In re J.W.A.M.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-973
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF: New Hanover County
Nos. 09 JT 226, 11 JT 81
J.W.A.M. & A.N.J.B.
Appeal by Respondent-mother from order entered 21 June 2013
by Judge Melinda H. Crouch in New Hanover County District Court.
Heard in the Court of Appeals 27 March 2014.
Dean W. Hollandsworth for Petitioner New Hanover County
Department of Social Services.
Law Office of Anna S. Lucas, PLLC, by Anna S. Lucas, for
Respondent-mother.
Poyner Spruill LLP, by Danielle Barbour Wilson, for
Guardian ad Litem.
STEPHENS, Judge.
Factual and Procedural Background
Respondent-mother appeals from the district court’s order
terminating her parental rights to the juveniles J.W.A.M.
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(“James”) and A.N.J.B. (“Allison”).1 After careful review, we
affirm.
On 24 March 2011, the New Hanover County Department of
Social Services (“DSS”) took James and Allison into nonsecure
custody and, the following day, filed a petition alleging that
they were neglected and dependent.2 The petition alleged that
Respondent-mother had mental health issues, lacked stable
housing, and engaged in domestic violence with the juveniles’
father. On 20 May 2011, DSS filed a second petition alleging
that James and Allison were neglected, based on a new incident
of domestic violence between Respondent-mother and the father.
The children were placed with a foster parent.
On 18 April 2011, Respondent-mother entered into a Family
Services Agreement with DSS. In a report submitted to the trial
court, DSS stated that Respondent-mother was compliant during
all meetings, actively participated in her parenting classes,
had secured stable housing, was attending therapy, and had
joined a domestic violence therapy group. Respondent-mother had
attended all scheduled visits with the children and met their
foster parent.
1
Pseudonyms are used to protect the identity of the juveniles
and for ease of reading.
2
At the time they were taken into DSS custody, Allison was
nineteen months old and James was three months old.
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On 29 June 2011, Respondent-mother stipulated to the
allegations of neglect and dependency contained in the original
petition, and DSS voluntarily dismissed the second petition. In
an order entered on 20 July 2011, the trial court adjudicated
the juveniles neglected and dependent.
In June 2012, James and Allison were returned to
Respondent-mother for a trial home placement, with DSS retaining
custody of the juveniles. In September 2012, however,
Respondent-mother did not pick up Allison from her bus stop.
DSS then returned Allison to foster care because Respondent-
mother was not reachable by telephone. After eventually
contacting Respondent-mother, DSS learned that James was not
staying with her, and Respondent-mother would not reveal his
whereabouts. DSS eventually learned that James was staying with
an aunt whose parental rights had previously been terminated.
Based on these events, DSS ended the trial home placement and
placed the juveniles in foster care. On 19 October 2012, the
trial court entered an order ceasing reunification efforts with
Respondent-mother.
On 28 November 2012, DSS filed a petition to terminate both
parents’ parental rights to the juveniles. As to Respondent-
mother, DSS alleged the following grounds for termination:
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neglect, failure to make reasonable progress, and dependency.
See N.C. Gen. Stat § 7B-1111(a)(1), (2), (6) (2013). The trial
court conducted a termination of parental rights hearing on 18
and 29 April 2013. In an order entered on 21 June 2013, the
court determined the existence of all three grounds alleged
against Respondent-mother. At disposition, the trial court
concluded that it was in the juveniles’ best interests to
terminate the parental rights of Respondent-mother. Respondent-
mother appeals.3
Discussion
In her three arguments on appeal, Respondent-mother
challenges the trial court’s determination that each ground for
termination of her parental rights existed. A trial court may
terminate parental rights upon a finding of one of the grounds
enumerated in the termination statute. N.C. Gen. Stat. § 7B-
1111(a). Thus, if this Court determines that the findings of
fact support the trial court’s determination of any one ground
for termination, we need not review the other challenged
grounds. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d
421, 426 (2003). We review the trial court’s termination order
to determine “whether the trial court’s findings of fact were
3
The trial court also terminated the parental rights of the
juveniles’ father, but he does not appeal.
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based on clear, cogent, and convincing evidence, and whether
those findings of fact support a conclusion that parental
termination should occur[.]” In re Oghenekevebe, 123 N.C. App.
434, 435-36, 473 S.E.2d 393, 395 (1996) (citation omitted).
Because we conclude that the trial court’s findings of fact
are sufficient to support dependency as a ground for
termination, we do not consider the other grounds for
termination found by the trial court. See In re Humphrey, 156
N.C. App. at 540, 577 S.E.2d at 426.
Our General Statutes define dependency as a ground for
termination as follows:
[T]he 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
[section] 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.
N.C. Gen. Stat. § 7B-1111(a)(6). In determining whether a
juvenile is dependent, the trial court is required to “address
both[:] (1) the parent’s ability to provide care or
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supervision, and (2) the availability to the parent of
alternative child care arrangements.” In re P.M., 169 N.C. App.
423, 427, 610 S.E.2d 403, 406 (2005).
The trial court’s finding of fact 14 addresses dependency
as a ground for termination:
The parents are incapable of providing for
the proper care and supervision of the
children due to mental health conditions,
and these children are dependent children
within the meaning of N.C.G.S. § 7B-101, and
there is a reasonable probability that such
incapability will continue for the
foreseeable future. . . . The mother
submitted to a psychological evaluation
dated November 28, 2012 performed by Dr. Len
Lecci and to which he testified at the trial
of this matter and was admitted into
evidence. She was found to have a primary
diagnosis of Personality Disorder, Not
Otherwise Specified with antisocial and
borderline features along with extremely low
to borderline intellectual functioning with
a full scale IQ of 72 which places her in
the 3rd percentile, scoring below 97% of the
general population. Her insight into any
psychological issues that she is
experiencing is poor and any progress that
she may make would require years to
accomplish, even with full cooperation on
her part with medication compliance and
consistent and meaningful therapeutic
intervention. Her behavior throughout this
case makes this an improbable outcome.
Additionally, there were no viable
alternative child care arrangements, as the
mother’s relatives were eliminated by a
termination of parental rights and the
father’s relatives were ruled out early in
the case and no other viable options for
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care were advanced prior to the filing of
the termination of parental rights petition.
Respondent-mother has failed to specifically challenge this
finding of fact as lacking in evidentiary support. Therefore,
it is presumed to be supported by competent evidence and is
binding on appeal. See In re M.D., 200 N.C. App. 35, 43, 682
S.E.2d 780, 785 (2009).
Instead, Respondent-mother argues that the evidence was
insufficient to establish dependency as a ground for
termination. As to the first prong of this ground, she argues
that Dr. Lecci’s evaluation is insufficient because (1) it was
conducted only after reunification efforts were ceased; and (2)
Dr. Lecci did not state that Respondent-mother was “incapable”
of parenting, but only that it would be a challenge for her.
Respondent-mother also points to her trial placement as evidence
that she had the ability to care for her children and had
addressed her mental health issues.
We are not persuaded by Respondent-mother’s arguments.
While Dr. Lecci was not of the opinion that someone with
Respondent-mother’s cognitive functioning is categorically
unable to parent, he explained the challenges such an individual
would face with respect to parenting:
She does not have extensive cognitive
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abilities to rely on to come up with novel
adaptive solutions, I think would be a fair
way to say that. It does not mean that her
score’s so low that she can’t parent, but it
does mean that her cognitive abilities are
not going to be really a resource for her to
rely on. So if she’s going to be effective,
it’s because she has learned and practiced
parenting techniques very well and can
implement it; in other words, rote learning.
This is not someone who’s going to be able
to pull stuff off [on] the fly, that’s going
to be adaptive and effective, because she
doesn’t really have the decision-making
abilities to do that.
When asked whether intensive in-home services might help someone
with Respondent-mother’s cognitive ability learn how to parent,
Dr. Lecci answered in the affirmative, but gave the following
qualification:
And I think over a long period of time, it
could be. Again, the key when you have a
little lower cognitive functioning
individual is rote learning, so kind of
seeing it and doing it over and over again.
Now, that’s just referring to the cognitive
scores here. As I said, I think there may
be some personality aspects that make — so a
very cooperative, willing learner with this
IQ, I think, could acquire those skills with
repeated exposure.
Now, if you factor in that someone might not
be cooperative, that makes it a little
harder. . . . I’m not sure if she would
have that ability to do that unless she was
engaged.
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Dr. Lecci further explained that Respondent-mother’s personality
hinders her ability to take advantage of such services:
Really, the thing that [Respondent-mother]
would benefit most from is enlisting
resources, resources of the people around
her, resources therapeutic just in general,
and essentially getting help. And because
of her personality style, which is really to
come across as kind of abrasive and to kind
of push people off, it limits her using
those resources or getting those resources.
So in a sense, she’s kind of fighting
against herself. I mean, that’s what makes
this a little more complicated, is rather
than engaging in a style in which you
maximize the resources and draw resources to
you, she pushes them away, but she needs
them, but she may not realize she needs
them.
The trial court accepted Dr. Lecci’s opinion, finding that
Respondent-mother’s ability to parent would “require years to
accomplish, even with full cooperation on her part with
medication compliance and consistent and meaningful therapeutic
intervention. Her behavior throughout this case makes this an
improbable outcome.” Despite Respondent-mother’s argument to
the contrary, this finding of fact supports the conclusion that
Respondent-mother is incapable of providing proper care and
supervision for her children.
Respondent-mother’s remaining arguments as to the first
prong of dependency are equally unavailing. The timing of Dr.
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Lecci’s evaluation is of no consequence to the determination of
whether termination of Respondent-mother’s parental rights was
justified based on dependency, and Respondent-mother cites no
legal authority for her argument to the contrary. Nor does the
trial home placement negate the trial court’s finding as to
dependency. Indeed, testimony about Respondent-mother’s trial
home placement lends credence to Dr. Lecci’s observations. A
counselor testified that, during the trial placement,
Respondent-mother seemed “annoyed” by the presence of DSS
personnel providing services. A DSS social worker testified
that Respondent-mother allowed a woman to live in her home who
had previously lost custody of her own children. Respondent-
mother was defensive about DSS having any input about who might
live in the family home with her children. On one occasion, DSS
discovered an unidentified male in the mother’s bed and, on
another occasion, Respondent-mother failed to take the children
to a doctor in a timely fashion. On 17 September 2012,
Respondent-mother failed to meet her older child when the child
was dropped off by the bus. The older child was returned to
foster care. Contrary to Respondent-mother’s contention that
the trial placement was successful, this evidence supports the
trial court’s determination that Respondent-mother is incapable
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of providing for the proper care and supervision of the
children.
Respondent-mother also challenges the second prong of the
dependency analysis. She argues that the conclusion she lacked
an alternative child care arrangement is not supported by the
evidence because Respondent-mother proposed her aunt as a
placement. Again, we are not persuaded. Respondent-mother did
not propose her aunt as a placement until the termination of
parental rights proceeding. “Our courts have . . . consistently
held that in order for a parent to have an appropriate
alternative child care arrangement, the parent must have taken
some action to identify viable alternatives.” In re L.H., 210
N.C. App. 355, 364, 708 S.E.2d 191, 197 (2011). Here,
Respondent-mother did not make any effort to identify an
alternative placement until her parental rights were in
jeopardy. Such action is insufficient to constitute making an
appropriate alternative child care arrangement. See id. at 364-
66, 708 S.E.2d at 197-98; In re D.J.D., 171 N.C. App. 230, 239,
615 S.E.2d 26, 32 (2005). Therefore, the court did not err in
finding that Respondent-mother lacked an alternative child care
arrangement.
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In sum, we conclude that finding of fact 14 is sufficient
to establish that Respondent-mother is currently incapable of
providing for the proper care and supervision of Allison and
James, there is a reasonable probability that such incapability
will continue for the foreseeable future, and Respondent-mother
lacks an appropriate alternative child care arrangement.
Accordingly, the trial court was justified in terminating
Respondent-mother’s parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(6). The termination order is
AFFIRMED.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).