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In re A.L.L.

Court of Appeals of North Carolina

July 5, 2017

IN THE MATTER OF: A.L.L., R.J.M., R.A.M., A.O.Z., D.A.M., O.E.J.M.

          Heard in the Court of Appeals 5 June 2017.

         Appeals by Respondents Father and Mother from an Order to Terminate Parental Rights entered 14 November 2016 by Judge Betty J. Brown in Guilford County District Court; appeal by Respondent Father from orders entered 4 June 2015, 17 December 2015 and 3 June 2016 by Judge Angela C. Foster in Guilford County District Court. Guilford County, Nos. 14 JT 380-383, 15 JT 11-12

          Mercedes O. Chut, for petitioner-appellee Guilford County Department of Health and Human Services.

          Lopez Law Firm, by Daniel J. Melo, for guardian ad litem.

          Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant father.

          Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.

          INMAN, Judge.

         A North Carolina court properly exercises jurisdiction over children living in this state and alleged to be abused, neglected or dependent, even if the children were previously the subject of custody orders and continuing jurisdiction by a foreign state court, once the foreign court enters a facially valid order declining further jurisdiction.

         Respondent-mother ("Mother") appeals from an order terminating her parental rights as to her minor children A.L.L. ("Abigail"), R.J.M. ("Riley"), R.A.M. ("Robert"), A.O.Z. ("Ava"), D.A.M. ("Diana"), and O.E.J.M. ("Oscar"); Respondent-father ("Father") appeals the same order terminating his parental rights as to Abigail, Riley, and Robert[1] and seeks certiorari review of three permanency planning orders entered on 4 June 2015, 17 December 2015, and 3 June 2016 (the "Permanency Orders"). Mother contends that the trial court erred in finding that the children were dependent and that Mother had failed to make reasonable progress in correcting the conditions that led to their removal, and argues the trial court abused its discretion in determining the termination of parental rights would be in the best interests of Riley and Robert. Father contends that the trial court lacked subject matter jurisdiction to terminate his parental rights to Abigail, Riley, and Robert, and, in his petition for certiorari, contends that the trial court's permanency planning orders failed to make the requisite findings of fact to support its adjudication of the children as neglected and dependent.

         After careful review, we affirm.

         I. Factual and Procedural History

         The evidence presented to the trial court tended to show the following:

Mother gave birth to Ava in Detroit, Michigan, on 4 January 2006. In 2007, Mother began a relationship with Father and, by the end of 2009, they had two children together, Robert and Riley, also born in Michigan. In the course of the parents' relationship, four reports were made to Michigan Child Protective Services for homelessness, domestic violence, substance abuse, and mental health issues; none of the reports resulted in intervention by the Michigan agency. Father was convicted at least three times for domestic violence, including two incidents involving Mother in 2007 and 2012; he was also convicted of concealed weapon offenses in 2003 and 2010.

         Beyond domestic violence against Mother, Father also engaged in inappropriate physical disciplining of Ava and exposed the older three children to inappropriate sexual content. In August of 2012, Mother left Father and refused to allow him further contact with Robert and Riley; her departure rendered her and her children homeless. The next month, Mother gave birth to Abigail, appellants' third child in common, in Michigan.

         Shortly after Abigail was born, on 31 October 2012, Mother filed a child support and custody action against Father as to Riley and Robert in the Circuit Court for Wayne County, Michigan (the "Michigan Action"). During the pendency of the Michigan Action and while the children were in Mother's custody, three more reports were made to Michigan Child Protective Services for neglect, physical abuse, and mental health issues; none of these reports resulted in intervention by the Michigan agency.

         On 16 September 2013, the Michigan court awarded Mother sole legal and physical custody of Riley and Robert. Shortly after entry of the custody order in the Michigan Action, Mother fled the state with her four children to escape Father. Mother and the children settled in Guilford County, North Carolina.

         Father filed a motion to modify the custody order in the Michigan Action on 4 October 2013. The Michigan court held an evidentiary hearing on Father's motion on 16 April 2014 with Father present and Mother participating by phone. The Michigan court found that Father had not established grounds to regain custody, but granted Father supervised visitation rights in Winston-Salem, North Carolina, at his own expense.

         Father never exercised the visitation rights awarded by the Michigan court in 2014. He has not seen Robert or Riley since 2012, when Robert was four and Riley was three. He has never met Abigail, who is now five.

         Shortly after moving to North Carolina, Mother obtained housing assistance from Petitioner-Appellee Guilford County Department of Health and Human Services ("DHHS"), which paid her rent for three months. However, Mother was evicted in the fourth month for her failure to pay rent. Following her eviction, Mother was again living in homeless shelters with her children and became pregnant with twins by a third father in early 2014.

         On 20 September 2014, DHHS received two reports concerning Mother, Abigail, Riley, Robert, and Ava. The reports indicated that Mother had slapped four-year-old Riley, resulting in charges of misdemeanor assault on a child under the age of twelve and misdemeanor child abuse. The reports also stated that Mother threatened to kill herself and her children. A mobile crisis unit evaluated Mother at the scene of the report. Mother was involuntarily committed to a local hospital for severe depression and suspected Post Traumatic Stress Disorder ("PTSD").

         Two days later, DHHS filed a petition in Guilford County District Court alleging that Abigail, Riley, Robert, and Ava were abused, neglected, and dependent juveniles who should be removed from Mother's custody. DHHS was granted nonsecure custody as to all four children. The petition alleged that Mother "used cruel or grossly inappropriate devices or procedures to modify the behavior of a 4[-year old] child, " that the children were living in an environment injurious to their welfare, that Mother could not provide proper care, supervision, or discipline, and that Mother could not arrange for appropriate alternative care for her children.

         Mother was served with the petition on 25 September 2014 in open court during a hearing for continued nonsecure custody. Although DHHS personnel undertook diligent efforts prior to the hearing, they were unable to locate and serve Father with the petition. An adjudicatory hearing was scheduled for 20 November 2014.

         Pending the adjudicatory hearing, Mother and DHHS agreed to a case plan requiring her to undergo parenting, psychological, psychiatric, and substance abuse evaluations, to attend domestic violence counseling and parenting classes, and to secure stable housing. She was permitted visitation contingent upon a parenting/psychological evaluation and a meeting with DHHS personnel (termed a "TDM") consistent with the previously entered nonsecure custody orders. Consistent with the plan, Mother underwent all required evaluations between October and December 2014; she was diagnosed with Major Depressive Disorder, PTSD, and Alcohol Use Disorder. Mother's attendance at therapy and peer support programs was inconsistent, however, and she never enrolled in a group outpatient substance abuse program as recommended in her substance abuse evaluation.

         On 12 November 2014, counsel for DHHS sent an email to District Court Judge Angela Foster notifying her of the custody order in the Michigan Action and noting the question of whether North Carolina could exercise jurisdiction over the children. Following a phone call with a judge in Michigan, Judge Foster called the adjudicatory hearing on the 20 November 2014 docket, but continued the hearing to allow the Michigan court time to enter an order relinquishing jurisdiction to North Carolina.

         On 3 December 2014, following the telephone conference with Judge Foster, the Michigan court entered an order finding that "North Carolina is the more convenient and appropriate forum, " and therefore the Michigan court declined and relinquished further jurisdiction over the custody actions concerning Riley, Robert, and Abigail to the North Carolina court.[2] The record does not indicate whether the Michigan court notified Father that it had relinquished jurisdiction to North Carolina.

         The trial court held a pre-adjudication, adjudication and disposition hearing on 18 December 2014. Mother was present, as was a provisional attorney appointed by the court to represent Father's interests.[3] Mother consented to the adjudication of Abigail, Riley, Robert, and Ava as abused, dependent, and neglected. As memorialized by order filed 14 January 2015, the court acknowledged that the current plan for the four children was reunification, but found that Mother had not yet made sufficient progress on her case plan to order reunification.

         On 30 January 2015, Mother delivered twins Diana and Oscar. DHHS filed juvenile petitions as to the twins alleging the newborn twins were neglected and dependent on the basis of the DHHS reports and criminal charges from September 2014 and the ...

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