                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA17-688

                                   Filed: 6 February 2018

Guilford County, No. 16 JT 59

IN THE MATTER OF: M.J.S.M.


       Appeal by Respondent-Parents from order entered 18 April 2017 by Judge K.

Michelle Fletcher in Guilford County District Court. Heard in the Court of Appeals

18 January 2018.


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

       Batch, Poore & Williams, PC Sydney Batch, for respondent-appellant mother.

       Diepenbrock Law Office, by J. Thomas Diepenbrock, for respondent-appellant
       father.

       K&L Gates LLP, by Hillary Dawe, for guardian ad litem.


       HUNTER, JR., Robert N., Judge.


       Respondent-Parents appeal from an order terminating their parental rights to

their minor child, M.J.S.M. (“Mary”).1 On appeal, Respondent-Mother argues the

trial court erred in terminating her parental rights on the grounds of neglect, willful

failure to pay a reasonable portion of the cost of Mary’s care, and dependency.




       1  The parties stipulated to this pseudonym for the minor child, pursuant to N.C.R. App. P.
3.1(b) (2017).
                                     IN RE: M.J.S.M.

                                     Opinion of the Court



Respondent-Father’s counsel filed a no-merit brief, pursuant to North Carolina Rule

of Appellate Procedure 3.1(d). N.C.R. App. P. 3.1(d) (2017). We affirm.

                    I. Factual and Procedural Background

      On 13 April 2016, petitioner Guilford County Department of Health and

Human Services (“DHHS”) filed a juvenile petition alleging five-month-old Mary to

be a neglected and dependent juvenile. The petition alleged DHHS received a Child

Protective Services (“CPS”) report after Respondent-Father choked, hit, and pushed

on the stomach of Respondent-Mother, while she was pregnant with Mary. As a

result of Respondent-Father’s actions: (1) doctors performed an emergency caesarian

section due to fetal distress; (2) Mary had no heartbeat; and (3) doctors had to

resuscitate Mary for twenty minutes, immediately after she was born.

      In late 2015 and early 2016, Respondent-Parents entered into case plans and

agreed Respondent-Father would not have any contact with Respondent-Mother or

Mary. On 13 April 2016, a DHHS social worker made an unannounced visit to

Respondent-Mother’s home and discovered Respondent-Father there. Additionally,

Respondent-Mother “failed to comply with the terms of her treatment plan, including

her failure to enroll in and attend domestic violence education[.]” Respondent-Father

“refused to complete substance abuse counselor or drug screens and has avoided

contact with [the social worker].”




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                                        IN RE: M.J.S.M.

                                       Opinion of the Court



       Consequently, DHHS filed the petition and requested nonsecure custody of

Mary “[d]ue to the ongoing substance abuse and domestic violence and the lack of

family resources to provide care and supervision.” On 13 April 2016, the court

granted nonsecure custody of Mary to DHHS.

       On 6 May 2016, Respondent-Mother entered into an out-of-home services

agreement with DHHS, replacing her prior case plan. Respondent-Mother agreed to,

inter alia: (1) submit to a psychiatric assessment and comply with any

recommendations thereof; (2) complete domestic violence programs and “not have any

contact with [Respondent-Father]”; (3) maintain safe, stable housing; (4) maintain

stable employment; (5) submit to a substance abuse assessment; and (6) attend other

DHHS programs/courses.

       On 15 September 2016, the court held a pre-adjudication, adjudication, and

dispositional hearing. In an order entered 25 October 2016, the court adjudicated

Mary as a neglected and dependent juvenile.2 Respondent-Mother failed to submit

to a psychiatric assessment, maintained contact with Respondent-Father, lived in the

same apartment complex as Respondent-Father, failed to attend multiple

appointments or did not engage in therapy sessions, failed to maintain employment,

and used drugs. Respondent-Father failed to submit to a parenting/psychological




       2 Respondent-Mother stipulated to the allegations in the DHHS petition and consented to the
adjudication.

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                                      IN RE: M.J.S.M.

                                     Opinion of the Court



assessment, failed to enroll in domestic violence classes, maintained contact with

Respondent-Mother, and tested positive for marijuana in a drug screen.

        The court ordered Respondent-Parents to comply with their case plans and

permitted Respondent-Mother to have supervised visitation with Mary, who

remained in DHHS custody, twice per week. The court did not permit Respondent-

Father to have any contact with Mary. The court set the primary permanent plan as

reunification.

        On 20 December 2016, the trial court entered a permanency planning review

order.3 The court found Respondent-Parents showed a “lack of compliance” with their

case plans. The court changed the primary permanent plan to adoption, with a

secondary plan of reunification. The court ordered DHHS to file a termination of

parental rights petition within sixty days.         The court also reduced Respondent-

Mother’s visitation to once per week.

        On 27 January 2017, DHHS filed a motion seeking to terminate Respondent-

Parents’ parental rights to Mary on the grounds of neglect, willful failure to pay a

reasonable portion of the cost of Mary’s care, and dependency. See N.C. Gen. Stat. §

7B-1111(a)(1), (3), (6) (2015). The court held a hearing for the motion on 20 March

2017.




        3
        The court entered an amended permanency planning order on 17 January 2017, but this did
not materially change the substance of the order.

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                                   IN RE: M.J.S.M.

                                  Opinion of the Court



      On 18 April 2017, the trial court entered an order terminating Respondent-

Mother’s parental rights based upon all three grounds alleged by DHHS and

Respondent-Father’s parental rights based upon neglect and willful failure to pay a

reasonable portion of the cost of Mary’s care. Respondent-Parents entered timely

notices of appeal.

                              II. Standard of Review

      “The standard for review in termination of parental rights cases is

whether the findings of fact are supported by clear, cogent and convincing

evidence and whether these findings, in turn, support the conclusions of law.”

In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984) (citation omitted). “If

unchallenged on appeal, findings of fact are deemed supported by competent evidence

and are binding upon this Court.” In re A.R.H.B., 186 N.C. App. 211, 214, 651 S.E.2d

247, 251 (2007) (internal quotation marks and citations omitted), appeal dismissed,

362 N.C. 235, 659 S.E.2d 433 (2008).

                                    III. Analysis

A. Respondent-Mother’s Appeal

      Respondent-Mother argues the trial court erred by concluding three grounds

existed to terminate her parental rights. We disagree.

      Pursuant to N.C. Gen Stat. § 7B-1111(a)(1), “[t]he trial court may terminate

the parental rights to a child upon a finding that the parent has neglected the child.”



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                                    IN RE: M.J.S.M.

                                   Opinion of the Court



In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (citing N.C. Gen.

Stat. § 7B-1111(a)(1)).   A neglected juvenile is defined, in relevant part, as “[a]

juvenile who does not receive proper care, supervision, or discipline from the

juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned[.]”

N.C. Gen. Stat. § 7B-101(15) (2015).

      “A finding of neglect sufficient to terminate parental rights must be based on

evidence showing neglect at the time of the termination proceeding.” In re Young, 346

N.C. 244, 248, 485 S.E.2d 612, 615 (1997 (citation omitted). However, when, as here,

the child has been removed from her parent’s custody such that it would be impossible

to show the child is currently being neglected by their parent, “a prior adjudication of

neglect may be admitted and considered by the trial court in ruling upon a later

petition to terminate parental rights on the ground of neglect.” In re Ballard, 311

N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).

      If a prior adjudication of neglect is considered, “[t]he trial court must also

consider any evidence of changed conditions in light of the evidence of prior neglect

and the probability of a repetition of neglect.” Id. at 715, 319 S.E.2d at 232 (citation

omitted). Thus, where:

             there is no evidence of neglect at the time of the
             termination proceeding . . . parental rights may
             nonetheless be terminated if there is a showing of a past
             adjudication of neglect and the trial court finds by clear and
             convincing evidence a probability of repetition of neglect if
             the juvenile were returned to [his or] her parents.


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                                    IN RE: M.J.S.M.

                                   Opinion of the Court



In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted). A

parent’s failure to make progress in completing a case plan is indicative of a likelihood

of future neglect. In re D.M.W., 173 N.C. App. 679, 688-89, 619 S.E.2d 910, 917 (2005),

rev’d per curiam per the dissent, 360 N.C. 583, 635 S.E.2d 50 (2006).

      In this case, Respondent-Mother concedes Mary was previously adjudicated a

neglected juvenile. However, she disputes the evidence at the termination hearing

demonstrated a likelihood of future neglect. The trial court made the following

finding, with respect to repetition of neglect:

             17. . . . c. There is a likelihood of the repetition of neglect
             by [Respondent-Mother], given her history of neglect, her
             failure to adequately address the issues that resulted in the
             removal of the juvenile (particularly her mental health),
             the fact that she continues to minimize the impact of the
             domestic violence between herself and the father, the fact
             that she was not truthful about contact between herself
             and the father since removal of the juvenile, and the fact
             that she is currently inconsistent with mental health
             medications and therapy.

      Respondent-Mother contends this finding is not supported by competent

evidence because she made some progress on various aspects of her case plan.

Specifically, she argues there was evidence she: (1) obtained appropriate housing, (2)

engaged in some domestic violence counseling, and (3) was taking her prescribed

medication for her mental health disorders. While Respondent-Mother is correct she

did not completely fail to work on her case plan, the evidence presented at the

termination hearing shows this work was only sporadic and inadequate.


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                                   IN RE: M.J.S.M.

                                  Opinion of the Court



      In its termination order, the trial court made specific findings regarding

Respondent-Mother’s progress on her case plan. These findings reflected, inter alia,

Respondent-Mother: (1) submitted to two psychiatric evaluations, but failed to

comply with their recommendations; (2) did not begin taking medication for her

mental health issues until March 2017; (3) completed only five of twelve sessions in

a domestic violence program; (4) continued to be seen with Respondent-Father and

downplayed his domestic abuse; (5) failed to find housing in a separate apartment

complex from Respondent-Father; (6) failed to adequately furnish her apartment; (7)

failed to complete her parenting classes; and (8) was fired from multiple jobs due to

attendance issues. Moreover, most of the limited progress cited by the trial court in

these findings did not occur until after DHHS filed its termination petition.

Respondent-Mother does not challenge these findings.

      The DHHS social worker also offered the following testimony during the

termination hearing with respect to repetition of neglect:

             Q Now, would you advise the Court how the respective
             parents have contributed to the conditions that led to the
             removal of the child?

             A Engaging in domestic violence, not addressing the
             mental health and substance issues, failing to comply with
             the safety plan and services meant to address the risk to
             the child.

             Q And the conditions that led to removal, do they continue
             to exist at this time?



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                                    IN RE: M.J.S.M.

                                   Opinion of the Court



             A Yes.

             Q And if you would describe the impact that the parents[’]
             actions or inactions in this case have had on the juvenile?

             ...

             A The mother’s continued denial of domestic violence, their
             continued meeting and minimizing the issues that brought
             the child into – into care continue to place the child at risk.

             Q So if the -- if the juvenile were to be returned to either
             parent today, would the abuse or neglect likely continue or
             be repeated?

             A Yes. If they can’t admit that there’s a problem, they
             can’t change the behavior.

      The social worker’s testimony, when considered in conjunction with the court’s

findings regarding Respondent-Mother’s lack of significant progress on her case plan,

provided sufficient support for the trial court’s determination there would be a

probable repetition of neglect if Mary was returned to her care. Accordingly, the trial

court properly terminated Respondent-Mother’s parental rights on the ground of

neglect.

      Since we conclude termination on this ground was proper, we need not address

Respondent-Mother’s arguments regarding the remaining grounds found by the trial

court. See In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990) (citation

omitted) (stating a finding of any of the separately enumerated grounds is sufficient

to support termination).      The portion of the trial court’s order terminating

Respondent-Mother’s parental rights is affirmed.

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                                   IN RE: M.J.S.M.

                                  Opinion of the Court



B. 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 conducted a

conscientious and thorough review of the record on appeal. After this review, counsel

concludes that the record contains no issue of merit on which to base an argument for

relief and the appeal would be frivolous.” Counsel asks this Court to conduct an

independent review of the record for possible error.           Additionally, counsel

demonstrated he advised Respondent-Father of his right to file written arguments

with this Court and provided him with the documents 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 the issue of whether the ground of neglect was sufficiently supported by the trial

court’s findings of fact. However, counsel acknowledges he cannot make a non-

frivolous argument that Respondent-Father’s parental rights should not be

terminated on the ground of willful failure to pay a reasonable portion of the cost of

Mary’s care. As a result, his argument as to neglect does not provide a meritorious

basis for appeal. See Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34 (citation

omitted).

      After careful review, we are unable to find any possible prejudicial error by the

trial court. As acknowledged by Respondent-Father’s counsel, the termination order



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                                   IN RE: M.J.S.M.

                                  Opinion of the Court



includes sufficient findings of fact, supported by clear, cogent, and convincing

evidence, to conclude at least one statutory ground for termination existed. Moreover,

the court made appropriate findings on each of the relevant dispositional factors and

did not abuse its discretion in assessing the child’s best interests. N.C. Gen. Stat. §

7B-1110(a) (2015).   Accordingly, we affirm the portion of the trial court’s order

terminating Respondent-Father’s parental rights.

                                   IV. Conclusion

      For the foregoing reasons, we affirm the trial court’s order terminating

Respondent-Parents’ parental rights.

      AFFIRMED.

      Judge DILLON concurs.

      Judge MURPHY concurring in part and concurring in the result in part.




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 No. COA17-688 – In re M.J.S.M.


      MURPHY, Judge, concurring in part and concurring in the result in part.


      I concur in the Majority’s opinion as it relates to Respondent-Father, and I

concur in the result as it relates to Respondent-Mother. The Majority correctly states

that “[a] parent’s failure to make progress in completing a case plan is indicative of a

likelihood of future neglect.” However, I do not agree that the Respondent-Mother’s

actions after the initial finding of neglect indicate that she has failed to make

progress. She made significant progress to improve her condition and express her

love for her child, and the findings of fact do not support the conclusion that her

parental rights should be terminated in accordance with N.C.G.S. § 7B-1111(a)(1).

Further, given her limited income, her small payments of child support for Mary were

not unreasonable and grounds do not exist to terminate her parental rights in

accordance with N.C.G.S. § 7B-1111(a)(3).

      The findings of fact, however, do support the trial court’s conclusion that

grounds existed to terminate Respondent-Mother’s parental rights in accordance

with N.C.G.S. § 7B-1111(a)(6).

      The court may terminate the parental rights upon a finding . . . [t]hat
      the parent is incapable of providing for the proper care and supervision
      of the juvenile, such that the juvenile is a dependent juvenile within the
      meaning of G.S. 7B-101, and that there is a reasonable probability that
      such incapability will continue for the foreseeable future. Incapability
      under this subdivision may be the result of substance abuse, mental
      retardation, mental illness, organic brain syndrome, or any other cause
      or condition that renders the parent unable or unavailable to parent the
      juvenile and the parent lacks an appropriate alternative child care
      arrangement.
                                     IN RE M.J.S.M.

               MURPHY, J., concurring in part and concurring in result in part



N.C.G.S.§ 7B-1111(a)(6)(2017).

Respondent-Mother continues to struggle with mental health issues that will not be

corrected in the foreseeable future, and she is incapable of providing for the proper

care and supervision of Mary, a dependent juvenile. She also lacks an alternative

child care arrangement. The trial court’s findings of fact support this conclusion of

law. Therefore, I concur in the result reached by the Majority in affirming the

termination of Respondent-Mother’s parental rights to Mary.




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