In re H.M.

1

IN RE: H.M.

No. COA22-552

Court of Appeals of North Carolina

May 16, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 26 April 2023.

Appeal by Respondent-Mother from Orders entered 22 March 2022 and 6 April 2022 by Judge William F. Helms, III in Union County District Court No. 19JT176.

Perry Bundy, Plyler & Long, LLP, by Ashley J. McBride, for Petitioner-Appellee.

J Thomas Diepenbrock for Respondent-Appellant Mother.

Ward and Smith, P.A., by Christopher S. Edwards, Guardian ad litem.

HAMPSON, Judge.

Factual and Procedural Background

Respondent-Mother appeals from Orders terminating her parental rights in her minor child pursuant to N.C. Gen. Stat. § 7B-1111. The Record before us tends to reflect the following:

On 18 October 2019, Union County Department of Social Services (DSS) filed a juvenile petition alleging the minor child to be a neglected and dependent juvenile. Following a hearing on 14 July 2020, the trial court entered an order on 18 August 2020 adjudicating the minor child to be a neglected juvenile based, in part, on Respondent-Mother admitting to temporarily leaving the minor child in the care of others while she uses methamphetamines. The minor child was placed in the custody of DSS on 21 October 2020.

On 19 October 2021, DSS filed a Petition to terminate Respondent-Mother's parental rights to the minor child. DSS alleged grounds existed to terminate Respondent-Mother's parental rights for neglect willfully failing to pay a reasonable portion of the costs of care for the juvenile, and dependency, pursuant to N.C. Gen Stat. § 7B-1111(a)(1), (a)(3), and (a)(6).

Following the grounds phase of the hearing, held on 25 January 2022 and 9 February 2022, the trial court entered an Order for Termination of Parental Rights Grounds Phase on 22 March 2022. This Order included the following Findings of Fact:

15. Pursuant to N.C. G.S. §7B-1111, the Union County Division of Social Services has proven by clear, cogent, and convincing evidence that grounds exist for the termination of parental rights of Mother based on but not limited to the following:

A. [Respondent-Mother] has neglected the juvenile, to wit:

1) [Respondent-Mother] has not engaged in services to address identified needs, to wit: a) Substance Abuse.

i. Early on in the case, [Respondent-Mother] completed a Daymark Assessment and was attending Daymark for substance abuse treatment. However, she continued to test positive, this included drug screens on November 18, 2019, for methamphetamines and December 30, 2019, for amphetamines, benzodiazepine, and opiates.

ii. [Respondent-Mother] completed her Daymark Substance abuse program on May 19, 2020 but did not complete the majority of the drug screens requested of her by Daymark and completed no drug screens from February 2020 until May of 2020.

iii. [Respondent-Mother's] May 21, 2020, drug screen was negative, but it was not an observed drug screen.

iv. [Respondent-Mother] was arrested for Possession of Drug Paraphernalia on June 1, 2020.

v. On July 14, 2020, the court ordered [Respondent-Mother] to complete a hair follicle test within 48 hours. She did not complete the test.

vi. [Respondent-Mother] completed a court ordered hair follicle test on October 27, 2020, and tested positive for amphetamines and methamphetamines.

vii. On November 18, 2020, December 12, 2020, and January 28, 2021, [Respondent-Mother] completed drug screens and tested negative. viii. [Respondent-Mother] failed to complete any other requested drug screens for DSS including those requested in March, April, May, or June of 2021.

ix. On June 29, 2021, the court again Ordered [Respondent-Mother] to complete an observed drug screen within 24 hours. She failed to complete the drug screen.

x. On June 1, 2020, and July 30, 2021, [Respondent-Mother] was arrested for possession of methamphetamines and possession of drug paraphernalia. She admits that on each occasion, the pipe that was in the car in which she was a passenger was used for methamphetamines. She denies that the pipe is her [sic]. She testified that the pipes belonged to the 2 separate individuals who she was with when she was arrested. This information is probative and relevant in that, during that period of time she was in the presence of methamphetamine use.

xi. Although [Respondent-Mother] completed her substance use treatment with Daymark in May of 2020, she has continued to be around illegal substances and test positive for illegal substances.

xii. On October 27, 2020, [Respondent-Mother] submitted to a hair follicle drug screen that was positive.

xiii. In October of 2021, [Respondent-Mother] reported to Daymark that she had used methamphetamines a few days before that. The test occurred contemporaneously with the filing of the TPR petition. xiv. This case has been ongoing since 2019 with very little progress. [Respondent-Mother] has failed to maintain sobriety for any considerable period of time.

b) Mental Health

i. On January 11 & 12, 2021, [Respondent-Mother] had a parental capacity assessment done by Dr. George Popper.

ii[]. The recommendation from the assessment was that [Respondent-Mother] was to see treatment to address some mental health concerns such as adjustment disorder and antisocial personality disorder, as well as address her substance use issues.

i[ii]. [Respondent-Mother] has not engaged in any mental health treatment.

c) Housing/Employment i. Throughout the life of this case, [Respondent-Mother] has lived with a friend . . . . She and the juvenile shared a room together in this home.

ii. [Respondent-Mother] reports that she cleans houses for a living. She has provided the Social Worker with handwritten notes of what dates she has worked and how much she has made on one occasion.

iii. [Respondent-Mother] agreed to search for employment which would allow her to financially care for the juvenile. In December of 2020, she did submit several applications and provided that information to DSS but has not provided any information since the[n].

2) Based on the historical facts of this case, there is a high probability of repeated neglect if the juvenile is returned to [Respondent-Mother].

3) [Respondent-Mother's] failure to comply with her Out of Home Services Agreement, her unwillingness to be forthcoming about her substance use, unwillingness to submit to drug test, and her unwillingness to seek treatment are all indicative of the probability of repeated neglect.

B. The juvenile has been placed in the custody of Union County Division of Social Services and in a foster home and [Respondent-Mother], for a continuous period of six months next preceding the filing of the motion, has willfully failed for such a period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so, to wit:

1) Since October of 2020, [Respondent-Mother] reported and testified that she was working either waiting tables or cleaning houses. She has failed to pay any amount of her income greater than $0.00 for the use and benefit of the minor children.

2) [Respondent-Mother] does not have any physical or mental disabilities that would preclude her [from] paying child support in an amount greater than $0.00 for the use and benefit of the minor child. She has failed to pay any amount greater than $0.00 for the use and benefit of the minor child.

C. [Respondent-Mother] is incapable of providing 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, to wit:

1)[Respondent-Mother] does not have reasonable and appropriate alternative childcare arrangements for the juvenile.

2) [Respondent-Mother] does not have the ability to provide appropriately as she has failed to address substance abuse, and mental health.

3) She has failed to adequately engage in services to address her identified needs.

4) This matter has been subject to numerous delays. The delays made it possible for [Respondent-Mother] to address and solidify her substance abuse recovery. She has had ample time to address the issues that were raised in the original petition filed on October 18, 2019.

Based on these Findings, the trial court concluded grounds exist to terminate Respondent-Mother and Respondent-Father's parental rights in minor child. The trial court held the best interests phase of the hearing on 9 March 2022. Following this hearing, the trial court entered an Order to Terminate Parental Rights Best Interests Phase on 6 April 2022, concluding it was in the best interests of the minor child to terminate the parental rights of both Respondent-Mother and Respondent-Father.^[1] On 20 April 2022, Respondent-Mother timely filed Notice of Appeal.

Issue The dispositive issue on appeal is whether the trial court properly determined grounds exist to terminate Respondent-Mother's parental rights in minor child pursuant to N.C. Gen. Stat. § 7B-1111.

Analysis

"At the adjudicatory stage of a termination of parental rights hearing, the burden is on the petitioner to prove by clear cogent, and convincing evidence that at least one ground for termination exists." In re O.J.R., 239 N.C.App 329, 332, 769 S.E.2d 631, 634 (2015) (citations omitted); see also N.C. Gen. Stat. § 7B-1109(f) (2021). Therefore, "[t]his Court reviews a trial court's conclusion that grounds exist to terminate parental rights to determine whether clear,...