In The Matter Of: D.B.G. and C.M.G
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-283 NORTH CAROLINA COURT OF APPEALS Filed: 18 September 2012 IN THE MATTER OF: Pitt County Nos. 09 JT 53 10 JT 54 D.G. C.G. Appeal by respondent from orders entered 30 November 2011 by Judge William C. Farris in Pitt County District Court. Heard in the Court of Appeals 14 August 2012. Elizabeth Myrick Boone for petitioner-appellee. Ryan McKaig for respondent-appellant. North Carolina Administrative Office of the Courts, Appellate Counsel Pamela Newell, for guardian ad litem. by GEER, Judge. Respondent parental rights ("Cindy").1 court 1 erred father to his appeals son from D.G. orders ("Dan") terminating and daughter his C.G. On appeal, respondent father argues that the trial when determining that grounds for termination The pseudonyms "Dan" and "Cindy" are used throughout this opinion to protect the minor's privacy and for ease of reading. Respondent mother is not a party to this appeal. -2existed and finding that termination of his parental rights was in the best interests of the children. of law regarding the grounds on Because the conclusions which respondent's parental rights were terminated are supported by clear and convincing evidence, and the trial court did not abuse its discretion by determining the best interests of the children were served by termination, we affirm. Facts On 13 April 2009, Pitt County Department of Social Services ("DSS") filed a petition alleging Dan was neglected due to his (1) not receiving proper care, supervision, or discipline; (2) not receiving environment necessary injurious medical to his care; and welfare. (3) living The in trial an court adjudicated Dan a neglected juvenile on 19 June 2009. On 1 April 2010, DSS filed a petition alleging Cindy was neglected due to her (1) not receiving proper care, supervision or discipline and (2) living in an environment injurious to her welfare. because The petition also alleged she was a dependent juvenile her supervision arrangement. parents and were lacked an unable to provide appropriate for alternative her care child or care The trial court adjudicated Cindy neglected and dependent on 9 June 2010. -3In an order filed 16 September 2010, the trial court ordered DSS to cease reunification efforts with both parents as to Dan. At a hearing on 2 December 2010, the trial court ordered DSS to cease reunification efforts as to Cindy. The permanent plan for both children was changed to guardianship with a concurrent plan of adoption. 2011, the court ordered DSS to In an order filed 8 July cease all visits between respondent father and his children and directed DSS to file a petition to terminate parental rights to both Dan and Cindy. On 9 August 2011, DSS filed a petition in each of the two cases to terminate both parents' rights to the children. DSS alleged in each petition the following grounds as to respondent father: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2011); (2) failure to make reasonable progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(2); and (3) failure to pay a reasonable portion of the cost of care pursuant to N.C. Gen. Stat. § 7B1111(a)(3). The termination hearing occurred on 3 November 2011. In its adjudication orders entered in the two cases on 30 November 2011, the trial court found, as to each child, the existence of all three rights. determined grounds In to separate that terminate respondent disposition termination of orders, respondent father's the parental trial father's court parental -4rights was in the best interests of the children and ordered that his parental rights be terminated. Respondent father timely appealed to this Court. Discussion Termination process. of parental rights involves a two-stage In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, "the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists." In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). "If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child." Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). "'An abuse of discretion occurs when the trial court's ruling is so arbitrary that it could not have been the result of a reasoned decision.'" In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002) (quoting Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997)). -5In reviewing both the adjudication and the disposition, findings of fact supported by competent evidence are binding on appeal even if evidence has been presented contradicting those findings. In re N.B., I.B., A.F., 195 N.C. App. 113, 116, 670 S.E.2d 923, 925 (2009). "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). I Respondent father first contends that the trial court's incorporation in the adjudication order of the findings of fact from other orders court involved orders the standard of proof. was clear, error because cogent, and not all convincing of those evidence In Dan's case, the relevant finding of fact reads: The Court further incorporates all of the Finding [sic] of Fact contained in the Court Orders in 09 JA 53 into this Order as if set forth fully herein. The contested finding of fact in Cindy's case is identical. This Court has repeatedly held that "'[a] court may take judicial notice of earlier proceedings in the same cause.'" In re J.W., K.W., 173 N.C. App. 450, 455, 619 S.E.2d 534, 539 (2005) (quoting In re Byrd, 72 N.C. App. 277, 279, 324 S.E.2d 273, 276 (1985)), aff d per curiam, 360 N.C. 361, 625 S.E.2d 780 -6(2006). even A trial court may take judicial notice of prior orders where those orders are based on a lower evidentiary standard since "[i]n a bench trial, it is presumed that the judge disregarded any incompetent evidence." N.C. App. 288, 298, 536 S.E.2d 838, 845 In re Huff, 140 (2000). The only limitation is that the court may not terminate parental rights based solely on prior court orders and reports, but must have some oral testimony before it. In re A.M., J.M., 192 N.C. App. 538, 541-42, 665 S.E.2d 534, 535-36 (2008). Here, the trial court was allowed to take judicial notice of prior orders in the same case, and its decision to acknowledge findings made in previous proceedings is not error. While respondent concedes that prior orders may be judicially noticed, he reasonable argues that the dispute" and, therefore, incompetent evidence. prior orders "were everything subject to them was in However, respondent does not point to a single example or cite any authority that would support his position. Our review of the order indicates that the trial court primarily relied upon those orders to set out the procedural history of the case. In support of the court's ultimate determination, the trial court made numerous additional findings of fact from evidence presented at the termination hearing. The -7court, therefore, did not improperly rely solely on findings from prior orders in determining that grounds existed to terminate respondent's parental rights. II Respondent father next challenges the adequacy of the trial court's findings of fact to support the conclusions of law establishing the existence of grounds to terminate respondent's parental rights. We first address the trial court's determination that grounds existed under N.C. Gen. Stat. § 7B1111(a)(2), which provides that a trial court may terminate parental rights upon finding: The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty. To terminate parental rights under N.C. Gen. Stat. § 7B1111(a)(2), the trial court must make findings of fact addressing "willfulness" and lack of "reasonable progress under the circumstances" following the initial removal. Anderson, 151 N.C. App. at 99, 564 S.E.2d at 603. In re The element of "willfulness" imports knowledge and a stubborn resistance, In -8re Matherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002), and "is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort." In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001). Here, the trial court found that respondent parents had been "ordered to submit to random drug screens; sign medical releases; demonstrate that they are capable of providing medical care; obtain housing; advise DSS of any change of address; pay $50 per month collaterals; in child participate support; in have visitation no with contact the with juvenile; participate in budget counseling and provide a written budget; be present drivers' for licenses; mobile home." SAFE all and/or Respondent medical and appointments; submit reinstate documentation their regarding their Respondent father was also "ordered to attend the GREAT father program was later to address ordered domestic to violence." "attend parenting classes; submit verification of income; [and] attend substance abuse counseling and follow all therapist recommendations." The findings of fact contested by respondent deal with his failure to make progress with respect to these requirements. The court made the following pertinent findings in Dan's and Cindy's orders: [33, 28] Respondent Parents supervised visitation with were this provided juvenile -9when this juvenile was placed into the custody of DSS. During the pendency of this case, Respondent Parents never made sufficient progress to be able to have unsupervised visitation with this juvenile. [34, 29] Since this juvenile was taken into custody, Respondent Parents have not had a consistent or sustained period where they were not abusing controlled substances. . . . . [39, 34] Over the last [27, 19] months, the Respondent Parents have willfully failed to comply with the orders of this court; and have willfully failed to adequately address or correct those conditions which led to the removal of this juvenile from the home. Particularly, Respondent Parents have continued to abuse controlled substances; have not obtained stable housing or employment; have not addressed issues related to domestic violence; and have not demonstrated an ability to safely and appropriately parent this juvenile . . . . Respondent also has contested the following findings Cindy's adjudication order: 26. As of this day, Respondent Mother continues to abuse controlled substances; Respondent Parents are not participating in substance abuse treatment; have not participated in a program to address domestic violence; do not have drivers' licenses; have not obtained stable housing or employment; have not presented a written budget; and have not demonstrated that they are able to parent this juvenile in a safe or stable home. . . . . in -1032. Respondent Father has been gainfully employed in various capacities since this juvenile was placed into foster care. Particularly, Respondent Father has worked at Garris Construction, for Pastor Walston; as a property manager; and in his own scrap metal business. Respondent Father has never paid child support for this juvenile. After reviewing the record, we hold that all of findings are supported by clear and convincing evidence. these Ms. Phyllis Holmes, a DSS placement worker, testified regarding the lack of progress regarding supervision; respondent father's continued drug use, including while participating in a methadone program; respondent father's failure to comply with orders of the court regarding stable housing, employment, domestic violence, necessary medical care, obtaining a driver's license, and presenting a written budget; and respondent father's failure to pay child support for Cindy. Respondent father presents no specific basis for his assertion that the findings are unsupported other than a claim that the trial court did not take into account his circumstances during his recent incarceration. Respondent father contends that during his incarceration he was drug-free, but "unable to meaningfully participate in the children's lives or cooperate with DSS." According to respondent father, the findings made by the court, therefore, did "not reflect the state of affairs at the time of the termination hearing." -11"[A] respondent's incarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care." In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987), superseded by statute on other grounds as stated in In re D.J.D., 171 N.C. App. 230, 615 S.E.2d 26 (2005). The record in this case reflects that respondent was not incarcerated at the time of a permanency planning review hearing held on 8 June 2011, when the trial court found that respondent had absconded from his probation and was in hiding. Since the petitions to terminate were filed in August 2011, only a few months after respondent was deemed an absconder, it is apparent that for most of the time period after the children were taken into custody, respondent was free and should have been able to work on his court-ordered obligations. Instead, the record is replete with examples of respondent's failure to comply with various aspects of his case plan. Given respondent's significant period of demonstrated time, he lack cannot of now progress insist over that a his relatively brief period of incarceration, which forced him to be drug-free, from the middle of 2011 to the termination hearing in November 2011 suggests either that he was making progress or that any inability incarceration. to comply with his plan was due to the -12We hold the trial court's findings of fact are supported by competent evidence. Therefore, properly determined that we conclude grounds the existed trial to court terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B1111(a)(2). in Since we have held that the trial court did not err concluding that grounds exist to terminate respondent's parental rights on the basis of a failure to make reasonable progress, it is unnecessary to address the other grounds for termination. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (a finding of one statutory ground is sufficient to support the termination of parental rights). III Respondent lastly contends that the trial court abused its discretion in determining that the termination of respondent's parental rights was in the best interests of the children. Once a trial court adjudicates that one or more grounds exist upon which to base termination, the court must then determine whether termination is in the best interests of the child. Stat. § 7B-1110(a) consider regarding" the (2011). following those "In criteria factors deemed each case, and make relevant, the N.C. Gen. court written shall findings including the likelihood of adoption of the juvenile, the bond between the -13juvenile and the parent, and the relationship juvenile and the prospective adoptive parent. between the Id. Here, the trial court made written findings addressing each of the factors contained in N.C. Gen. Stat. § 7B-1110(a), a point conceded by respondent. the evidence employment presented is overlooked. a Respondent argues instead that regarding significant his factor sobriety that and should stable not be He contends that his progress, coupled with the bond and love between himself and the children, makes it "likely that he could achieve reunification with the children within a reasonable time." The adoption trial of court, each however, child is found high, that the termination likelihood of of respondent's parental rights will aid in the accomplishment of the permanent plan of adoption, there is a minimal bond between respondent and Dan and no bond between respondent and Cindy, and the relationship between each juvenile and the respective adoptive parents conclude is "excellent." the trial court Based on did not the court's abuse its findings, we discretion in deciding that termination of respondent's parental rights is in the best interests of Dan and Cindy. Affirmed. Judges McGEE and McCULLOUGH concur. -14Report per Rule 30(e).
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