An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1300
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
New Hanover County
Nos. 11 JT 73-75
A.R.S., E.D.S., M.S.S.
Appeal by respondent from order entered 13 September 2013
by Judge J.H. Corpening, II in New Hanover County District
Court. Heard in the Court of Appeals 28 April 2014.
Regina Floyd-Davis for petitioner-appellee New Hanover
County Department of Social Services.
Parker Poe Adams & Bernstein LLP, by Deborah L. Edney and
Sarah Fulton Hutchins, for guardian ad litem.
Assistant Appellate Defender Joyce L. Terres for
respondent-appellant.
HUNTER, Robert C., Judge.
Respondent, the mother of the juveniles A.R.S., E.D.S., and
M.S.S. (“Amy, Emily, and Michael”)1, appeals from an order
1
The pseudonyms “Amy, Emily, and Michael” are used throughout
this opinion to protect the juveniles’ privacy and for ease of
reading.
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terminating her parental rights. After careful review, we
affirm.
Background
Respondent and C.S. (“Charles”)2, the father of the
juveniles at issue in this appeal, were married in July 2003.
Prior to her marriage to Charles, respondent had three children,
C.F.H., C.H.W., and P.R.W. (“Cindy, Carl and Peggy”).3 On 18
March 2011, the New Hanover County Department of Social Services
(“DSS”) filed a petition alleging that Amy, Emily, Michael,
Cindy, Carl and Peggy were neglected juveniles. DSS alleged
that respondent and Charles had a “ten year history of domestic
violence, with numerous incidents occurring in the presence of
the children.” DSS recounted that, while the family was living
in Tennessee, Cindy, Carl, Peggy and Amy had been placed in
foster care due to domestic violence. Charles was convicted of
felony child abuse for a physical assault on Carl and had also
physically assaulted Cindy. Respondent was directed by the
2
The pseudonym “Charles” is used throughout this opinion for
ease of reading.
3
The pseudonyms “Cindy, Carl and Peggy” are used throughout this
opinion to protect the juveniles’ privacy and for ease of
reading.
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juvenile court in Tennessee to “choose between [Charles] and the
children.” The juveniles were returned to respondent’s care in
December 2009.
In 2010, respondent moved to New Hanover County in North
Carolina. In October 2010, while pregnant with twins Emily and
Michael, respondent transported Charles to New Hanover County
and paid for his separate lodging. DSS, upon learning of the
previous history of domestic violence, put a safety plan into
effect requiring Charles’s contact with Cindy, Carl and Peggy to
be supervised by someone other than respondent. Charles was
eventually allowed unsupervised contact with his biological
children, Amy, Emily, and Michael. However, DSS later learned
that Charles was having unsupervised contact with Cindy, Carl
and Peggy.
DSS alleged that Cindy, Carl and Peggy were “in fear of
[Charles] and fear for the safety of their mother as well. They
appear depressed and [Cindy] has expressed suicidal ideation.”
DSS claimed that Charles continued to be verbally abusive to all
members of the family and had physically assaulted Cindy. DSS
further alleged that respondent had failed to protect the
children from Charles’s abuse and had chosen to continue her
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relationship with him. Accordingly, the children were removed
from respondent’s custody.
On 13 May 2011, all six juveniles were adjudicated
neglected based on stipulations by respondent and Charles to the
allegations in the petition. The court ordered that custody
remain with DSS. Additionally, the court ordered that Charles
was to have no contact with Cindy, Carl and Peggy, and that
respondent and Charles were to have separate visitations with
Amy, Emily, and Michael.
On 7 November 2011, the court entered a review order in
which it expressed concern regarding respondent’s “dishonesty
with her children” about her relationship with Charles. The
court found that respondent had indicated that she had obtained
separate housing from Charles and had severed the relationship,
but in fact she continued to reside with him until 6 September
2011, at which time she moved to a domestic violence shelter.
Despite moving to the shelter, respondent continued to maintain
a relationship with Charles, while at the same time telling her
children the relationship was over.
Another review hearing was held on 2 May 2012. The trial
court found that DSS received a Child Protective Services report
on 12 January 2012 alleging sexual abuse perpetrated by Charles
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upon Cindy. The allegation was substantiated by DSS, and DSS
substantiated an allegation of neglect as to respondent for
leaving her children with Charles in violation of a safety plan
then in existence. The trial court also found as fact that
respondent and Charles had in fact maintained a relationship
from March of 2011 through 4 February 2012, and that respondent
had not been truthful with the court regarding their continued
contact. The trial court relieved DSS of further reunification
efforts and changed the permanent plan for the juveniles to
custody or guardianship with a relative or court-approved
caretaker.
At a review hearing held on 3 January 2013, respondent
requested that the permanent plan be changed to reunification.
The court noted in its order that on 18 October 2012, Charles
committed suicide. The court expressed its opinion that
Charles’s death was a “significant event, as opposed to a
substantial change in circumstances.” The court continued to be
concerned about respondent’s “failure to prioritize her
children, and poor decision-making. She failed to keep the
children safe in the past, and they are still at risk.” The
court declined to change the permanent plan for the juveniles to
reunification. Following a review hearing on 4 April 2013, the
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court changed the permanent plan for Amy, Emily, and Michael to
adoption.
On 4 June 2013, DSS filed a petition to terminate
respondent’s parental rights to Amy, Emily, and Michael. On 13
September 2013, the trial court entered an order terminating
respondent’s parental rights to Amy, Emily, and Michael after
concluding that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(1) and (2) (2013). Respondent appeals.
Discussion
We first consider respondent’s argument that the trial
court erred by concluding that grounds existed to terminate her
parental rights. We disagree.
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds
for terminating parental rights. A finding of any one of the
separately enumerated grounds is sufficient to support
termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). “The standard of appellate review is whether the
trial court’s findings of fact are supported by clear, cogent,
and convincing evidence and whether the findings of fact support
the conclusions of law.” In re D.J.D., 171 N.C. App. 230, 238,
615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288,
291, 536 S.E.2d 838, 840 (2000), disc. review denied, appeal
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dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001)).
In the instant case, the trial court concluded that grounds
existed to terminate respondent’s parental rights based on
neglect. N.C. Gen. Stat. § 7B-1111(a)(1). “Neglected juvenile”
is defined in N.C. Gen. Stat. § 7B-101(15) 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; or who
is not provided necessary medical care; or
who is not provided necessary remedial care;
or who lives in an environment injurious to
the juvenile’s welfare; or who has been
placed for care or adoption in violation of
law.
N.C. Gen. Stat. § 7B-101(15) (2013). “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). Where, as here, a child has been removed from the
parent’s custody before the termination hearing, and the
petitioner presents evidence of prior neglect, then “[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.” In re Ballard, 311 N.C. 708, 715, 319
S.E.2d 227, 232 (1984). Additionally, the determination of
whether a child is neglected “must of necessity be predictive in
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nature, as the trial court must assess whether there is a
substantial risk of future abuse or neglect of a child based on
the historical facts of the case.” In re McLean, 135 N.C. App.
387, 396, 521 S.E.2d 121, 127 (1999).
Here, the trial court first made substantial findings of
fact concerning the family’s history in Tennessee, which
included: domestic violence perpetrated by respondent and
Charles in front of their children; the removal of respondent’s
children from her custody; entry of an order of protection
prohibiting Charles from having contact with respondent’s
children; respondent’s withdrawing the order of protection;
Charles’s conviction of child abuse and domestic assault; entry
of a “no-contact” order by a Tennessee juvenile court
prohibiting contact between Charles and respondent’s children;
subsequent violation of the no-contact order by Charles; removal
of respondent’s children from her care due to her allowing
contact between her children and Charles; and restoration of
custody to respondent in 2009.
The trial court further found as fact that Charles filed a
motion in Tennessee to lift the no-contact order, “indicating
his intent ‘to move to North Carolina with [respondent] and the
children, to get a residence in North Carolina and to get a job
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in North Carolina.’” The motion was denied, with the exception
that Charles was allowed unsupervised contact only with Amy.
Nevertheless, as found by the court, in October 2010, respondent
transported Charles to North Carolina and they resided together
with the juveniles as a family. The court found that
respondent’s “actions clearly violated the Tennessee Court
Order.” The juveniles were subsequently adjudicated neglected.
The trial court made the following findings concerning
respondent’s actions occurring after the adjudication of
neglect:
17. That approximately three months later
[after the adjudication of neglect], at a
hearing held on 20 July 2011, [respondent]
appeared to be making progress. . . . She
presented to the Court a twelve month lease
. . . for a home located in New Hanover
County, separate and apart from her husband,
[Charles]. She maintained employment, but
had not participated in any parenting
classes.
18. That subsequent to the July hearing,
the Department learned that [respondent] was
not truthful with the Court. She had not
and did not move into the residence
presented via lease, but in fact, maintained
housing with [Charles]. She was dishonest
with [Cindy, Carl and Peggy] about the
continued living arrangements and continued
relationship with [Charles], which led to
continued trust issues for the Juveniles
. . . .
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19. That [respondent] continued to reside
with [Charles] until on or about 06
September 2011, when she moved to the
Domestic Violence Shelter. Thereafter, she
continued to have contact with [Charles].
She was observed at [Charles’s] residence on
two occasions. She continued to deny the
relationship to [Cindy, Carl and Peggy]. At
the review hearing held on 10 October 2011,
[respondent] presented to the Court that she
had secured housing at Greentree Apartments.
She has yet to reside in Greentree
[A]partments, and has not participated in
any parenting classes. She has participated
in family therapy; however, there has been
inconsistent participation in individual
therapy.
. . . .
21. That on or about 17 February 2012,
[Charles] contacted [DSS] and provided
relevant information. [Charles] and
[respondent] had maintained a relationship
from September of 2011 until [Charles] was
incarcerated in February of 2012. [Charles]
was hospitalized in Chapel Hill, North
Carolina, and [respondent] visited him on
several occasions. [Respondent] maintained
telephone contact with [Charles] through use
of [Charles’s] land line, which was unknown
to the Department. [Charles] frequented
[respondent’s] residence during said period,
and met in other places, so as not to alert
the Department. That [respondent] has been
dishonest with the Court, the Department,
the Guardian Ad Litem, and [Cindy, Carl and
Peggy].
. . . .
23. That [Charles] committed suicide on or
about 18 October 2012. Despite having the
children [Cindy, Carl and Peggy] removed
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from Respondent-Mother’s custody due to
their physical abuse by [Charles], and
having been aware of [Charles’s] sexual
abuse of [Cindy], [respondent] presented the
older children with amulets containing
[Charles’s] ashes, which could be worn
around their necks. [Respondent] denies
constructing the amulets, but did in fact
present them to the children.
. . . .
26. That [Charles] untimely demise is
noted; however, [respondent] has continued a
pattern of placing her self-interests ahead
of her children’s best interests for the
past five (5) years. The family’s
involvement with the Tennessee Department of
Children’s Services’ [sic] began in 2008,
and [respondent’s] involvement with [DSS]
has continued since 2010. This pattern is
indicative of a high probability of the
repetition of neglect.
Respondent does not challenge the above findings of fact
and they are binding on appeal. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). Based on these findings, we
conclude that grounds existed pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) to terminate respondent’s parental rights.
Respondent additionally argues that the trial court erred
by concluding that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(2) to terminate her parental rights. However,
because we conclude that grounds existed pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1) to support the trial court’s order, we
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need not address the remaining ground found by the trial court
to support termination. Taylor, 97 N.C. App. at 64, 387 S.E.2d
at 233-34.
Respondent next argues that the trial court abused its
discretion when it concluded that termination of her parental
rights was in the best interests of the juveniles. We disagree.
Once statutory grounds for termination have been
established, the trial court is required to “determine whether
terminating the parent’s rights is in the juvenile’s best
interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). When
determining whether it is in the juvenile’s best interest to
terminate the parent’s rights, the trial court is required to
make written findings regarding the relevant factors enunciated
in N.C. Gen. Stat. § 7B-1110(a). Id. “We review the trial
court’s decision to terminate parental rights for abuse of
discretion.” In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d
599, 602 (2002).
Here, in its dispositional findings, the trial court found
the following facts relating to the factors stated in N.C. Gen.
Stat. § 7B-1110(a):
28. That maternal and paternal relatives
have been considered for placement of the
Juveniles, and it is not in their best
interests to be placed with relatives. The
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Juveniles should remain in this community
wherein they can continue the strong bond
and relationship, which they share with
[Cindy, Carl and Peggy] through visitation.
The children do not have a strong bond with
any of the relatives previously considered
by this Court.
29. That [Amy] has been in her current
placement since April 1, of 2011. She is
five years old, and has been in and out of
home placement for two years and five
months. This is her second time in foster
care since birth. [Emily and Michael] are
two and a half year old twins, have been in
placement together since March of 2011, and
were moved into their current placement with
their sister, [Amy] in April of this year.
[Amy] has a strong bond with the foster
parents, and [Emily and Michael] have
developed a bond in the short time they have
been placed. [Amy, Emily and Michael] have
a strong sibling bond. The Juveniles have a
bond with their mother; however, it has been
diminished by the length of time in out of
home placements. The twins were three (3)
months old when they were removed from
[respondent]. The foster parents have
encouraged and arranged visitations for
[Amy, Michael, Emily, Cindy, Carl and Peggy
and] have indicated their willingness to
continue[] said sibling visitations.
30. That [Amy, Emily and Michael] are young
children, and their current foster parents
would like to adopt all three of them.
Respondent contends that the trial court should have given
greater consideration to placement with the paternal
grandparents. However, such consideration was not required.
See In re M.M., 200 N.C. App. 248, 258, 684 S.E.2d 463, 469-70
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(2009) (“A trial court may, but is not required to, consider the
availability of a relative placement during the dispositional
phase of a hearing to terminate parental rights.”), disc. review
denied, 364 N.C. 241, 698 S.E.2d 401 (2010).
Respondent further contends that the court failed to
consider the impact of unenforceability of an order for sibling
visitation should the juveniles be adopted by their foster
parents. We conclude, however, that the trial court was not
statutorily required to consider the enforceability of post-
adoption sibling visitation. Nevertheless, it is apparent from
the court’s findings that the court considered the importance of
sibling visitation, and concluded that it was likely to occur,
regardless of its legal enforceability.
Conclusion
Based on the court’s dispositional findings of fact, we
conclude that the trial court’s determination that it was in the
juveniles’ best interests to terminate respondent’s parental
rights was not manifestly unsupported by reason. Accordingly,
we affirm.
AFFIRMED.
Judges GEER and McCULLOUGH concur.
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Report per Rule 30(e).
In re A.R.S.
Combined Opinion