In re: H.N.D. & L.N.A-D.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-958
Filed: 16 April 2019
Cumberland County, Nos. 14-JA-68, 14-JT-68, 15-JA-117, 15-JT-117
IN THE MATTER OF H.N.D. & L.N.A-D.
Appeal by Respondent-Appellant Mother from orders entered 28 March 2017
and 27 June 2018 by Judge Cheri Siler-Mack in Cumberland County District Court.
Heard in the Court of Appeals 27 February 2019.
Elizabeth Kennedy-Gurnee for Petitioner-Appellee Cumberland County
Department of Social Services.
Miller & Audino, LLP, by Jeffrey L. Miller, for Respondent-Appellant.
Stephen M. Schoeberle for Guardian ad Litem.
COLLINS, Judge.
Respondent-Appellant Mother (Mother) appeals from orders ceasing
reunification efforts with and terminating her parental rights to her minor children
L.N.A-D. (Lee) and H.N.D. (Hank)1 (collectively, the Children). She contends that
the trial court erred by making various findings of fact and conclusions of law in both
orders. We affirm in part and dismiss in part.
I. Background
1 Pseudonyms are used to protect the minors’ identities.
IN RE H.N.D. & L.N.A-D.
Opinion of the Court
On 24 February 2014, Petitioner-Appellee Cumberland County Department of
Social Services (“DSS”) filed a juvenile petition alleging that Lee was neglected and
dependent. The DSS petition alleged the following: (1) Mother had a history of
domestic violence with Lee’s father Jerry Dennings; (2) Mother and Dennings had a
physical altercation on or about 27 December 2013 in which Dennings hit Mother in
Lee’s presence and forced her out of the house threatening to kill her if she took Lee,
after which Mother left Lee with Dennings; (3) Mother stated that she attempted to
retrieve Lee from the house on 30 December 2013, but could not do so because
Dennings fired a gun at her; (4) Dennings was involved in a physical altercation with
another woman involving a gun in Lee’s presence on 17 February 2014; (5) the police
came to Dennings’ house on 17 February 2014, Dennings fled as a result leaving Lee
unsupervised, and Mother retrieved Lee the same day; (6) starting on 17 February
2014, Mother told social workers she had moved with Lee into the house of another
man with whom she had children, and with whom she had a similar history of
domestic violence, including multiple physical altercations in the presence of
Mother’s children.
DSS obtained nonsecure custody of Lee on 24 February 2014. On 5 May 2014,
pursuant to an agreement between DSS and Mother, the trial court adjudicated Lee
dependent because of domestic violence issues, and on 26 June 2014 a disposition
order was entered. On 18 November 2014, an initial permanency planning hearing
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Opinion of the Court
took place, and the trial court established a plan of reunification with Mother. In its
permanency planning order, the trial court found that Mother and Dennings
continued to reside together as a couple and that they had not appropriately
addressed their domestic violence issues. The trial court thus concluded that it was
not possible for Lee to return to his parents’ custody because the conditions which
had led to his removal had not yet been alleviated. Subsequent permanency planning
orders continued with a plan of reunification.
Following Hank’s birth on 3 April 2015, DSS filed a petition alleging that Hank
was neglected and dependent. The 17 April 2015 petition described the findings from
the prior order adjudicating Lee dependent, and alleged continuing issues between
Mother and Dennings, including a 17 April 2015 argument in which Dennings
threatened to break Mother’s neck. DSS obtained nonsecure custody of Hank on 17
April 2015. At a 23 September 2015 hearing, DSS and Mother stipulated to Hank’s
dependent status because of domestic violence issues. On 24 May 2014, the trial court
entered an adjudication and disposition order adjudicating Hank dependent.
By written order entered 24 March 2017, the trial court ordered the primary
permanent plans for both Lee and Hank to be adoption, and no longer reunification
with Mother. In so doing, the trial court found a “long and enduring” history of
domestic violence between Mother and Dennings, including an incident in August
2016 in which Dennings was arrested for assaulting Mother with a deadly weapon
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Opinion of the Court
and Mother sought a restraining order against Dennings. The orders were entered
on 28 March 2017, and Mother timely preserved her right to appeal them on 30 March
2017. Subsequent permanency planning orders continued with the plan of adoption.
On 19 September 2017, DSS filed a petition to terminate Mother’s rights to the
Children. Hearings took place in February and March 2017, after which the trial
court entered an order terminating Mother’s parental rights on 27 June 2018. Mother
timely noticed her appeal of the permanency planning order ceasing reunification
efforts and the order terminating her parental rights on 18 July 2018.
II. Appellate Jurisdiction
This Court has jurisdiction to hear Mother’s appeal under N.C. Gen. Stat. §
7B-1001(a)(5) (2017)2 and Mother is a proper party under N.C. Gen. Stat. § 7B-
1002(4) (2017).
III. Issues on Appeal
Mother raised the following issues on appeal: (1) whether the trial court erred
in ceasing reunification efforts with Mother; and (2) whether the trial court erred in
terminating Mother’s parental rights. Because we conclude that the trial court did
not err regarding the termination of parental rights, a conclusion which renders
2 N.C. Gen. Stat. § 7B-1001 was amended effective 1 January 2019 such that appeals involving
orders terminating parental rights made after that date now lie directly to our Supreme Court. 2017
N.C. Sess. Laws ch. 41, § 8.(a); compare N.C. Gen. Stat. § 7B-1001(a) (2017) (jurisdiction with Court
of Appeals prior to 1 January 2019), with N.C. Gen. Stat. § 7B-1001(a1) (2017) (jurisdiction with
Supreme Court from 1 January 2019 onward). Since Mother’s appeal was noticed prior to 1 January
2019, we have jurisdiction to hear Mother’s appeal.
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IN RE H.N.D. & L.N.A-D.
Opinion of the Court
Mother’s appeal of the cessation of reunification efforts moot and obviates analysis
thereof, we will address the termination of parental rights first.
IV. Analysis
a. Order Terminating Parental Rights
A termination-of-parental-rights proceeding is a two-step process. In re
D.A.H.-C., 227 N.C. App. 489, 493, 742 S.E.2d 836, 839 (2013). In the initial
adjudication phase, the petitioner has the burden to “show by clear, cogent and
convincing evidence that a statutory ground to terminate exists” under N.C. Gen.
Stat. § 7B-1111 (2017). Id. (citation omitted). If the petitioner meets its evidentiary
burden with respect to a statutory ground and the trial court concludes that the
parent’s rights may be terminated, then the matter proceeds to the disposition phase,
at which the trial court determines whether termination is in 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). If the trial
court so determines, it may terminate the parent’s rights in its discretion. In re
Howell, 161 N.C. App. 650, 656, 589 S.E.2d 157, 161 (2003).
In reviewing a trial court’s order to terminate parental rights, this Court must
first determine, with respect to the adjudication phase, whether the “findings of fact
are supported by clear, cogent and convincing evidence[.]” In re S.N., 194 N.C. App.
142, 145-46, 669 S.E.2d 55, 58 (2008) (citation omitted). “Clear, cogent and
convincing describes an evidentiary standard stricter than a preponderance of the
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Opinion of the Court
evidence, but less stringent than proof beyond a reasonable doubt,” and requires
“evidence which should fully convince.” In re Mills, 152 N.C. App. 1, 13, 567 S.E.2d
166, 173 (2002) (citations omitted). If satisfied that the record contains clear, cogent,
and convincing evidence supporting the findings of fact, the Court must then
determine whether the findings of fact support the trial court’s conclusions of law.
S.N., 194 N.C. App. at 146, 669 S.E.2d at 58-59. This Court reviews the trial court’s
legal conclusions de novo. Id. Finally, with respect to the disposition phase, this
Court reviews a trial court’s decision that termination is in the best interests of the
child for abuse of discretion, and will reverse only where the trial court’s decision is
“manifestly unsupported by reason.” Id. (quoting Clark v. Clark, 301 N.C. 123, 129,
271 S.E.2d 58, 63 (1980)).
Our analysis of the order terminating Mother’s rights is limited to whether the
trial court erred in the adjudication phase, by either (1) making findings of fact
unsupported by clear, cogent, and convincing evidence, or (2) by erroneously
concluding that N.C. Gen. Stat. § 7B-1111 provides grounds to terminate Mother’s
rights to the Children. Mother does not argue that the trial court erred in the
disposition phase, i.e., in deciding that termination of her rights was in the best
interests of the Children, and as such that issue is not before us.
In its order, the trial court concluded that the following five separate grounds
existed to terminate Mother’s rights: (1) neglect, N.C. Gen. Stat. § 7B-1111(a)(1); (2)
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Opinion of the Court
failure to make reasonable progress, N.C. Gen. Stat. § 7B-1111(a)(2); (3) failure to
pay for the Children’s care, N.C. Gen. Stat. § 7B-1111(a)(3); (4) dependency, N.C. Gen.
Stat. § 7B-1111(a)(6); and (5) abandonment, N.C. Gen. Stat. § 7B-1111(a)(7). A
determination that any of the grounds existed is sufficient to affirm. T.D.P., 164 N.C.
App. at 290-91, 595 S.E.2d at 738.
The trial court concluded that grounds existed to terminate Mother’s rights
under N.C. Gen. Stat. § 7B-1111(a)(6), which sets forth that a parent’s rights to her
child may be terminated if “the parent is incapable of providing for the proper care
and supervision of the juvenile, such that the juvenile is a dependent juvenile within
the meaning of [N.C. Gen. Stat. §] 7B-101, and that there is a reasonable probability
that such incapability will continue for the foreseeable future.” N.C. Gen. Stat. § 7B-
1111(a)(6).
The trial court made the following pertinent and specific findings of fact
underpinning its conclusion that N.C. Gen. Stat. § 7B-1111(a)(6) is applicable in this
case:
65. The juveniles are dependent as defined by N.C. Gen.
Stat. § 7B-101(9) in that the Respondent Mother does not
have an ability to provide care or supervision to the
juveniles based on her unwillingness to remain
independent from the Respondent Father, as well as her
issues with domestic violence, instability, and untreated
mental health issues. Additionally, the Respondent Father
does not have an ability to provide care of supervision for
the juveniles based on his untreated mental health issues
that result in explosive anger outbursts, substance abuse
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Opinion of the Court
issues, and issues of domestic violence.
66. The Court finds that these causes or conditions prevent
the Respondents from having the ability to parent in that
both the Respondent Mother and the Respondent Father
continue to minimalize the seriousness of the domestic
violence between them, as well as the Respondent Father’s
failure to acknowledge any issues with substance abuse.
67. The Court accepted as evidence the previously
completed examinations from the underlying files wherein
the Respondents were examined by a psychiatrist,
physician, public or private agency or any other expert to
ascertain the parent’s ability to care for the juveniles
resulting in the Respondent Father’s Comprehensive
Mental Health Assessment/Parenting Evaluation
submitted to the Court as Cumberland County Department
of Social Services Exhibit #13, and the Respondent
Mother’s Comprehensive Mental Health
Assessment/Parenting Evaluation submitted to the Court
as Cumberland County Department of Social Services
Exhibit #12. The Court finds, based on these reports, the
following:
a. In 2014, the Respondent Father completed a
Comprehensive Mental Health Assessment and Parenting
Evaluation as ordered by the Court. It was noted that the
Respondent Father has a significant history of mental
health issues, substance abuse, and legal problems. He
was previously diagnosed by the Haymount Institute with
Mood Disorder NOS, Alcohol Abuse, Nicotine Dependence,
Cannabis Dependence, Opioid Dependence, Amphetamine
(Ecstasy) Dependence, Bipolar Disorder, Post Traumatic
Stress Disorder, and Intermittent Explosive Disorder. His
current diagnosis included Adjustment Disorder with
mixed anxiety and depressed mood and Cannabis Use
Disorder-mild. It was recommended that the Respondent
Father reengage in mental health treatment to address his
depressive and anxious symptoms, engage in individual
therapy to address coping skills and anger management,
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IN RE H.N.D. & L.N.A-D.
Opinion of the Court
continue with substance abuse counseling and treatment
to address triggers that could lead him to use again, engage
in couples’ counseling to address the issues of violence and
power and control evident in his relationships, and see a
psychiatrist for medication management if the therapist
believes medication management would be helpful. The
Court finds that the Respondent Father did not engage in
the recommended services.
b. In 2014, the Respondent Mother completed a
Comprehensive Mental Health Assessment and Parenting
Evaluation as ordered by the Court. During the evaluation,
the assessor noted that the Respondent Mother attempted
to present herself in a favorable manner, which invalidated
the results. The Respondent Mother appeared to minimize
her problems, and there were discrepancies between the
information that the Respondent Mother provided and the
Respondent Mother’s collateral records. The Respondent
Mother did not report any symptoms that met the criteria
for a mental health diagnosis; however, the tests results
were invalid and suggested she may exhibit some signs of
hypervigilance. The assessor also noted as part of her
evaluation that the Respondent Mother was residing with
the Respondent Father Dennings and that their
relationship was fraught with domestic violence. It was
recommended that the Respondent Mother complete
family counseling with her children, complete couples’
counseling with the Respondent Father to address their
dynamic of domestic violence, and that she participate in
individual counseling to address barriers to having healthy
relationships. The Court finds that the Respondent
Mother did not engage in the recommended services,
especially as it pertains to the couples counseling needed
to address the dynamic of domestic violence and she quit
individual counseling before her therapist released her.
68. The Court finds, based on the above mental health
assessments and the willful failure of the Respondents to
engage in the recommended services, that the Respondents
are currently incapable of providing for the proper care and
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Opinion of the Court
supervision for the juveniles and that there is a reasonable
probability that such incapability will continue for the
foreseeable future due to the lack of completion of services
and the repetition of the domestic violence pattern seen in
this matter, particularly with respect to the August 2016
incident.
69. The Court finds that Respondent Parents lack an
appropriate alternative child care arrangement in that no
kin or relative has been appropriate or given by the
Respondents throughout the pendency of the case.
Based upon these findings, the trial court concluded that Mother’s rights were
subject to termination under N.C. Gen. Stat. § 7B-1111(a)(6).
There is clear, cogent, and convincing record evidence to support these findings
of fact. In his testimony before the trial court, Dennings admitted to (1) being
diagnosed with explosive disorder and (2) using drugs a week before the hearing and
failing to complete substance abuse counseling. The record also contains evidence
that Dennings was charged with criminal child neglect in 2014 for a physical
altercation with a woman other than Mother that involved a gun and took place in
Lee’s presence. Regarding the history of domestic violence between Mother and
Dennings, the record contains: (1) evidence that Mother told a social worker that
Dennings had threatened to “break her face[,]” threatened to kill her, and
subsequently shot a gun at her in 2013; (2) an Incident Report from the Fayetteville
Police Department describing the August 2016 incident for which Dennings was
arrested for assault with a deadly weapon because he “pistol whipped [Mother] with
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Opinion of the Court
his handgun[,]” and noting that Mother was hospitalized as a result and initially
sought to press charges against Dennings for the assault; and (3) the Domestic
Violence Impact Statement filled out by Mother on the day of the August 2016
incident, in which she describes being choked by Dennings both in an earlier incident
in 2013 and in the August 2016 incident in which Dennings allegedly pistol-whipped
her. The record also contains evidence that Mother conceded that the Children were
dependent in the meaning of N.C. Gen. Stat. § 7B-101 based upon the dynamic of
domestic violence between her and Dennings. In its 5 May 2014 order adjudicating
Lee dependent, the trial court noted that Mother had stipulated with DSS that she
was “unable to provide for the care, control and supervision of” Lee, and stipulated
that Lee was dependent “due to domestic violence,” including the December 2013
incident where Mother and Dennings had a physical altercation in Lee’s presence.
Additionally, in an executed Stipulation Agreement dated 9 June 2015 between
Mother, DSS, and Hank’s guardian ad litem, Mother agreed to Hank’s dependency
adjudication based upon the fact that she and Dennings “were unable to provide for
the care or supervision of the juvenile” because of “[d]omestic violence,” and also
expressly agreed to the incorporation of certain allegations from the relevant petition
as factual bases for the order adjudicating Hank’s dependency, including (1) Mother’s
“history of domestic violence with . . . Dennings,” (2) that Mother had engaged in a
physical altercation with Dennings in December 2013 while Lee was in their care,
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and (3) that Mother had not substantially completed services ordered by the court.
We thus determine that the trial court’s findings regarding Dennings’ issues, the
existing pattern of domestic violence between Mother and Dennings, and the
Children’s resulting dependency are each supported by clear, cogent, and convincing
evidence in the record.
The record also contains clear, cogent, and convincing evidence that Mother
was, is, and will likely remain unwilling to cut Dennings out of her and the Children’s
lives, despite their troubled history together. Before the trial court, Mother testified
that she did not follow through with pressing charges against Dennings for the
August 2016 incident because it would interfere with her work. Mother also testified
that: (1) she facilitated contact between Dennings and the Children during one of her
visits with the Children in January 2017, despite having knowledge that the trial
court had ordered Dennings was to have no contact with the Children at the time; (2)
she had seen Dennings socially without the Children as recently as February 2018;
and (3) she intends to have contact with Dennings going forward “when it’s involving
the kids and stuff[.]”
Mother is correct that she and Dennings were never ordered not to have
contact with each other. But whether Mother was legally required to stay away from
Dennings is not a question before us today. A question that is before us today is
whether Mother is incapable of providing for the proper care and supervision of her
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Opinion of the Court
children, and if so, whether Mother’s incapability is reasonably probable to continue
into the foreseeable future. N.C. Gen. Stat. § 7B-1111(a)(6). Despite the fact that
Mother was and remains free to maintain a relationship with Dennings, Mother’s
stated intent to keep Dennings in her life—and importantly, to keep Dennings in the
Children’s lives—in spite of the enduring pattern of violence Mother has suffered at
Dennings’ hands3 is clear, cogent, and convincing evidence that Mother is incapable
of providing for the proper care and supervision of the Children, such that the
Children are dependent in the meaning of N.C. Gen. Stat. § 7B-101 (2017), and that
there is a reasonable probability that the incapability will continue for the foreseeable
future. N.C. Gen. Stat. § 7B-1111(a)(6). We accordingly conclude that the trial court
was authorized to terminate Mother’s rights to the Children pursuant to N.C. Gen.
Stat. § 7B-1111(a)(6), and we affirm the trial court’s decision to do so on that basis.
Because we affirm the trial court’s termination of Mother’s parental rights
under N.C. Gen. Stat. § 7B-1111(a)(6), we need not address the other grounds upon
which termination was based. T.D.P., 164 N.C. App. at 290-91, 595 S.E.2d at 738.
b. Order Ceasing Reunification
3 Whether Mother “was the victim, and not the perpetrator or aggressor” in her history of
violence with Dennings is of no moment. In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007)
(“The purpose of the adjudication and disposition proceedings should not be morphed on appeal into a
question of culpability regarding the conduct of an individual parent. The question this Court must
look at on review is whether the court made the proper determination in making findings and
conclusions as to the status of the juvenile.”).
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Opinion of the Court
Mother also contends that the trial court erred in ceasing reunification efforts
with her in its 26 October 2016 order.
In In re V.L.B., 164 N.C. App. 743, 596 S.E.2d 896 (2004), this Court held that
a mother’s appeal from a permanency planning order ceasing reunification efforts
with her was rendered moot by the trial court’s subsequent order terminating her
parental rights. Id. at 745, 596 S.E.2d at 897. The In re V.L.B. Court so held because
the trial court “made independent findings and conclusions that d[id] not rely on the
permanency planning order” in the order terminating the mother’s parental rights
after it heard the testimony of witnesses and admitted the underlying case file into
evidence. Id.
The trial court here followed the same course. The trial court specifically found
in its order ceasing reunification efforts that “termination of parental rights should
not be pursued” at the time of that order. Months later, after taking significant
additional testimony and admitting the case file into evidence, the trial court made
extensive findings of fact and conclusions of law not found in the order ceasing
reunification efforts, and terminated Mother’s parental rights. Notably, these
included findings regarding then-current conditions leading the trial court to
conclude that N.C. Gen. Stat. § 7B-1111(a)(6) was applicable at that time.
Since we conclude that the trial court did not err in terminating Mother’s
parental rights, and since, like in In re V.L.B., the order terminating Mother’s
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parental rights made findings of fact and conclusions of law independent of the order
ceasing reunification efforts, we conclude that Mother’s appeal of the order ceasing
reunification efforts with her has been rendered moot.
V. Conclusion
Because we conclude that the trial court’s findings of fact are supported by
clear, cogent, and convincing evidence in the record, that the findings of fact support
the trial court’s conclusions of law, and because Mother has not challenged the trial
court’s determination that termination of Mother’s rights is in the best interests of
the Children, we hold that the trial court did not err in terminating Mother’s parental
rights. We further hold that the question of whether the trial court erred in ceasing
reunification efforts was rendered moot by the proper termination order.
We accordingly affirm the trial court’s order terminating Mother’s parental
rights and dismiss Mother’s appeal of the permanency planning order ceasing
reunification efforts.
AFFIRMED IN PART AND DISMISSED IN PART.
Judges DILLON and INMAN concur.
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