In re L.H.

378 N.C. 625

862 S.E.2d 623

In the MATTER OF: L.H., I.H.

No. 501A20

Supreme Court of North Carolina.

Filed September 24, 2021

Marcus P. Almond, Statesville, for petitioner-appellee Catawba County Department of Social Services.

Michelle FormyDuval Lynch, for appellee Guardian ad Litem.

Jeffrey William Gillette, for respondent-appellant mother.

EARLS, Justice.

¶ 1 Respondent-mother appeals from the trial court's order terminating her parental rights to her minor daughters, L.H. (Lucy) and I.H. (Ingrid).¹ We affirm.

I. Background

¶ 2 The record shows that Catawba County Department of Social Services (DSS) has a long history of involvement with respondent and her children. DSS filed a juvenile petition regarding one-month-old Lucy and three of her older siblings in December 2005 and then filed a second petition and obtained nonsecure custody of the children in January 2006.² Following a hearing on the petitions conducted over the course of February, March, and April 2006, the trial court entered an order on 7 June 2006 that adjudicated Lucy and her siblings neglected juveniles and granted DSS custody of the juveniles. The adjudication was based on findings that the children's biological father, from whom respondent was divorced, had twice been convicted of indecent liberties, once for conduct involving two of his sisters and once for conduct involving another juvenile family member; had engaged in inappropriate sexual contact with his oldest daughter; and posed a significant risk of further sexual abuse. The court further found that respondent was aware of the father's convictions but did little to protect the children, did not believe the children were at risk, and refused to agree to prevent the father from further contact with Lucy. Respondent allowed the children to visit the paternal grandmother's home despite a history of inappropriate sexual conduct in the family, left the children in the supervision of an individual who was involved in an active Child Protective Services (CPS) investigation, and lived with the children in an unsafe environment. With the father in prison, respondent made significant progress on her case plan by the time the matter came on for a review hearing on 27 June 2006, and the children had been returned to her care. In the order entered after the review hearing, the trial court returned custody of the children to respondent.

¶ 3 Nine years later, on 3 November 2015, DSS filed a juvenile petition alleging that nine-year-old Lucy, seven-year-old Ingrid, and their fifteen-year-old sister Sarah were neglected juveniles and obtained nonsecure custody of the children. Following a hearing in February 2016, the trial court entered an order on 1 March 2016 that adjudicated the children neglected juveniles based on the following findings: that respondent and the children were residing with an individual, Charles Fleming, who had previously been charged with felony indecent liberties with a child and convicted of assault on a child and had been separately convicted of misdemeanor contributing to the delinquency of a juvenile; that respondent refused to sign an agreement specifying there would be no unsupervised contact between Mr. Fleming and the children and continued to live with Mr. Fleming and leave the children in his care unsupervised; that respondent admitted to a social worker that Sarah had been sleeping in the same bed with Mr. Fleming; and that, despite the parties’ denials, evidence indicated a sexual relationship existed between Sarah and Mr. Fleming. The trial court granted custody of the children to DSS. Respondent cooperated with services offered by DSS, and the matter came on for regular review and permanency-planning hearings until the trial court returned Lucy and Ingrid to respondent's custody by order entered 22 May 2018.

¶ 4 On 18 March 2019, DSS filed the most recent juvenile petition alleging thirteen-year-old Lucy and eleven-year-old Ingrid were abused and neglected juveniles and obtained nonsecure custody of the children. The petition alleged that respondent's boyfriend, Johnny Gortney, who was also a caretaker for the children, had inappropriately touched Ingrid "both over and under her clothes on her ‘boobs’ and genital area, using his hands and fingers[,]" on more than one occasion between August and December 2018; and he had inappropriately touched Lucy "over her clothes on her ‘boobs’ with his hand" on more than one occasion in November 2018. Following a hearing on 22 April 2019, the trial court entered an order on 23 May 2019 that adjudicated Lucy and Ingrid abused and neglected juveniles based on findings that were consistent with the allegations in the petition. The trial court ordered that DSS retain custody of the children and that respondent comply with a case plan with requirements to complete an updated psychological evaluation, a parenting assessment, a non-offending parenting program, individual counseling, and therapy with the children. The court allowed respondent weekly supervised visitation with the children but ordered Mr. Gortney not to have contact with the children.

¶ 5 In an order entered on 29 August 2019 following a 29 July 2019 permanency-planning hearing, the trial court set the primary permanent plan for the children as reunification and the secondary plan as adoption. The court's findings indicated respondent was availing herself of services, but the court expressed concern that respondent had not proven capable of protecting the children from sexual abuse by members of their household despite CPS's long history of involvement with the family and the extensive services provided. The court specifically identified respondent's failure to demonstrate that she could keep her children safe from risk as a barrier to reunification.

¶ 6 Following the next permanency-planning hearing on 21 October 2019, the trial court entered an order on 22 November 2019 that changed the primary permanent plan for the children to adoption with a concurrent secondary plan of reunification and guardianship. The change in the permanent plan was based, in part, on the results of respondent's psychological evaluation reassessment, which indicated "the combination of [respondent's] mental health and cognitive limitations result[ed] in her inability to effectively and safely parent and protect her children" and that "it [was] not likely that any service provided to [respondent] could significantly alter her inability to parent and protect her children." The court further found the results were validated by its own history with and observation of respondent. Specifically, the court found a clear pattern had emerged, whereby the children were exposed to men with histories of committing sexual offenses and were sexually abused; then the children were removed from the home, respondent participated in services and demonstrated some improvement, and the children were returned to respondent's care for the cycle of abuse to be repeated. The court also found that respondent disbelieved the sexual abuse even occurred and believed the abusers over her children.

¶ 7 On 27 November 2019, DSS filed a motion in the cause to terminate respondent's parental rights in Lucy and Ingrid on the grounds of neglect, willfully leaving the children in a placement outside the home for more than twelve months without a showing of reasonable progress, and dependency. See N.C.G.S. § 7B-1111(a)(1)–(2), (6) (2019). Respondent filed a reply denying that grounds existed to terminate her parental rights. A termination hearing began on 2 June 2020 and continued on 1, 14, and 15 July 2020.³ The trial court entered an order on 26 August 2020 that adjudicated the existence of all three grounds for termination alleged in the motion, concluded termination of respondent's parental rights was in Lucy's and Ingrid's best interests, and terminated respondent's parental rights in both children. Respondent appeals.

II. Analysis

¶ 8 Respondent challenges the trial court's adjudication of the existence of grounds to terminate her parental rights pursuant to N.C.G.S. § 7B-1111(a)(1), (2), and (6).

¶ 9 "Our Juvenile Code provides for a two-step process for termination of parental rights proceedings consisting of an adjudicatory stage and a dispositional stage." In re Z.A.M. , 374 N.C. 88, 94, 839 S.E.2d 792 (2020) (citing N.C.G.S. §§ 7B-1109, -1110 (2019)). "At the adjudicatory stage, the petitioner bears the burden of proving by ‘clear, cogent, and convincing evidence’ the existence of one or more grounds for termination under section 7B-1111(a) of the General Statutes." In re A.U.D. , 373 N.C. 3, 5–6, 832 S.E.2d 698 (2019) (quoting N.C.G.S. § 7B-1109(f) (2017) ). This Court reviews a trial court's adjudication of grounds for termination "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246 (1984) (citing In re Moore , 306 N.C. 394, 404, 293 S.E.2d 127 (1982) ). "A trial court's finding of fact that is supported by clear, cogent, and convincing evidence is deemed conclusive even if the record contains evidence that would support a contrary finding." In re B.O.A. , 372 N.C. 372, 379, 831 S.E.2d 305 (2019). "Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal." In re T.N.H. , 372 N.C. 403, 407, 831 S.E.2d 54 (2019) (citing Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729 (1991) ). "Moreover, we review only those findings necessary to support the trial court's determination that grounds existed to terminate respondent's parental rights." Id. "The trial court's conclusions of law are reviewed de novo." In re M.C. , 374 N.C. 882, 886, 844 S.E.2d 564 (2020).

¶ 10 A trial court may terminate parental rights if it concludes the parent has neglected the juvenile within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B-1111(a)(1). A...