IN THE MATTER OF: A.G.M. and A.L.M
Heard in the Court of Appeals May 26, 2015
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Guilford County, Nos. 11 JT 5-6.
Mercedes O. Chut for Petitioner-Appellee Guilford County Department of Health and Human Services.
Parker Poe Adams & Bernstein LLP, by Matthew W. Wolfe, for Guardian ad Litem.
Mark Hayes for Respondent-Appellant Mother.
McGEE, Chief Judge. Judges STEPHENS and DAVIS concur.
Appeal by Respondent-Mother from order entered 4 September 2014 by Judge Betty J. Brown in District Court, Guilford County. Heard in the Court of Appeals 26 May 2015.
McGEE, Chief Judge.
Respondent-Mother (" Respondent" ) appeals from the trial court's order terminating her parental rights to her minor children A.G.M. and A.L.M. (" the children" ). With respect to the termination of Respondent's parental rights, we reverse and remand for further proceedings. In all other respects, we affirm.
The Guilford County Department of Health and Human Services (" DSS" ) purportedly obtained nonsecure custody of the children on 15 January 2011, after receiving a report that Respondent had been arrested, was using crack cocaine, and did not have an alternative childcare arrangement. Thereafter, the children were purportedly adjudicated neglected and dependent juveniles, and placed in foster care. After a series of review
hearings, the trial court changed the children's permanent plan to adoption on 29 March 2012. Since the children were first taken into DSS's physical custody, Respondent spent the following periods of time incarcerated: 19 January 2011 to 24 April 2011, and 20 June 2011 to 25 January 2013. While incarcerated, Respondent participated in classes relating to substance abuse, anger management, domestic violence, preventing recidivism, and parent-child nurturing. Respondent also " pretty frequent[ly]" sent cards, letters, drawings and presents to the children while she was incarcerated. Sometime subsequent to Respondent's release from prison, she ceased sending things to the children after she was told the items were not being shown to the children, but were being kept in " life books" for the children in case it should be decided at some future date that the children could have those correspondences and items.
DSS filed petitions to terminate Respondent's parental rights. However, on 28 September 2012, Respondent's attorney filed a motion to dismiss the petitions for lack of subject matter jurisdiction because the children had previously been the subject of juvenile proceedings in Kentucky, and there was no evidence that Kentucky had terminated its jurisdiction as required by the Uniform Child Custody Jurisdiction and Enforcement Act (" UCCJEA" ). DSS and the trial court apparently believed the proceedings in Kentucky had been closed by an order entered 22 September 2009. However, because Kentucky had not relinquished jurisdiction in those juvenile proceedings, the trial court in North Carolina lacked jurisdiction to address the matters before it. On 31 January 2013, DSS simultaneously dismissed the proceeding purportedly initiated in January 2011, and filed requests for nonsecure custody of the children based on the trial court's authority to exercise temporary emergency jurisdiction pursuant to N.C. Gen. Stat. § 50A-204. The trial court heard DSS's request on 31 January 2013, and entered an order on 25 February 2013 granting DSS temporary nonsecure custody of the children pursuant to its emergency temporary jurisdiction.
DSS filed new petitions on 28 March 2013, alleging that the children were neglected and dependent juveniles. The petitions alleged that the children had been in DSS custody since Respondent's arrest on 15 January 2011, both of the children's parents had histories of substance abuse, and both the children's presumptive father and Respondent's then current husband had committed acts of domestic violence against Respondent. It was further alleged in the petition that Respondent had been incarcerated from 19 January 2011 to 15 March 2011, and from 20 June 2011 until the date of the petition, which limited her ability to meet the requirements deemed necessary for reunification by DSS; that she had failed to maintain contact with DSS or comply with the requirements of her DSS service agreement; and that she had a substantial history with social services in Kentucky.
The trial court in Kentucky entered valid orders transferring jurisdiction to North Carolina on 4 October 2013, though those orders were not filed in Guilford County until some later date. The trial court entered its first valid order adjudicating the children neglected and dependent juveniles on 10 December 2013, following a 7 November 2013 hearing on DSS's 28 March 2013 petitions for nonsecure custody.
The trial court ruled that the children were neglected, as defined by N.C. Gen. Stat. § 7B-101(15), because they " do not receive proper care, supervision or discipline from [their] parents; " that the children " have been abandoned by their parents; " and that they had " lived in an environment injurious to [their] welfare while in the home of their mother." The trial court ruled that the children were dependent, as defined by N.C. Gen. Stat. § 7B-101(9), " in that [they] are in need of assistance or placement because [their] parents are unable to provide for their care or supervision and lack an appropriate alternative child care arrangement." The
trial court further ruled: " Since the filing of the Juvenile Petition[s], [DSS] has made reasonable efforts to achieve permanence for the juveniles and to eliminate placement." The trial court denied Respondent visitation because " it has been years since the juveniles have seen [Respondent]." The trial court then ordered:
5. If [Respondent] desires visitation then she must make contact with the juvenile[s'] therapist . . . and DSS to determine if and when any visitation would be considered or appropriate given that the juveniles have not had any contact with the mother in a very long time.
6. [Respondent] is to engage in therapy with a therapist that has been pre-approved by [DSS]. The mother is to submit the therapist names and contact information to DSS for approval.
. . . .
8. [DSS] has made and shall continue to make reasonable efforts to achieve permanence for the [children].
. . . .
10. This matter is to return to [c]ourt for a Dispositional/Permanency Planning Hearing on December 5, 2013.
The trial court entered this adjudication order on 10 December 2013. By this adjudication order, the children were finally placed in the temporary custody of DSS pursuant to an adjudication of neglect and dependency entered by a North Carolina court with jurisdiction.
The trial court conducted a " Disposition and Permanency Planning Review Hearing" on 5 December 2013, less than one month following the 7 November 2013 adjudication hearing, and five days before entry and service of the adjudication order. Respondent was not present at that hearing. The trial court entered an order from the disposition and permanency planning hearing on 4 February 2014, nearly two months after having conducted the hearing. In its 4 February 2014 order from the 5 December 2013 disposition and permanency planning hearing, the trial court stated that, relevant to Respondent, " [t]he conditions that led to the juveniles' coming into custody" were:
o [Respondent's] criminal history and incarceration
o [Respondent's] substance abuse
o Domestic violence between [Respondent] and her husband [the children's stepfather]
o History of domestic violence between [Respondent] and [the presumptive father]
o Prior CPS history in Kentucky
The trial court found that: " After [Respondent's] release from prison [on 25 January 2013], [DSS] sent [Respondent] a second full service agreement in July 2013 (the first full service agreement having been signed in June 2011). DSS sent [Respondent] a full service agreement again in October 2013[.]" The trial court then listed the components of the service agreements sent to Respondent by DSS, which included obtaining a mental health evaluation and following up as needed, domestic violence counseling, showing an ability to provide the children with a safe environment, maintaining safe and stable housing, parenting classes, individual counseling related to inappropriate sexual conduct in the presence of the children, stable employment, payment of fines and child support, developing a household budget, submitting to a drug and alcohol assessment and complying with recommendations, and submitting to random drug screens. The trial court found that Respondent had failed to comply with many of the provisions in the service agreement. The trial court also found: " It is most appropriate for termination of parental rights to be considered at this hearing as a result of the children having been in the custody of DSS for 31 months and the lack of permanence in their lives."
The trial court ruled that " [s]ince the filing of the Juvenile Petition[s], [DSS] has made reasonable efforts to achieve permanence for the juveniles and to eliminate the need for placement." The trial court changed the " permanent plan to . . . adoption with a concurrent plan of reunification with [Respondent]." The trial court ordered that DSS was " to continue to make reasonable efforts
to reunify the juveniles with [Respondent,]" but that DSS was " to proceed with seeking termination of parental rights within sixty days of this hearing." The trial court ordered that, if Respondent desired reunification, she " shall sign and return the service agreement directly to [DSS] and engage in the service components of that service agreement[,]" and that if Respondent desired visitation she " must make contact with the juveniles' therapist . . . to schedule a session with [her] to explore if and when any visitation should be considered appropriate." Although the hearing was conducted on 5 December 2013, the order was not signed by the trial court until 3 February 2014, and was not entered until 4 February 2014. The certificate of service indicates that the disposition and permanency planning order was served on Respondent by depositing it with the United States Postal Service on 5 February 2014.
On 7 February 2014, two days after Respondent was served with the disposition and permanency planning order by mail, DSS filed a motion in the cause seeking termination of Respondent's parental rights. The motion alleged that Respondent's rights were subject to termination on the grounds of neglect, willfully leaving the children in placement outside the home for more than twelve months without making reasonable progress, willfully failing to pay a reasonable portion of the children's care for six ...