requested drug screens because she had smoke[d] marijuana
throughout the case and every now and then used methamphetamine.”
Both Kevin and Michael have previously tested positive for
methamphetamines and amphetamines while in Mother’s care. Mother has failed to
cooperate and attend the juvenile’s medical appointments, including failing to take
Michael for multiple scheduled medical visits to monitor and treat his brain cancer.
In sum, Mother has willfully failed to meaningfully improve the conditions leading to
Michael’s and Kevin’s removal and to demonstrate reasonable progress to overcome
those conditions. Id.We need not review any of Mother’s other arguments regarding termination of
parental rights under the first and third prong of N.C. Gen. Stat. § 7B-1111(a),
because another ground for termination exists under N.C. Gen. Stat. § 7B-1111(a)(2).
Id.; In re J.S., 374 N.C. at 815, 845 S.E.2d at 71. Mother’s argument is overruled.
V. Collateral Estoppel
Mother argues collateral estoppel should have barred the trial court from
considering and referencing prior orders and cases involving Mother’s neglect of the
juveniles.
At the hearing, the social worker testified about the circumstances of the first
two petitions and adjudications without objection from Mother. Petitioner also
presented the adjudication orders and permanency planning order as exhibits and
these were admitted as evidence without objection from Mother.
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IN RE K.M.C. & M.C.C.
Opinion of the Court
Mother’s argument is waived, because she failed to properly preserve this issue
by raising the issue or objecting at trial. N.C. R. App. P. 10(a)(1) (explaining that “to
preserve an issue for appellate review, a party must have presented to the trial court
a timely request, objection, or motion, stating the specific grounds for the ruling the
party desired the court to make . . . [and] obtain[ed] a ruling upon the party’s request,
objection, or motion.”); In re D.R.S., 181 N.C. App. 136, 140, 638 S.E.2d 626, 628
(2007) (“Respondent argues next that the proceedings for termination of parental
rights were barred by principles of collateral estoppel and res judicata. However,
respondent raises the defenses of collateral estoppel and res judicata for the first time
on appeal, and thus failed to properly preserve the issue.”). Mother failed to object to
Petitioner’s evidence regarding the two prior adjudications. In addition, Mother
testified about the prior adjudications and presented testimony and evidence
spanning the entire time period of DSS’s involvement, from 2015 to the time of the
hearing. This argument is dismissed.
VI. Conclusion
The trial court properly terminated Mother’s parental rights under N.C. Gen.
Stat. § 7B-1111(a)(2). Mother’s repeated failure to submit to drug screens, reluctance
to submit to psychological and substance abuse evaluations or provide releases, and
her inability to comply with the juveniles’ medical care collectively demonstrate and
support the trial court’s finding of her lack of reasonable progress. In re B.J.H., 378
N.C. at 555, ¶ 65, 862 S.E.2d at 806.
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IN RE K.M.C. & M.C.C.
Opinion of the Court
Mother has consciously and repeatedly chosen a life of crimes, addictions, and
use of dangerous and illegal narcotics, to the degree both young sons tested positive
for these illegal drugs. Her choices, actions, and neglect have repeatedly placed her
sons at gross and substantial risks of harm. While there are no “three strikes” in
termination of parental rights cases, the record before us clearly supports a
conclusion that Mother has been presented with a multitude of opportunities for help
and treatments to overcome her addictions and illegal drug use to be reunited with
her sons. She utterly failed to recognize the need for and take advantage of these
opportunities to overcome her poor and life-threatening choices in preference to
caring for and raising her sons.
Mother’s other arguments regarding termination of parental rights under the
first and third prong of § 7B-1111(a) are moot, because grounds to affirm termination
exists under N.C. Gen. Stat. § 7B-1111(a)(2). Id.; In re J.S., 374 N.C. at 815, 845
S.E.2d at 71.
Mother’s collateral estoppel argument was not preserved and is dismissed.
N.C. R. App. P. 10(a)(1); In re D.R.S., 181 N.C. App. at 140, 638 S.E.2d at 628. The
order terminating Mother’s parental rights is affirmed. It is so ordered.
AFFIRMED.
Chief Judge STROUD and Judge ARROWOOD concur.
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