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In re A.A.S.

Court of Appeals of North Carolina

March 20, 2018


          Heard in the Court of Appeals 19 February 2018.

         Appeal by Respondents from order entered 25 April 2017, and appeal by Respondent-Mother from order entered 2 August 2016, by Judge J.H. Corpening, II, in District Court, New Hanover County Nos. 15 JT 314, 143, 144.

          Rebekah W. Davis for Respondent-Appellant Mother.

          Peter Wood for Respondent-Appellant Father.

          Jennifer G. Cooke for Petitioner-Appellee New Hanover County Department of Social Services.

          Parker Poe Adams & Bernstein LLP, by Catherine R.L. Lawson, for Guardian ad Litem.

          McGEE, Chief Judge.

         Respondent-Mother and Respondent-Father (together, "Respondents") appeal from order entered 25 April 2017 terminating their parental rights as to their minor children A.A.S., A.A.A.T., and J.A.W. (together, "the children"). Respondent-Mother also appeals the trial court's permanency planning order entered 2 August 2016 requiring concurrent plans of adoption and reunification. Respondent-Father's appeal relates only to A.A.S. and A.A.A.T., as he is not the biological father of J.A.W. J.A.W.'s purported father has failed to submit to a paternity test or respond to contact from the parties. He is not a party in this action.

         Respondent-Father's appellate counsel filed a no-merit brief, pursuant N.C. R. App. P. 3.1(d) following a stated thorough review of the record. Counsel demonstrated he informed Respondent-Father of his right to personally file a brief within thirty days. Counsel asks this Court to conduct an independent review of the record for possible error. Respondent-Father has failed to file his own written arguments.

         I. Factual and Procedural Background

         Respondents moved to North Carolina in June 2015 when A.A.A.T. was about eight months old and J.A.W. was about three years old. A.A.S. had not yet been born. After moving to North Carolina, the family was homeless for around two weeks and resided in a Salvation Army shelter ("the shelter"). While at the shelter, Respondent-Father was observed shaking A.A.A.T. on 3 June 2015. Soon thereafter, Respondent-Mother was seen hitting J.A.W. on the head and dragging him by his shirt. As a result of a domestic violence incident between Respondents, the family was discharged from the shelter. The New Hanover County Department of Social Services ("DSS") filed a neglect and dependency petition on 10 June 2015 and assumed non-secure custody of A.A.A.T. and J.A.W.

         Respondents were required to complete Comprehensive Clinical Assessments and to participate in parenting classes. Respondent-Mother completed the assessment on 2 July 2015 and was diagnosed with "major depressive disorder, recurrent moderate." The assessment recommended that Respondent-Mother undergo a psychological evaluation and continue parenting classes. The psychological evaluation was completed on 7 October 2015 and found that Respondent-Mother had an IQ of 57, which "places her below the 1st percentile . . . and is described as extremely low intelligence." The psychological evaluation recommended that, after parenting classes, Respondent-Mother receive follow-up, one-on-one instruction in a therapy setting. Finally, the psychological evaluation noted that Respondent-Mother's level of intellectual functioning "will necessarily slow the rate and degree of adaptive change that can occur" and that "regular contact and consistent support is essential."

         Respondent-Father completed his Comprehensive Clinical Assessment on 10 September 2015 and received a psychological evaluation on 21 October 2015. The evaluation found that Respondent-Father was "extremely low functioning" and "struggled on a measure of common sense, judgment and moral reasoning." The psychologist noted that "the combination of two individuals with limited cognitive abilities may be problematic, especially when tasks arise that are complex and/or require the input/contributions from both parents."

         A.A.S. was born to Respondents on 30 December 2015. DSS filed a Juvenile Petition on 31 December 2015 alleging neglect due to the lack of progress made by Respondents in a prior case and the continued injurious environment. DSS was awarded non-secure custody of A.A.S. and she was adjudicated a neglected juvenile on 10 February 2016.

         A permanency planning hearing involving all three children was held on 14 July 2016 and the trial court entered an order on 2 August 2016 ("the 2 August 2016 order"). The 2 August 2016 order found that both DSS and the guardian ad litem recommended a primary plan of adoption with a concurrent plan of reunification. The trial court made numerous findings of fact supporting a plan of adoption, including that Respondent-Mother had ignored the medical needs of the children, was not financially stable, was not cooperative in following her case plan, had continually tested positive for drugs, and that her parenting skills had not sufficiently improved. As a result, the trial court ordered that the permanent plan would be adoption with a concurrent plan of reunification and that DSS should proceed with a termination of parental rights action.

         A subsequent permanency planning hearing was held on 15 December 2016 and an order was filed on 4 January 2017 ("the 4 January 2017 order"). This order maintained the prior custody arrangement and noted that DSS had made reasonable and appropriate efforts to implement the permanent plan.

         DSS filed a Petition to Terminate Parental Rights of Respondents on 15 August 2016. DSS alleged in the petition that there were sufficient facts to warrant a determination that grounds existed for the termination of parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), (5), (6), and (7) (2015), and hearings were held on 19 January 2017 and 24 February 2017 ("the termination hearings"). The trial court entered an order terminating Respondents' parental rights on 25 April 2017 ("the 25 April 2017 order").

         II. Analysis

         A. Respondent-Father's Appeal

         Counsel for Respondent-Father filed a no-merit brief on his behalf, pursuant to N.C. R. App. P. 3.1(d), stating "[t]he undersigned counsel has made a conscientious and thorough review of the [r]ecord on [a]ppeal . . . . Counsel has concluded that there is no issue of merit on which to base an argument for relief and that this appeal would be frivolous." Counsel asks this Court to "[r]eview the case to determine whether counsel overlooked a valid issue that requires reversal." Additionally, counsel demonstrated that he advised Respondent-Father of his right to file written arguments with this Court and provided him with the information necessary to do so. Respondent-Father failed to file his own written arguments.

         Consistent with the requirements of Rule 3.1(d), counsel directs our attention to two issues: (1) whether the trial court erred in concluding that grounds existed to terminate Respondent-Father's parental rights and (2) whether the trial court abused its discretion in determining that it was in the children's best interests to terminate Respondent-Father's parental rights. However, counsel acknowledges he cannot make a non-frivolous argument that no grounds existed sufficient to terminate Respondent-Father's parental rights or that it was not in the children's best interests to terminate his parental rights.

         We do not find any possible error by the trial court. The 25 April 2017 order includes sufficient findings of fact, supported by clear, cogent, and convincing evidence to conclude that at least one statutory ground for termination existed under N.C. G.S. § 7B-1111(a)(1). See In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233-34 (1990). Moreover, the trial court made appropriate findings on each of the relevant dispositional factors and did not abuse its discretion in assessing the children's best interests. N.C. Gen. Stat. § 7B-1110(a) (2015). See In re S.R., 207 N.C.App. 102, 109-10, 698 S.E.2d 535, 541 (2010). Accordingly, we affirm the trial court's order as to the termination of Respondent-Father's parental rights.

         B. Respondent-Mother's Appeal - Cessation of Reunification Efforts

         Respondent-Mother first argues that the trial court failed to make essential findings after it "implicitly eliminated reunification as a permanent plan and ceased reunification efforts" in the 2 August 2016 order. N.C. Gen. Stat. § 7B-906.2(b) (2015) requires that at a permanency planning hearing, a trial court must adopt concurrent permanent plans and identify a primary and secondary plan. Reunification must remain one of the identified plans unless the trial court "made findings under [ N.C. Gen. Stat. § 7B-901(c) (2015)] or makes written findings that reunification efforts clearly would be unsuccessful or would be inconsistent with the juvenile's health or safety." N.C. G.S. § 7B-906.2(b). While reunification remained one of the two permanent plans, Respondent-Mother argues that it is self-contradictory to commence termination of parental ...

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