In re B.S.T.

1

IN THE MATTER OF: B.S.T., K.M.T., L.M.T.

No. COA22-410

Court of Appeals of North Carolina

June 6, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 16 May 2023.

Appeal by Respondent-Mother from order entered 11 February 2022 by Judge Marcus A. Shields in Guilford County District Court Nos. 17 JT 197-98, 17 JT 272.

Mercedes O. Chut for Petitioner-Appellee Guilford County Department of Health and Human Services.

North Carolina Administrative Office of the Courts, by GAL Appellate Counsel Matthew D. Wunsche, for Guardian ad Litem.

Robert W. Ewing for Respondent-Appellant Mother.

COLLINS, JUDGE

Respondent-Mother appeals the trial court's order terminating her parental rights to her minor children, Ben, Kathy, and Lori.^[1] Mother argues that the trial court erroneously determined that grounds existed to terminate her rights under N.C Gen. Stat. § 7B-1111(a)(1), (2), and (6). After review we conclude the trial court properly terminated Mother's parental rights and affirm the termination order.^[2]

I. Background

Petitioner Guilford County Department of Health and Human Services ("DHHS") received a report on 6 February 2017 alleging inappropriate discipline after Mother's stepson James was seen with a swollen eye during a FaceTime call. The family had recently moved to Guilford County from Pennsylvania, and the reporter expressed concerns about prior Child Protective Services ("CPS") involvement with the family, Mother's history of hitting her children, and the family's unsanitary living conditions while in Pennsylvania. A DHHS social worker conducted an unannounced home visit the same day; Mother and the children denied any abuse had occurred. Mother stated that her children had had behavior problems at their schools in Pennsylvania and had made claims of abuse against her that were determined to be unfounded. Mother attributed James' eye injury to his habit of picking at the eye. However, James was not present when the visit occurred. The social worker completed a safety plan with Mother whereby the children would be enrolled in school within one week, and the family would agree to services.

The social worker returned the next day. James and the father were present, and they also attributed James' eye injury to his habit of picking at it. The father vouched for Mother's statements regarding the children's behavior problems. James denied Mother "was mean to him" or his brother David, who was also Mother's stepson. The social worker observed a small bump on James' eye and a small, dime-sized mark on his cheek, and she advised the parents to take James in for a medical evaluation.

On 14 February 2017, DHHS received a report from James' new school that he had presented with a large mark on his face near his eye. Two days later, the DHHS social worker visited the family. As reported, James had a "large pink mark on his face stretching from his eye to [his] cheek." James explained that the mark appeared after Mother put a hot rag on his face because his eye was hurting. Mother stated that the rag was microwaved for one minute before it was applied to James' face. She described it as "hot, but not that hot to her touch" but "when the rag was taken off his face, she noticed his skin peeled and that it had burnt his face." The social worker requested that the parents take James to the emergency room to have the injury assessed. The emergency room doctor did not note any concerns about the injury.

On 22 February 2017, the DHHS social worker visited the children's school. The school reported that James and David "always appear to be hungry," but when they were interviewed, both boys stated that they ate at home and were able to report what they had eaten the previous day. James and David confirmed that the rag that was placed on James' face was microwaved "for about 1 minute," and James stated he did not tell Mother it was hot, though he was "kicking and yelling."

Shortly thereafter, DHHS received the family's Pennsylvania CPS history. The files included five separate reported instances of potential abuse against either James or David. The social worker visited the family and completed a new safety assessment regarding discipline, and the parents agreed to not physically discipline the children during the DHHS investigation. DHHS also referred James and David for Child Medical Examinations ("CMEs").

The CMEs were conducted on 20 March 2017. During their interviews, James and David reported being locked in their bedrooms as punishment, which forced them to urinate and defecate in the rooms. Both children also stated they were "scared about something," but they did not elaborate further. James and David both had marks and scars on multiple areas of their bodies, some from possible cigarette burns. In the medical staff's opinion, the marks and scars were "non-accidental." The medical staff additionally reviewed the records from James' visit to the emergency room and stated their opinion that James' burn was also non-accidental because "the rag had to be hot enough to cause injury and . . . [Mother] had to have some kind of object to prevent herself from getting burned."

The next day, DHHS filed juvenile petitions alleging that Ben and Kathy were neglected and James and David were abused and neglected. DHHS was awarded nonsecure custody, and it placed the children in foster care.

Lori was born in July 2017. The parents did not inform DHHS of the pregnancy, and Mother did not receive prenatal medical care. One week after Lori's birth, DHHS filed a juvenile petition alleging Lori was neglected and dependent. In support of these allegations, DHHS stated that it had received an emergency report alleging that Lori was living in an injurious environment. DHHS also noted that Kathy, Ben, James, and David were already in DHHS custody and recounted the allegations that led to the assumption of their custody. Based on the petition allegations, DHHS was awarded nonsecure custody of Lori as well.

The petitions for all five children were heard on 18 August 2017. One month later, the trial court entered orders concluding that Ben and Kathy were neglected and dependent, Lori was neglected, and James and David were abused, neglected, and dependent.

The trial court conducted a dispositional hearing over two days in September and October 2017. On 3 November 2017, the trial court entered its disposition order. Mother was ordered to comply with her case plan, which required her to (1) maintain suitable housing, cooperate with announced and unannounced home visits, keep utilities current, and contact DHHS within 48 hours of any changes to her living situation; (2) participate in a parenting/psychological evaluation and follow any resulting recommendations, successfully complete the Parent Assessment Training and Education (PATE) program, cooperate with child support enforcement, and attend appointments with the children when deemed appropriate; (3) provide DHHS with verification of her income and keep DHHS updated on her employment status; and (4) submit to a substance abuse assessment and follow through with any resulting recommendations. The trial court also required Mother to "enter individual therapy and complete a psychological evaluation, whereby the evaluator is presented with the Child Protective Services (CPS) history from Pennsylvania as well as a copy of the Petition prior to the evaluation occurring." The court concluded that "[i]t is in the best interest of the juveniles that the goal is reunification." The children remained in DHHS custody, and Mother was denied any visitation with Ben, Kathy, or Lori.

After a series of continuances, the trial court conducted a permanency planning hearing in March 2019. In its 21 May 2019 order resulting from that hearing, the trial court made the following findings about Mother's progress on her case plan: the parents moved out of their apartment and were living in a hotel, Mother had completed a parenting evaluation and the PATE program, Mother was in arrears of $250 for child support, Mother worked in event planning and was paid under the table, and Mother had tested negative for illegal substances on her only test. The court set a permanent plan of adoption with a concurrent plan of reunification. Visitation between Mother and her children remained suspended, and the attorney advocate for the guardian ad litem ("GAL") was directed to file a termination of parental rights petition within 60 days.

The trial court held the next permanency planning hearing on 11 October 2019. In its 11 December 2019 order resulting from the hearing, the court again addressed Mother's progress on her case plan, finding that the parents still lived in a hotel, Mother was regularly attending mental health counseling, Mother still had $250 in child support arrears, Mother claimed to be working at Outback Steakhouse but had not provided verification, and Mother had completed her substance abuse assessment, and it was suggested that she limit her use of alcohol. The trial court maintained adoption as the primary plan with a concurrent plan of reunification. Mother's visitation with her children remained suspended, and the GAL was ordered to file a termination petition "by the end of next week."

The GAL filed a petition to terminate Mother's parental rights to her children Ben, Kathy, and Lori on 15 November 2019^[3] and filed an amended petition three days later. The GAL alleged that Mother's rights could be terminated based on four grounds: neglect, willful...