In re: M.J.S.M.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-688
Filed: 6 February 2018
Guilford County, No. 16 JT 59
IN THE MATTER OF: M.J.S.M.
Appeal by Respondent-Parents from order entered 18 April 2017 by Judge K.
Michelle Fletcher in Guilford County District Court. Heard in the Court of Appeals
18 January 2018.
Mercedes O. Chut, for petitioner-appellee Guilford County Department of
Health and Human Services.
Batch, Poore & Williams, PC Sydney Batch, for respondent-appellant mother.
Diepenbrock Law Office, by J. Thomas Diepenbrock, for respondent-appellant
father.
K&L Gates LLP, by Hillary Dawe, for guardian ad litem.
HUNTER, JR., Robert N., Judge.
Respondent-Parents appeal from an order terminating their parental rights to
their minor child, M.J.S.M. (“Mary”).1 On appeal, Respondent-Mother argues the
trial court erred in terminating her parental rights on the grounds of neglect, willful
failure to pay a reasonable portion of the cost of Mary’s care, and dependency.
1 The parties stipulated to this pseudonym for the minor child, pursuant to N.C.R. App. P.
3.1(b) (2017).
IN RE: M.J.S.M.
Opinion of the Court
Respondent-Father’s counsel filed a no-merit brief, pursuant to North Carolina Rule
of Appellate Procedure 3.1(d). N.C.R. App. P. 3.1(d) (2017). We affirm.
I. Factual and Procedural Background
On 13 April 2016, petitioner Guilford County Department of Health and
Human Services (“DHHS”) filed a juvenile petition alleging five-month-old Mary to
be a neglected and dependent juvenile. The petition alleged DHHS received a Child
Protective Services (“CPS”) report after Respondent-Father choked, hit, and pushed
on the stomach of Respondent-Mother, while she was pregnant with Mary. As a
result of Respondent-Father’s actions: (1) doctors performed an emergency caesarian
section due to fetal distress; (2) Mary had no heartbeat; and (3) doctors had to
resuscitate Mary for twenty minutes, immediately after she was born.
In late 2015 and early 2016, Respondent-Parents entered into case plans and
agreed Respondent-Father would not have any contact with Respondent-Mother or
Mary. On 13 April 2016, a DHHS social worker made an unannounced visit to
Respondent-Mother’s home and discovered Respondent-Father there. Additionally,
Respondent-Mother “failed to comply with the terms of her treatment plan, including
her failure to enroll in and attend domestic violence education[.]” Respondent-Father
“refused to complete substance abuse counselor or drug screens and has avoided
contact with [the social worker].”
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IN RE: M.J.S.M.
Opinion of the Court
Consequently, DHHS filed the petition and requested nonsecure custody of
Mary “[d]ue to the ongoing substance abuse and domestic violence and the lack of
family resources to provide care and supervision.” On 13 April 2016, the court
granted nonsecure custody of Mary to DHHS.
On 6 May 2016, Respondent-Mother entered into an out-of-home services
agreement with DHHS, replacing her prior case plan. Respondent-Mother agreed to,
inter alia: (1) submit to a psychiatric assessment and comply with any
recommendations thereof; (2) complete domestic violence programs and “not have any
contact with [Respondent-Father]”; (3) maintain safe, stable housing; (4) maintain
stable employment; (5) submit to a substance abuse assessment; and (6) attend other
DHHS programs/courses.
On 15 September 2016, the court held a pre-adjudication, adjudication, and
dispositional hearing. In an order entered 25 October 2016, the court adjudicated
Mary as a neglected and dependent juvenile.2 Respondent-Mother failed to submit
to a psychiatric assessment, maintained contact with Respondent-Father, lived in the
same apartment complex as Respondent-Father, failed to attend multiple
appointments or did not engage in therapy sessions, failed to maintain employment,
and used drugs. Respondent-Father failed to submit to a parenting/psychological
2 Respondent-Mother stipulated to the allegations in the DHHS petition and consented to the
adjudication.
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IN RE: M.J.S.M.
Opinion of the Court
assessment, failed to enroll in domestic violence classes, maintained contact with
Respondent-Mother, and tested positive for marijuana in a drug screen.
The court ordered Respondent-Parents to comply with their case plans and
permitted Respondent-Mother to have supervised visitation with Mary, who
remained in DHHS custody, twice per week. The court did not permit Respondent-
Father to have any contact with Mary. The court set the primary permanent plan as
reunification.
On 20 December 2016, the trial court entered a permanency planning review
order.3 The court found Respondent-Parents showed a “lack of compliance” with their
case plans. The court changed the primary permanent plan to adoption, with a
secondary plan of reunification. The court ordered DHHS to file a termination of
parental rights petition within sixty days. The court also reduced Respondent-
Mother’s visitation to once per week.
On 27 January 2017, DHHS filed a motion seeking to terminate Respondent-
Parents’ parental rights to Mary on the grounds of neglect, willful failure to pay a
reasonable portion of the cost of Mary’s care, and dependency. See N.C. Gen. Stat. §
7B-1111(a)(1), (3), (6) (2015). The court held a hearing for the motion on 20 March
2017.
3
The court entered an amended permanency planning order on 17 January 2017, but this did
not materially change the substance of the order.
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IN RE: M.J.S.M.
Opinion of the Court
On 18 April 2017, the trial court entered an order terminating Respondent-
Mother’s parental rights based upon all three grounds alleged by DHHS and
Respondent-Father’s parental rights based upon neglect and willful failure to pay a
reasonable portion of the cost of Mary’s care. Respondent-Parents entered timely
notices of appeal.
II. Standard of Review
“The standard for 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.”
In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984) (citation omitted). “If
unchallenged on appeal, findings of fact are deemed supported by competent evidence
and are binding upon this Court.” In re A.R.H.B., 186 N.C. App. 211, 214, 651 S.E.2d
247, 251 (2007) (internal quotation marks and citations omitted), appeal dismissed,
362 N.C. 235, 659 S.E.2d 433 (2008).
III. Analysis
A. Respondent-Mother’s Appeal
Respondent-Mother argues the trial court erred by concluding three grounds
existed to terminate her parental rights. We disagree.
Pursuant to N.C. Gen Stat. § 7B-1111(a)(1), “[t]he trial court may terminate
the parental rights to a child upon a finding that the parent has neglected the child.”
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IN RE: M.J.S.M.
Opinion of the Court
In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (citing N.C. Gen.
Stat. § 7B-1111(a)(1)). A neglected juvenile is defined, in relevant part, as “[a]
juvenile who does not receive proper care, supervision, or discipline from the
juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned[.]”
N.C. Gen. Stat. § 7B-101(15) (2015).
“A finding of neglect sufficient to terminate parental rights must be based on
evidence showing neglect at the time of the termination proceeding.” In re Young, 346
N.C. 244, 248, 485 S.E.2d 612, 615 (1997 (citation omitted). However, when, as here,
the child has been removed from her parent’s custody such that it would be impossible
to show the child is currently being neglected by their parent, “a prior adjudication of
neglect may be admitted and considered by the trial court in ruling upon a later
petition to terminate parental rights on the ground of neglect.” In re Ballard, 311
N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).
If a prior adjudication of neglect is considered, “[t]he trial court must also
consider any evidence of changed conditions in light of the evidence of prior neglect
and the probability of a repetition of neglect.” Id. at 715, 319 S.E.2d at 232 (citation
omitted). Thus, where:
there is no evidence of neglect at the time of the
termination proceeding . . . parental rights may
nonetheless be terminated if there is a showing of a past
adjudication of neglect and the trial court finds by clear and
convincing evidence a probability of repetition of neglect if
the juvenile were returned to [his or] her parents.
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IN RE: M.J.S.M.
Opinion of the Court
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted). A
parent’s failure to make progress in completing a case plan is indicative of a likelihood
of future neglect. In re D.M.W., 173 N.C. App. 679, 688-89, 619 S.E.2d 910, 917 (2005),
rev’d per curiam per the dissent, 360 N.C. 583, 635 S.E.2d 50 (2006).
In this case, Respondent-Mother concedes Mary was previously adjudicated a
neglected juvenile. However, she disputes the evidence at the termination hearing
demonstrated a likelihood of future neglect. The trial court made the following
finding, with respect to repetition of neglect:
17. . . . c. There is a likelihood of the repetition of neglect
by [Respondent-Mother], given her history of neglect, her
failure to adequately address the issues that resulted in the
removal of the juvenile (particularly her mental health),
the fact that she continues to minimize the impact of the
domestic violence between herself and the father, the fact
that she was not truthful about contact between herself
and the father since removal of the juvenile, and the fact
that she is currently inconsistent with mental health
medications and therapy.
Respondent-Mother contends this finding is not supported by competent
evidence because she made some progress on various aspects of her case plan.
Specifically, she argues there was evidence she: (1) obtained appropriate housing, (2)
engaged in some domestic violence counseling, and (3) was taking her prescribed
medication for her mental health disorders. While Respondent-Mother is correct she
did not completely fail to work on her case plan, the evidence presented at the
termination hearing shows this work was only sporadic and inadequate.
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IN RE: M.J.S.M.
Opinion of the Court
In its termination order, the trial court made specific findings regarding
Respondent-Mother’s progress on her case plan. These findings reflected, inter alia,
Respondent-Mother: (1) submitted to two psychiatric evaluations, but failed to
comply with their recommendations; (2) did not begin taking medication for her
mental health issues until March 2017; (3) completed only five of twelve sessions in
a domestic violence program; (4) continued to be seen with Respondent-Father and
downplayed his domestic abuse; (5) failed to find housing in a separate apartment
complex from Respondent-Father; (6) failed to adequately furnish her apartment; (7)
failed to complete her parenting classes; and (8) was fired from multiple jobs due to
attendance issues. Moreover, most of the limited progress cited by the trial court in
these findings did not occur until after DHHS filed its termination petition.
Respondent-Mother does not challenge these findings.
The DHHS social worker also offered the following testimony during the
termination hearing with respect to repetition of neglect:
Q Now, would you advise the Court how the respective
parents have contributed to the conditions that led to the
removal of the child?
A Engaging in domestic violence, not addressing the
mental health and substance issues, failing to comply with
the safety plan and services meant to address the risk to
the child.
Q And the conditions that led to removal, do they continue
to exist at this time?
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IN RE: M.J.S.M.
Opinion of the Court
A Yes.
Q And if you would describe the impact that the parents[’]
actions or inactions in this case have had on the juvenile?
...
A The mother’s continued denial of domestic violence, their
continued meeting and minimizing the issues that brought
the child into – into care continue to place the child at risk.
Q So if the -- if the juvenile were to be returned to either
parent today, would the abuse or neglect likely continue or
be repeated?
A Yes. If they can’t admit that there’s a problem, they
can’t change the behavior.
The social worker’s testimony, when considered in conjunction with the court’s
findings regarding Respondent-Mother’s lack of significant progress on her case plan,
provided sufficient support for the trial court’s determination there would be a
probable repetition of neglect if Mary was returned to her care. Accordingly, the trial
court properly terminated Respondent-Mother’s parental rights on the ground of
neglect.
Since we conclude termination on this ground was proper, we need not address
Respondent-Mother’s arguments regarding the remaining grounds found by the trial
court. See In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990) (citation
omitted) (stating a finding of any of the separately enumerated grounds is sufficient
to support termination). The portion of the trial court’s order terminating
Respondent-Mother’s parental rights is affirmed.
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IN RE: M.J.S.M.
Opinion of the Court
B. Respondent-Father’s Appeal
Counsel for Respondent-Father filed a no-merit brief on his behalf, pursuant
to N.C.R. App. P. 3.1(d), stating “[t]he undersigned counsel has conducted a
conscientious and thorough review of the record on appeal. After this review, counsel
concludes that the record contains no issue of merit on which to base an argument for
relief and the appeal would be frivolous.” Counsel asks this Court to conduct an
independent review of the record for possible error. Additionally, counsel
demonstrated he advised Respondent-Father of his right to file written arguments
with this Court and provided him with the documents necessary to do so. Respondent-
Father failed to file his own written arguments.
Consistent with the requirements of Rule 3.1(d), counsel directs our attention
to the issue of whether the ground of neglect was sufficiently supported by the trial
court’s findings of fact. However, counsel acknowledges he cannot make a non-
frivolous argument that Respondent-Father’s parental rights should not be
terminated on the ground of willful failure to pay a reasonable portion of the cost of
Mary’s care. As a result, his argument as to neglect does not provide a meritorious
basis for appeal. See Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34 (citation
omitted).
After careful review, we are unable to find any possible prejudicial error by the
trial court. As acknowledged by Respondent-Father’s counsel, the termination order
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IN RE: M.J.S.M.
Opinion of the Court
includes sufficient findings of fact, supported by clear, cogent, and convincing
evidence, to conclude at least one statutory ground for termination existed. Moreover,
the court made appropriate findings on each of the relevant dispositional factors and
did not abuse its discretion in assessing the child’s best interests. N.C. Gen. Stat. §
7B-1110(a) (2015). Accordingly, we affirm the portion of the trial court’s order
terminating Respondent-Father’s parental rights.
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s order terminating
Respondent-Parents’ parental rights.
AFFIRMED.
Judge DILLON concurs.
Judge MURPHY concurring in part and concurring in the result in part.
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No. COA17-688 – In re M.J.S.M.
MURPHY, Judge, concurring in part and concurring in the result in part.
I concur in the Majority’s opinion as it relates to Respondent-Father, and I
concur in the result as it relates to Respondent-Mother. The Majority correctly states
that “[a] parent’s failure to make progress in completing a case plan is indicative of a
likelihood of future neglect.” However, I do not agree that the Respondent-Mother’s
actions after the initial finding of neglect indicate that she has failed to make
progress. She made significant progress to improve her condition and express her
love for her child, and the findings of fact do not support the conclusion that her
parental rights should be terminated in accordance with N.C.G.S. § 7B-1111(a)(1).
Further, given her limited income, her small payments of child support for Mary were
not unreasonable and grounds do not exist to terminate her parental rights in
accordance with N.C.G.S. § 7B-1111(a)(3).
The findings of fact, however, do support the trial court’s conclusion that
grounds existed to terminate Respondent-Mother’s parental rights in accordance
with N.C.G.S. § 7B-1111(a)(6).
The court may terminate the parental rights upon a finding . . . [t]hat
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 G.S. 7B-101, and that there is a reasonable probability that
such incapability will continue for the foreseeable future. Incapability
under this subdivision may be the result of substance abuse, mental
retardation, mental illness, organic brain syndrome, or any other cause
or condition that renders the parent unable or unavailable to parent the
juvenile and the parent lacks an appropriate alternative child care
arrangement.
IN RE M.J.S.M.
MURPHY, J., concurring in part and concurring in result in part
N.C.G.S.§ 7B-1111(a)(6)(2017).
Respondent-Mother continues to struggle with mental health issues that will not be
corrected in the foreseeable future, and she is incapable of providing for the proper
care and supervision of Mary, a dependent juvenile. She also lacks an alternative
child care arrangement. The trial court’s findings of fact support this conclusion of
law. Therefore, I concur in the result reached by the Majority in affirming the
termination of Respondent-Mother’s parental rights to Mary.
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