IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-146
Filed: 5 July 2017
Guilford County, Nos. 14 JT 380-383, 15 JT 11-12
IN THE MATTER OF:
A.L.L., R.J.M., R.A.M.,
A.O.Z., D.A.M., O.E.J.M.
Appeals by Respondents Father and Mother from an Order to Terminate
Parental Rights entered 14 November 2016 by Judge Betty J. Brown in Guilford
County District Court; appeal by Respondent Father from orders entered 4 June
2015, 17 December 2015 and 3 June 2016 by Judge Angela C. Foster in Guilford
County District Court. Heard in the Court of Appeals 5 June 2017.
Mercedes O. Chut, for petitioner-appellee Guilford County Department of
Health and Human Services.
Lopez Law Firm, by Daniel J. Melo, for guardian ad litem.
Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant father.
Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.
INMAN, Judge.
A North Carolina court properly exercises jurisdiction over children living in
this state and alleged to be abused, neglected or dependent, even if the children were
previously the subject of custody orders and continuing jurisdiction by a foreign state
IN RE A.L.L.
Opinion of the Court
court, once the foreign court enters a facially valid order declining further
jurisdiction.
Respondent-mother (“Mother”) appeals from an order terminating her parental
rights as to her minor children A.L.L. (“Abigail”), R.J.M. (“Riley”), R.A.M. (“Robert”),
A.O.Z. (“Ava”), D.A.M. (“Diana”), and O.E.J.M. (“Oscar”); Respondent-father
(“Father”) appeals the same order terminating his parental rights as to Abigail, Riley,
and Robert1 and seeks certiorari review of three permanency planning orders entered
on 4 June 2015, 17 December 2015, and 3 June 2016 (the “Permanency Orders”).
Mother contends that the trial court erred in finding that the children were
dependent and that Mother had failed to make reasonable progress in correcting the
conditions that led to their removal, and argues the trial court abused its discretion
in determining the termination of parental rights would be in the best interests of
Riley and Robert. Father contends that the trial court lacked subject matter
jurisdiction to terminate his parental rights to Abigail, Riley, and Robert, and, in his
petition for certiorari, contends that the trial court’s permanency planning orders
failed to make the requisite findings of fact to support its adjudication of the children
as neglected and dependent.
After careful review, we affirm.
I. Factual and Procedural History
1 Father is the biological parent of only Riley, Robert, and Abigail; the putative and unknown
fathers of Ava, Diana, and Oscar did not appeal.
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The evidence presented to the trial court tended to show the following:
Mother gave birth to Ava in Detroit, Michigan, on 4 January 2006. In 2007,
Mother began a relationship with Father and, by the end of 2009, they had two
children together, Robert and Riley, also born in Michigan. In the course of the
parents’ relationship, four reports were made to Michigan Child Protective Services
for homelessness, domestic violence, substance abuse, and mental health issues; none
of the reports resulted in intervention by the Michigan agency. Father was convicted
at least three times for domestic violence, including two incidents involving Mother
in 2007 and 2012; he was also convicted of concealed weapon offenses in 2003 and
2010.
Beyond domestic violence against Mother, Father also engaged in
inappropriate physical disciplining of Ava and exposed the older three children to
inappropriate sexual content. In August of 2012, Mother left Father and refused to
allow him further contact with Robert and Riley; her departure rendered her and her
children homeless. The next month, Mother gave birth to Abigail, appellants’ third
child in common, in Michigan.
Shortly after Abigail was born, on 31 October 2012, Mother filed a child support
and custody action against Father as to Riley and Robert in the Circuit Court for
Wayne County, Michigan (the “Michigan Action”). During the pendency of the
Michigan Action and while the children were in Mother’s custody, three more reports
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Opinion of the Court
were made to Michigan Child Protective Services for neglect, physical abuse, and
mental health issues; none of these reports resulted in intervention by the Michigan
agency.
On 16 September 2013, the Michigan court awarded Mother sole legal and
physical custody of Riley and Robert. Shortly after entry of the custody order in the
Michigan Action, Mother fled the state with her four children to escape Father.
Mother and the children settled in Guilford County, North Carolina.
Father filed a motion to modify the custody order in the Michigan Action on 4
October 2013. The Michigan court held an evidentiary hearing on Father’s motion
on 16 April 2014 with Father present and Mother participating by phone. The
Michigan court found that Father had not established grounds to regain custody, but
granted Father supervised visitation rights in Winston-Salem, North Carolina, at his
own expense.
Father never exercised the visitation rights awarded by the Michigan court in
2014. He has not seen Robert or Riley since 2012, when Robert was four and Riley
was three. He has never met Abigail, who is now five.
Shortly after moving to North Carolina, Mother obtained housing assistance
from Petitioner-Appellee Guilford County Department of Health and Human Services
(“DHHS”), which paid her rent for three months. However, Mother was evicted in
the fourth month for her failure to pay rent. Following her eviction, Mother was again
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Opinion of the Court
living in homeless shelters with her children and became pregnant with twins by a
third father in early 2014.
On 20 September 2014, DHHS received two reports concerning Mother,
Abigail, Riley, Robert, and Ava. The reports indicated that Mother had slapped four-
year-old Riley, resulting in charges of misdemeanor assault on a child under the age
of twelve and misdemeanor child abuse. The reports also stated that Mother
threatened to kill herself and her children. A mobile crisis unit evaluated Mother at
the scene of the report. Mother was involuntarily committed to a local hospital for
severe depression and suspected Post Traumatic Stress Disorder (“PTSD”).
Two days later, DHHS filed a petition in Guilford County District Court
alleging that Abigail, Riley, Robert, and Ava were abused, neglected, and dependent
juveniles who should be removed from Mother’s custody. DHHS was granted
nonsecure custody as to all four children. The petition alleged that Mother “used
cruel or grossly inappropriate devices or procedures to modify the behavior of a 4[-
year old] child,” that the children were living in an environment injurious to their
welfare, that Mother could not provide proper care, supervision, or discipline, and
that Mother could not arrange for appropriate alternative care for her children.
Mother was served with the petition on 25 September 2014 in open court
during a hearing for continued nonsecure custody. Although DHHS personnel
undertook diligent efforts prior to the hearing, they were unable to locate and serve
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Opinion of the Court
Father with the petition. An adjudicatory hearing was scheduled for 20 November
2014.
Pending the adjudicatory hearing, Mother and DHHS agreed to a case plan
requiring her to undergo parenting, psychological, psychiatric, and substance abuse
evaluations, to attend domestic violence counseling and parenting classes, and to
secure stable housing. She was permitted visitation contingent upon a
parenting/psychological evaluation and a meeting with DHHS personnel (termed a
“TDM”) consistent with the previously entered nonsecure custody orders. Consistent
with the plan, Mother underwent all required evaluations between October and
December 2014; she was diagnosed with Major Depressive Disorder, PTSD, and
Alcohol Use Disorder. Mother’s attendance at therapy and peer support programs
was inconsistent, however, and she never enrolled in a group outpatient substance
abuse program as recommended in her substance abuse evaluation.
On 12 November 2014, counsel for DHHS sent an email to District Court Judge
Angela Foster notifying her of the custody order in the Michigan Action and noting
the question of whether North Carolina could exercise jurisdiction over the children.
Following a phone call with a judge in Michigan, Judge Foster called the adjudicatory
hearing on the 20 November 2014 docket, but continued the hearing to allow the
Michigan court time to enter an order relinquishing jurisdiction to North Carolina.
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Opinion of the Court
On 3 December 2014, following the telephone conference with Judge Foster,
the Michigan court entered an order finding that “North Carolina is the more
convenient and appropriate forum,” and therefore the Michigan court declined and
relinquished further jurisdiction over the custody actions concerning Riley, Robert,
and Abigail to the North Carolina court.2 The record does not indicate whether the
Michigan court notified Father that it had relinquished jurisdiction to North
Carolina.
The trial court held a pre-adjudication, adjudication and disposition hearing
on 18 December 2014. Mother was present, as was a provisional attorney appointed
by the court to represent Father’s interests.3 Mother consented to the adjudication
of Abigail, Riley, Robert, and Ava as abused, dependent, and neglected. As
memorialized by order filed 14 January 2015, the court acknowledged that the
current plan for the four children was reunification, but found that Mother had not
yet made sufficient progress on her case plan to order reunification.
2 It is unclear, based on the orders in the record from the Michigan court, whether Abigail was
ever made subject to the Michigan Action; in any event, the Michigan court relinquished jurisdiction
with respect to Abigail, Riley, and Robert.
3 Provisional counsel for Father was appointed pursuant to N.C. Gen. Stat. § 7B-1101.1 and
consistent with the principle that “[p]arents have a right to counsel in all proceedings dedicated to the
termination of parental rights.” In re L.C., 181 N.C. App. 278, 282, 638 S.E.2d 638, 641 (2007) (internal
quotations omitted). There is no indication in the record that Father’s provisional counsel was able to
locate Father.
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Opinion of the Court
On 30 January 2015, Mother delivered twins Diana and Oscar. DHHS filed
juvenile petitions as to the twins alleging the newborn twins were neglected and
dependent on the basis of the DHHS reports and criminal charges from September
2014 and the ongoing custody proceedings relating to Abigail, Riley, Robert, and Ava.4
DHHS personnel, Mother, Mother’s therapists, and therapists for the children
met concerning visitation on 11 February 2015. It was revealed at the meeting that
Mother was not fully participating in therapy. As a result, the therapists
recommended against visitation until Mother was more “fully engaged” in therapy
and until recommended by the children’s therapists.
The trial court held a 90-day review hearing concerning Abigail, Riley, Robert,
and Ava on 12 March 2015. Counsel for Mother and provisional counsel for Father
were present. DHHS personnel, despite diligent efforts to contact Father prior to the
hearing, failed to locate and serve Father with notice of the hearing. Because Father
had not been served with the juvenile petition or notice of any hearing, the provisional
attorney for Father was released. The trial court acknowledged during the hearing
that reunification remained the plan for the children, but found that Mother had not
yet made sufficient progress as planned in her service agreement with DHHS.
4 Diana and Oscar were both adjudicated neglected and abused by consent of Mother, and the
court ordered that reunification efforts cease at the same time it ordered that such efforts cease with
respect to the other children. A recitation of the facts concerning the twins is not needed for disposition
of this appeal, as Father’s appeal concerns Abigail, Riley, and Robert only, and Mother’s appellate
brief asserts no specific argument regarding Diana or Oscar.
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The trial court held a permanency planning review on 7 May 2015. Neither
Father nor counsel representing Father attended the hearing, and there is no
indication that Father had received notice of the hearing. Mother attended the
hearing with her live-in boyfriend, who had a criminal history of domestic violence.
Following the presentation of testimony and other evidence, DHHS and the children’s
guardian ad litem recommended changing the plan from reunification to adoption in
large part due to Mother’s refusal to take public housing in favor of living with a man
with a history of domestic violence against the recommendation of therapists, DHHS
and the trial court, and despite her enrollment in a domestic violence education
program. The trial court entered an order on 4 June 2015 changing the plan from
reunification to adoption.
Mother continued to live with her boyfriend until August 2015, when she
moved to Charlotte, North Carolina without informing DHHS. Mother’s compliance
with the DHHS case plan further declined following her move. She had ceased
therapy in June 2015, and her enrollment in parenting classes was terminated for
failure to cooperate with the program provider.
DHHS continued its efforts to locate Father, and in September 2015 found him
living in Warren, Michigan. Father contacted DHHS for the first time on 9
September 2015, more than a year after the Michigan court had relinquished
jurisdiction over the children to North Carolina. He stated that he loved his children,
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Opinion of the Court
was unemployed and living with his sister, and disputed the facts of one of his
domestic violence convictions.
Father called DHHS again on 14 September 2015, and learned that he would
have to agree to a case plan with DHHS in order to reunify with his children, with
visitation permitted only on the advice of the children’s therapists. During the call,
Father acknowledged to DHHS personnel that he had used marijuana one week prior
and had been placed on probation for domestic violence against Mother while they
were together in Michigan. A month after the call, DNA testing confirmed Father’s
paternity of Riley, Robert, and Abigail, and Father agreed to undergo a home study
to facilitate reunification.
The trial court appointed an attorney for Father on 24 September 2015.
The trial court held another permanency planning review hearing on 19
November 2015. Mother and her attorney were present, as was Father’s attorney.
The trial court considered sworn testimony and written evidence, including a DHHS
summary report identifying Father’s lack of stable employment, lack of stable
housing, lack of a bond with the children, illegal substance use, and domestic violence
convictions as barriers to reunification. DHHS recommended that Father enter into
a case plan if he wished to pursue reunification. Father’s attorney requested a
concurrent plan for reunification and that DHHS make reasonable efforts to assist
Father. The trial court rejected that request based in part on Father’s lack of a bond
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with the children. However, the court ordered that Father enter into a case plan with
DHHS should he desire reunification. The court concluded that the primary
permanent plan of adoption and termination of parental rights as to both Mother and
Father remained in the best interests of the children and declined to disturb its 4
June 2015 order.
There is no indication in the record that Father or his attorney initiated contact
with DHHS to develop a case plan for reunification following the hearing.
A third permanency planning review hearing was held on 10 March 2016.
Mother and her attorney were present, as was Father’s attorney. The trial court
again received sworn testimony and written evidence in the form of court summaries
from DHHS, the Guardian ad Litem, and Michigan DHHS.
A home study report by Michigan DHHS concerning Father’s living
arrangements concluded that there was no room in the home for Father, let alone
children, and that the environment was not stable. The study also reported that
Father had received no unemployment benefits for two months, and his only income
was doing odd jobs. As a result, Michigan DHHS recommended against placement of
the children with Father. Following notification of the home study results, Father
stated he changed his living arrangements and moved in with his brother.
As for Mother, documentary evidence was introduced showing she had sought
therapy and medication management for mental health issues from providers in
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Opinion of the Court
Charlotte, although she had stopped attending both in November 2015. Despite her
move to Charlotte, Mother remained in a romantic relationship with the boyfriend
previously convicted of domestic violence offenses. DHHS recommended that
adoption remain the primary placement plan with guardianship as the secondary
plan, but also recommended that Father enter into and comply with a DHHS case
plan in order to pursue reunification. The trial court took the matter under
advisement.
On 23 March 2016, six months after Father was located by DHHS, in a
telephone conference with his attorney and DHHS personnel, Father agreed in
principle to a service agreement. On the call, Father acknowledged that he had
choked Mother in 2012, but denied attempting to stab her.
Twelve days later, on 4 April 2016, before Father’s service agreement was
finalized, DHHS filed verified petitions to terminate Father’s and Mother’s parental
rights. DHHS alleged in both petitions that termination of parental rights was
appropriate for neglect under N.C. Gen. Stat. § 7B-1111(a)(1) (2015), willfully leaving
the children in foster care for 12 months without reasonable progress under § 7B-
1111(a)(2), willful failure to pay a reasonable portion of cost of care pursuant to § 7B-
1111(a)(3), and incapability of providing care and supervision under § 7B-1111(a)(6).
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Opinion of the Court
Mother and Father were served with their respective petitions by certified mail on 11
and 14 April 2016, and both were served again personally on 21 April 2016.5
On 3 June 2016, the trial court entered an order—ruling on the issues it took
under advisement in the March permanency planning hearing—concluding that
adoption should remain the primary permanent plan. The court again ordered
Father and DHHS to enter into a service agreement if Father wanted to seek
reunification. Without referring directly to the petitions to terminate Mother’s and
Father’s parental rights, the order required DHHS to continue pursuing termination.
The trial court heard evidence and argument on the petitions to terminate
Mother’s and Father’s parental rights on 1-2 August 2016. Father did not attend the
hearing; his attorney moved to allow him to appear via telephone because he was
unable to attend in person. DHHS counsel objected on the grounds that Father’s
identity could not be verified via telephone and the hearing had been previously
rescheduled for the explicit purpose of permitting Father to appear in person. The
court denied Father’s motion. DHHS voluntarily dismissed without prejudice its
allegation that Father was incapable of caring for the children.
In the adjudicatory phase of the hearing, the trial court took judicial notice of
the contents of the court file and heard testimony from Mother, a social worker
5 Although Father had previously represented to DHHS that he had moved out of the home
that had failed the home study in early 2016, he was served at that address by sheriff and certified
mail on two separate dates.
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Opinion of the Court
assigned to the children, and an unlicensed “Peer Support Specialist” assisting
Mother. The trial court found that DHHS had established by “clear, cogent, and
convincing evidence” grounds to terminate Mother’s and Father’s parental rights.
In the dispositional phase, the trial court received the report of the guardian
ad litem and heard testimony from the guardian ad litem program supervisor. The
court determined that termination of parental rights was in the best interest of each
of the children. The trial court’s written order, entered 14 November 2016, concluded
that grounds existed to terminate Mother’s parental rights under N.C. Gen. Stat. §§
7B-1111(a)(1) [abuse or neglect], (2) [lack of reasonable progress to correct conditions
that led to petition], (3) [failure to pay for juvenile’s cost of care], and (6) [incapability
and dependency], to terminate Father’s rights under N.C. Gen. Stat. §§ 7B-1111(a)(1)
and (3), and that termination of parental rights was in the best interests of the
children.
Mother and Father appealed. Father also seeks certiorari review of the three
Permanency Orders, having failed to identify them in his Notice of Appeal or state
them in his Proposed Issues for Review on Appeal consistent with N.C. Gen. Stat. §
7B-1001(5)(a)(3).
II. Analysis
A. Father’s Appeal
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Father does not challenge any of the findings of fact or conclusions of law in
the Termination Order. He contends, however, that the trial court lacked subject
matter jurisdiction to determine his rights with respect to Riley, Robert, and Abigail
and that the trial court violated his statutory rights to notice and due process. For
reasons we will explain, we disagree.
1. Subject-Matter Jurisdiction
North Carolina’s Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), N.C. Gen. Stat. § 50A-101 et seq., governs the district court’s subject-
matter jurisdiction in child custody disputes. A trial court’s jurisdiction pursuant to
the UCCJEA is reviewed de novo. In re J.H., ___ N.C. App. ___, ___, 780 S.E.2d 228,
233 (2015).
Michigan and North Carolina have codified the UCCJEA in virtually identical
terms. N.C. Gen. Stat. § 50A-101 et seq.; Mich. Comp. Laws § 722.1101 et seq.
Although North Carolina’s district courts have original and exclusive jurisdiction
over juvenile abuse, neglect, and dependency cases under N.C. Gen. Stat. § 7B-200(a),
“the jurisdictional requirements of the UCCJEA . . . must also be satisfied for the
court to have authority to adjudicate petitions filed pursuant to our juvenile code.” In
re J.W.S., 194 N.C. App. 439, 446, 669 S.E.2d 850, 854 (2008) (citing In re Brode, 151
N.C. App. 690, 566 S.E.2d 858 (2002)). The UCCJEA recognizes four modes of
subject-matter jurisdiction: (1) initial child-custody jurisdiction, N.C. Gen. Stat. §
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50A-201; (2) exclusive, continuing jurisdiction, N.C. Gen. Stat. § 50A-202; (3)
jurisdiction to modify determination, N.C. Gen. Stat. § 50A-203; and (4) temporary
emergency jurisdiction, N.C. Gen. Stat. § 50A-204.
Temporary emergency jurisdiction exists “if the child is present in this State
and . . . it is necessary in an emergency to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened with mistreatment or
abuse.” N.C. Gen. Stat. § 50A-204(a). “A North Carolina court that does not have
jurisdiction under N.C. Gen. Stat. §§ 50A-201 or 50A-203 has temporary emergency
jurisdiction . . . .” J.W.S., 194 N.C. App. at 449, 669 S.E.2d at 856. A district court
need not make findings of fact to exercise temporary emergency subject matter
jurisdiction, In re E.X.J., 191 N.C. App. 34, 40-41, 662 S.E.2d 24, 27-28 (2008), aff’d
per curiam, 363 N.C. 9, 672 S.E.2d 19 (2009), and the entry of nonsecure custody
orders is permitted thereunder provided the terms of § 50A-204(a) are satisfied. In
re J.H., ___ N.C. App. at ___, 780 S.E.2d at 237. Once a court exercising temporary
emergency jurisdiction learns of a custody determination made in another state,
however, it must communicate with the other state’s court to resolve subject matter
jurisdiction going forward because the other state exercises exclusive and continuing
jurisdiction as a result of its prior order. N.C. Gen. Stat. §§ 50A-202, 50A-204, & 50A-
110.
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There is no dispute that the trial court had temporary emergency jurisdiction
to enter nonsecure custody orders with respect to Riley, Robert, and Abigail: DHHS
sought and procured the orders as a result of Mother’s threats to kill herself and her
children. But because the Michigan Action included a custody determination as to
the juveniles,6 the trial court could obtain subject matter jurisdiction over them only
if North Carolina would otherwise have initial child custody jurisdiction under N.C.
Gen. Stat. § 50A-201(a)(1) or (2) and if :
(1) The court of the other state [Michigan]
determines it no longer has exclusive, continuing
jurisdiction under G.S. 50A-202 or that a court of
this State would be a more convenient forum under
G.S. 50A-207; or
(2) A court of this State or a court of the other
state determines that the child, the child’s parents,
and any person acting as a parent do not presently
reside in the other state.
N.C. Gen. Stat. § 50A-203(a). N.C. Gen. Stat. § 50A-201(a)(1) provides for initial
custody jurisdiction if “[t]his State is the home state of the child on the date of the
commencement of the proceeding . . . .” The statute defines “home state” as that “in
which a child lived with a parent . . . for at least six consecutive months immediately
before the commencement of a child-custody proceeding,” id. § 50A-102(7), and we
6 Again, it is unclear from the record whether the Michigan Action included Abigail. Mother’s
petition for custody which initiated the Michigan Action did not mention Abigail, who was just one
month old at that time. However, the Michigan court entered an order relinquishing jurisdiction with
regard to Riley, Robert, and Abigail.
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determine a child’s home state jurisdiction based on the physical location of a child
and their parent. In re K.U.-S.G., 208 N.C. App. 128, 134, 702 S.E.2d 103, 107 (2010).
If a parent and her children are subject to the continuing and exclusive jurisdiction
of another state’s custody order, our courts acquire jurisdiction if the other state’s
court relinquishes jurisdiction consistent with N.C. Gen. Stat. § 50A-203(a) and if
North Carolina is the children’s “home state” as defined in N.C. Gen. Stat. § 50A-
201(a)(1). See also In re J.H, __ N.C. App. __, __, 780 S.E.2d 228, 235-36 (2015)
(applying this analysis to a North Carolina order modifying a Texas custody order).
Abigail, Riley, Robert, and Mother lived in North Carolina for more than a year
prior to the trial court’s hearing on pre-adjudication, adjudication, and disposition on
18 December 2014. Thus, North Carolina would qualify as the “home state” for the
juveniles pursuant to N.C. Gen. Stat. § 50A-201(a)(1) and would have acquired initial
custody jurisdiction but for the Michigan Action. Once the Michigan court
determined North Carolina would be a more convenient forum and relinquished
jurisdiction over the three children, the district court could assert jurisdiction under
N.C. Gen. Stat. § 50A-203.
We will not disturb the trial court’s assertion of jurisdiction based upon a
facially valid order from another state ceding jurisdiction to this State. See, e.g., In
re T.R., ___ N.C. App. ___, ___, 792 S.E.2d 197, 201 (2016) (“Nothing in the UCCJEA
requires North Carolina’s district courts to undertake a collateral review of a facially
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valid order from a sister state before exercising jurisdiction pursuant to N.C. Gen.
Stat. § 50A-203(1).”) (citation omitted).
2. Notice and Due Process
Father raises the issue of notice and due process in several contexts relating to
the UCCJEA,7 asserting that “[t]he UCCJEA is clear that notice and a meaningful
opportunity to participate in the jurisdictional decision are mandatory before
jurisdiction can be relinquished.” Father also argues “[t]he UCCJEA . . . requires
that before a court determines it is an inconvenient forum . . . , it must allow the
parties to submit information on the relevant factors the court must consider.”
(emphasis in original). Father’s argument is misplaced.
It was the Michigan court that determined it should relinquish jurisdiction to
North Carolina, as is contemplated by the statute: “the original decree state is the
sole determinant of whether jurisdiction continues.” Official Comment to N.C. Gen.
Stat. § 50A-202. To the extent that Father’s due process rights were frustrated or
denied, they were denied in Michigan, not North Carolina.
Father also argues that the UCCJEA and the North Carolina Juvenile Code
required notice to him in order for the trial court to assert subject matter jurisdiction
7 To the extent that Father contends his Constitutional rights to due process were violated
prior to the termination hearing, we note that he was served with process and represented by counsel
in the termination hearing and failed to raise any such arguments. Such arguments not raised at a
termination hearing may not be raised for the first time on appeal. In re T.P., 217 N.C. App. 181, 186,
718 S.E.2d 716, 719 (2011).
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following its nonsecure custody orders and before the hearing adjudicating the
children abused, neglected, and dependent, as he was never served with the juvenile
petitions prior to said hearing. We have previously held, however, that “there is no
legal basis for the . . . suggestion that the trial court lacked jurisdiction in the
termination of parental rights proceeding because the father was not served with a
summons in the initial adjudication proceeding.” E.X.J., 191 N.C. App. at 45, 662
S.E.2d at 31. The lack of service on Father prior to earlier custody and adjudication
proceedings does not defeat the valid service and notice provided him for the
termination hearing.
3. Petition for Writ of Certiorari
Father’s petition for certiorari challenging the trial court’s three permanency
orders argues there was insufficient evidence to support findings ceasing
reunification efforts and further asserts that the trial court failed to make findings of
fact required by N.C. Gen. Stat. §§ 7B-906.1 & 7B-906.2. But the Termination Order
included findings—unchallenged by Father—that support cessation of reunification
efforts, and the contents of termination orders cure defects in a prior permanency
planning order. In re L.M.T., 367 N.C. 165, 170, 752 S.E.2d 453, 456-57 (2013). See
also In re D.C., 236 N.C. App. 287, 292, 763 S.E.2d 314, 317-18 (2014) (concluding
inadequate findings to support cessation of reunification efforts in a permanency
planning order were cured by a later termination of parental rights order that “made
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additional detailed findings of fact . . . continuing up to the time of the hearing on
termination of parental rights.”). We also note that Father has failed to include the
transcripts of the permanency planning hearings or request their inclusion via a
motion to this Court pursuant to N.C. R. App. P. 9(b)(5)(b); we are obligated by the
absence of the transcripts to consider the court’s findings at those hearings as
supported by competent evidence. See Stone v. Stone, 181 N.C. App. 688, 691, 640
S.E.2d 826, 828 (2007). We therefore deny Father’s petition in our discretion.
B. Mother’s Appeal
By the plain text of the statute, termination of parental rights is permitted
upon a finding of any one ground enumerated in N.C. Gen. Stat. § 7B-1111(a). The
trial court in this action found four grounds existed as to Mother: (1) dependency; (2)
abuse or neglect; (3) Mother’s lack of reasonable progress to correct conditions that
led to DHHS’ petitions for custody; and (4) Mother’s failure to pay for the cost of her
children’s care. Appellant challenges each of these grounds. However, because the
trial court’s findings were based on clear, cogent, and convincing evidence of
dependency as defined in N.C. Gen. Stat. § 7B-1111(a)(6), we uphold the order
terminating Mother’s parental rights and do not reach her challenges regarding the
other three grounds.
In reviewing findings of fact in a termination of parental rights order, we must
determine “whether the trial court’s findings of fact are based upon clear, cogent, and
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Opinion of the Court
convincing evidence . . . .” In re I.T.P-L., 194 N.C. App. 453, 461, 670 S.E.2d 282, 287
(2008) (citation omitted). If clear, cogent, and convincing evidence is present in the
record to support a finding, it will not be disturbed, even in the face of evidence to the
contrary. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Legal
conclusions drawn from the court’s factual findings are reviewed de novo. In re S.N.,
194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008). As for a determination by the trial
court that termination is in the best interests of the child, we review for abuse of
discretion where it is “manifestly unsupported by reason.” In re J.A.A., 175 N.C. App.
66, 75, 623 S.E.2d 45, 51 (2005).
Mother’s sole challenge to the trial court’s order finding the children dependent
disputes a detailed finding of her history of mental illness and inconsistent treatment.
Mother cites the lack of evidence showing the status of her mental health at the time
of her hearing and points to the trial testimony of an unlicensed “Peer Support
Specialist” that Mother’s mental health had improved. As a result, Mother argues,
“DHHS did not prove by clear and convincing evidence that the condition still
rendered her incapable of parenting . . . .”
“[I]t [is] the trial court’s responsibility to weigh the conflicting testimony and
make appropriate findings of fact.” In re J.C., 236 N.C. App. 558, 562, 783 S.E.2d
202, 205 (2014). Here, there was ample documentary evidence and sworn testimony
from a DHHS social worker from which the trial court could resolve any conflicting
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Opinion of the Court
testimony by the Peer Support Specialist. While it is true that the last clinical
assessment of Mother was approximately a year prior to the termination hearing, we
have previously held that a psychological evaluation conducted a year prior to a
termination hearing can support the termination of parental rights where “the
persistence of her personality problems characterized in her psychological evaluation
as ‘not easily amenable to change[,]’ together with her lack of mental health
treatment, constituted clear, cogent, and convincing evidence that her mental health
problems had not changed significantly since the evaluation.” In re V.L.B., 168 N.C.
App. 679, 685, 608 S.E.2d 787, 791 (2005). This was so irrespective of recent therapy.
Id. at 685, 608 S.E.2d at 791.
The record here is sufficiently analogous to V.L.B. Mother’s initial mental
health assessment in October 2014 indicated that she suffered from recurring severe
depression and PTSD. An assessment by a licensed psychologist two months later
stated:
[U]ntil she has better control over her depression and
emotional neediness, she will continue to place herself and
her children at risk for further harm. . . . [Mother] will
need assistance. . . . At present, she is ill equipped
emotionally and cognitively to accomplish [her treatment]
goals independent of ongoing support, guidance, and
therapy. . . . She needs medication to address her
depressive symptomatology. And . . . she needs therapy to
help her develop more effective coping strategies. . . .
Mother did not follow these recommendations. A year later, another mental health
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Opinion of the Court
assessment indicated Mother continued to suffer from these same conditions and
again recommended therapy. Following the second recommendation and prior to the
termination hearing, Mother still did not participate in therapy, but instead
misrepresented the status of her treatment to DHHS. Mother’s longstanding mental
health conditions and her repeated failures to follow recommendations for treatment
necessary to care for her children safely constituted clear, cogent, and convincing
evidence to support the trial court’s findings of dependency.
Mother next contends that the trial court abused its discretion in determining
that termination of her parental rights would be in the best interests of Robert and
Riley.8 Mother challenges the findings that their likelihood of adoption remains high,
that Robert is showing “great improvement” in foster care, and that Riley is in “a
loving, nurturing, and safe environment.” However, documentary evidence produced
by the children’s guardian ad litem notes that “[w]ith therapy, this GAL believes
[Robert and Riley] will be able to be adopted. . . . [Robert] has a respectable bond with
[redacted],9 his caretaker. . . . [Robert] told this GAL he likes living with [redacted].”
Further, the guardian ad litem supervisor testified at trial that “with the
continuation of appropriate therapies, I believe that [Robert and Riley] will be
adoptable,” and that they had developed positive bonds with their caretakers. In light
8 Mother concedes that the trial court did not err in concluding that termination of parental
rights was in the best interests of the other minors.
9 The name of Robert’s caretaker has been removed to protect his privacy.
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Opinion of the Court
of this evidence, we cannot hold that the challenged findings were manifestly
unsupported by reason.
Mother also contends that the likelihood of adoptability is low given Robert’s
and Riley’s past behavioral problems and urges us to follow our decision in In re
J.A.O., 166 N.C. App. 222, 601 S.E.2d 226 (2004). That decision is inapposite. The
teenage juvenile in J.A.O. had been in foster care for fourteen years, transferred
caretakers nineteen times, lacked sufficient support, had a history of physical and
verbal aggression, and suffered from a total of six medical conditions, both physical
and mental. 166 N.C. App. at 227-28, 601 S.E.2d at 230. Indeed, the guardian ad
litem in that case urged against adoption, and the mother “had made reasonable
progress to correct the conditions that led to the petition to terminate her parental
rights.” Id. at 224-25, 601 S.E.2d at 228-29.
Finally, Mother contends that the trial court’s failure to make detailed findings
concerning Robert and Riley’s behavioral issues runs afoul of the “[a]ny relevant
consideration” language of N.C. Gen. Stat. § 7B-1110(a)(6). However, the order does
contain a finding addressing this behavior, stating that “[t]hey have behavioral issues
related to the trauma they experienced prior to removal. With continued therapeutic
treatment, the likelihood of their adoption remains high.” Further, “ ‘[t]he trial court
is not required to make findings of fact on all the evidence presented, nor state every
option it considered’ in arriving at its disposition under N.C. Gen. Stat. § 7B-1110.”
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Opinion of the Court
In re D.LW., 241 N.C. App. 32, 43, 773 S.E.2d 504, 511 (2015), reversed in part on
separate grounds, 368 N.C. 835, 788 S.E.2d 162 (2016) (quoting In re J.A.A., 175 N.C.
App. 66, 75, 623 S.E.2d 45, 51 (2005)). Mother’s argument on this point is overruled.
As a result, we hold the trial court did not abuse its discretion in finding termination
of Mother’s parental rights was in the best interests of Robert and Riley.
IV. Conclusion
We hold that the district court properly exercised subject-matter jurisdiction
regarding Father’s parental rights on a temporary emergency basis and, once
Michigan released continuing and exclusive jurisdiction over Father’s children, under
jurisdiction to modify a foreign court’s determination. We further hold that despite
Father’s lack of notice of the initial custody proceedings, he was not denied due
process in the termination proceeding because he was properly served with the
petition and was represented by counsel in the proceeding. Finally, we hold that the
district court did not err in its adjudication of the children or in its termination of
Father’s and Mother’s parental rights.
AFFIRMED.
Chief Judge MCGEE and Judge TYSON concur.
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In re: A.L.L., R.J.M., R.A.M., A.O.Z., D.A.M.
Court: Court of Appeals of North Carolina
Date filed: 2017-07-05
Citations: 802 S.E.2d 598, 254 N.C. App. 252
Copy CitationsCombined Opinion