IN RE: K.H. (2024)

Respondent-father (“Father”) appeals from the trial court's order terminating his parental rights to his son alleging that the trial court's findings do not support a conclusion that grounds existed to terminate Father's parental rights or that it was in his son's best interest to terminate Father's parental rights. Mother is not a party to this appeal. For the reasons set forth below, we affirm the trial court's order.

I. Factual and Procedural Background

Father had been a single dad to his two natural children and adopted nephew since the death of their mother in 2019. Kai ¹ was born 2 January 2022 to Mother, a woman that Father had been dating. Mother did not name a father for Kai on the birth certificate. Kai was born two months premature and had serious medical issues due to Mother’ drug use during pregnancy. On the day Kai was born, Father had been drinking and was unsure of what drugs Mother had taken that day. Mother and Kai both tested positive for amphetamines at birth. Kai was admitted to the Neonatal Intensive Care Unit following his birth. On 4 January 2022, the hospital contacted the Rowan County Department of Social Service (“RCDSS”) because of concerns that Mother was not capable of caring for her son.

During the initial assessment RCDSS had concerns about releasing Kai to either parent. They noted that Mother had a sixteen-year drug history with multiple attempts at rehabilitation. In addition, she had four other children, one in the legal custody of Cabarrus County Department of Social Services and three who had been in a safety placement with their maternal grandmother. However, the grandmother indicated to RCDSS that she could no longer care for them and her husband was currently under investigation for sexual abuse against two of the children. RCDSS noted that “[b]ecause of significant criminal history and CPS history, [Kai] cannot be placed with [Father] until paternity is confirmed and/or the court orders placement.” However, the details of Father's criminal or CPS history were not noted.

The hospital reported that Father “consistently” called for updates and visited Kai during his hospitalization. In addition, Father cooperated with paternity testing.

On 14 March 2022, RCDSS filed a petition alleging that Kai and three of his maternal half-siblings were neglected and dependent in that they were exposed to or likely to be exposed to substantial risk of injury and that their parent or caretaker had failed to or is unable to provide supervision and protection. Specifically in regard to Kai, RCDSS’ concerns included the fact that he tested positive for Amphetamines at birth as did Mother, Mother had a long term, serious drug problem, she was in an ongoing contentious relationship with Father and neither Mother or Father had taken an active role in learning about or participating in the specialized care required for Kai at the hospital due to his many medical needs. The children were placed in the custody of RCDSS pending a hearing on 17 March 2022, although Kai was still in inpatient care at the hospital.

During the Non-secure Custody Hearing on 17 March 2022 the results of paternity testing definitively determined that Father was Kai's biological father. Father consented to continued nonsecure custody with RCDSS but asked for placement with him as soon as possible. He agreed to submit to drug testing and to learn how to operate the medical equipment that would be needed by Kai upon his discharge from the hospital. The trial court provided for supervised visitation.

On 18 March 2022 Father attended an initial Child and Family Team meeting. He did not enter into a case plan or visitation plan but stated he understood that RCDSS would be recommending for him to complete tasks towards reunification.

Social Worker Belk reported that Father was not considered a “non-offending” parent because there were concerns regarding his ability to provide a safe and stable home. Concerns included inconsistent communication with RCDSS and limited visitation with Kai at the hospital, self-reported drinking of alcohol on the day of Kai's birth and continuing a dysfunctional relationship with Mother which included domestic discord. In addition, she noted Father had been “obstinate and hostile” with her and other RCDSS staff and surmised that the process “does not have to be as difficult as it has been.” Ms. Belk also told Father that RCDSS would “not even consider” placing Kai with him if Mother was in his home. That same day as the initial Child and Family Team meeting, Kai was released from the hospital and placed with an experienced foster parent to medically fragile children; the foster placement was in Rowan County approximately one hour from Father's home.

Father continued to have contentious interactions with Ms. Belk and RCDSS but remained confident that Kai would be placed with him. Father objected to entering into a case plan with RCDSS because, in his view, he was not at fault in the events that led to Kai's placement. He also, did not believe that RCDSS should dictate his relationship with Mother.

Father continued to interact with Mother, and an incident in April 2022 resulted in a 911 call because Mother had communicated threats to Father. On 25 April 2022, RCDSS received a report regarding inappropriate supervision of Father's other three children who were in his care.

On 26 April 2022 Father brought Mother to RCDSS for her visit with Kai and demanded that he be included as well. Staff reminded him that because of the domestic discord between the parents they were required to have separate visitation. Father lost his temper and began screaming. He demanded to see a supervisor and demanded that the supervisor remove Social Worker Belk from his case. The supervisor refused and Father was required to leave by law enforcement.

Father did not utilize his once-a-week visitation, setting up meetings but always canceling or not showing up. Ms. Belk put protocols into place such as requiring phone confirmation the night before or having Father arrive for visitation prior to the foster parent and Kai leaving home, to ensure they did not have to travel if Father was not present.

On 30 June 2022 the Guardian ad Litem spoke to Father by phone. Father reported that he had started anger management classes. He explained that he had been “frustrated” for the past few months and felt like his child was “taken for no reason.” Father appeared more compliant and agreed to continue anger management, apologizing for his outburst at the RCDSS office. He reportedly understood that he needed to maintain distance between himself and Mother.

On 7 July 2022 an adjudication hearing was held for all of Mother's children including Kai. Father did not attend the hearing nor did his attorney. The trial court ordered “[Father] will engage with RCDSS and enter into and Out of Home Family Services Agreement and visitation plan. [Father] is allowed bi-weekly supervised visitation supervised by the RCDSS. [Father] will confirm his visitation with the RCDSS or his visit will be cancelled.”

On 4 October 2022, the trial court entered its order adjudicating the children, including Kai, to be neglected and dependent juveniles as defined in N.C. Gen. Stat. § 7B-101 (15) and (9). The trial court entered its dispositional order the same day and noted concerns about Father's ability to care for Kai which included his failure to learn how to care for Kai's special needs from the nurses as well as his ongoing relationship with Mother. Father and Mother's relationship had previously resulted in domestic violence complaints against Mother for assaulting Father as well as complaints against Mother's previous boyfriends for assaulting Father. The trial court continued Kai in the custody of RCDSS and ordered that Father “shall engage with RCDSS and enter into and OHFSA case plan and visitation plan with RCDSS.”

On 22 September 2022 a permanency planning hearing was held. Father appeared at court the morning of the hearing; however, his attorney released him prior to the hearing. In its findings of fact, the trial court noted that Mother reported that she was no longer in a relationship with Father and was living in Kannapolis. The trial court also noted that Father was not currently engaged with RCDSS and had not entered into an OHFSA case plan. Additionally, in July 2022, Father's other three children were taken into RCDSS custody due to concerns of neglect and inappropriate discipline. Father had not seen Kai in seven months but did text Social Worker Belk occasionally for updates. Father also had not reported any employment. The trial court found RCDSS had made reasonable efforts thus far and ordered that they continue to provide reasonable efforts to effectuate the case plan. The trial court ordered reunification to continue to be the primary plan. The trial court laid out specific tasks for Mother regarding each of her children; and ordered that regarding Kai, “[Father] will engage with the RCDSS and enter into and OHFSA case plan and visitation plan with RCDSS.”

On 1 December 2022, Father waived his right to counsel by signing a Waiver of Parent's Right to Counsel and began representing himself in the juvenile proceedings. He did not attend the permanency planning hearing on 15 December 2022. The trial court found that Father had not seen Kai in nine months. His older three children were all in RCDSS custody as well, and he had not engaged with RCDSS and had refused to enter an OHFSA case plan for any of the children. RCDSS noted the main concerns for Father were the home environment due to the domestic discord between him and Mother and his lack of employment. During this hearing, the trial court changed the primary plan for Kai to adoption with reunification being the secondary plan. The trial court continued to include specific goals for Mother related to her case plan and visitation plan. Since Father had refused to enter a case plan or a visitation plan, the order stated:

Should [Father] wish to reunify with Kai he will engage with the RCDSS and enter an OHFSA case plan and visitation plan with the RCDSS. Visitation with [Father] will hereby cease until he schedules and attends an office visit to enter a visitation plan and OHFSA case plan. [Father] will sign releases of information so that the RCDSS, GAL and the courts can review any assessment and treatment progress, including substance abuse and mental health information, if applicable.

Father scheduled a meeting with RCDSS on 10 February 2023. Father attended the meeting but when the social worker began explaining the case plan and visitation plan, he walked out of the meeting after three minutes and refused to sign either.

On 13 June 2023, RCDSS filed a termination of parental rights petition against both Mother and Father alleging that Kai was neglected within the meaning of N.C. Gen. Stat. § 7B-101(15) and 7B-101(9) and willfully left in juvenile foster care outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress has been made under the circumstances.

A permanency planning hearing was held 15 June 2023. Father attended the hearing and represented himself. The trial court found that Kai remained in the same foster home, now prospective adoptive home and had been there fifteen months with all his needs met and Father still had not seen Kai and refused to enter a case plan or visitation plan. The trial court ordered that the primary plan continue to be adoption with the secondary plan being reunification with either parent. The trial court ordered that should Father wish to reunify with Kai he must engage with the RCDSS and enter into an OHFSA case plan and visitation plan with RCDSS.

On 12 October 2023 Father requested appointment of counsel for the termination proceeding. On his affidavit of indigency, Father reported he had obtained employment at Texas Roadhouse in September of 2023. On 24 October 2023, Father attended an appointment at Daymark Recovery Services and was diagnosed with mild “adjustment disorder, unspecified” for which he was recommended treatment and “lymphoma.”

The termination of parental rights hearing was held 6 November 2023. The RCDSS social worker on the case and the social work supervisor both testified at length about their multiple and continuous attempts to meet with Father and arrange visitation between Kai and Father; Father continuously refused to sign any paperwork and did not attend visitations. The social worker further testified that Father has never visited Kai since his release from the hospital, has not attended any medical appointments, has no knowledge or training concerning Kai's medical or developmental needs and has not paid any child support. In addition, the foster mother testified about her willingness to support visitation and communication between Father and Kai, but Father never engaged. Father testified that RCDSS would not set up a visitation schedule unless he signed a case plan, which he would not sign because he considered the provisions to be irrelevant to the issues regarding Kai's removal.

The trial court found two grounds existed for terminating Mother's and Father's parental rights: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1); and (2) willfully leaving Kai in foster care without making reasonable progress toward correcting the conditions which led to removal pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). The termination of parental rights order was filed on 19 December 2023, and Father entered timely notice of appeal on 11 January 2024.

II. Analysis

On appeal Father argues that the trial court erred in concluding that (1) Father did not make reasonable progress when he did not have a judicially adopted case plan and (2) repetition of neglect was likely when Father had successfully addressed the chief concerns of RCDSS.

A. Standard of Review

When reviewing termination of parental rights orders the standard of review 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. We then consider, based on the grounds found for termination, whether the trial court abused its discretion in finding termination to be in the best interest of the child.

In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004) (citation and quotation marks omitted).

N.C. Gen. Stat. § 7B-1111(a) sets forth eleven independent grounds for termination of parental rights. A Termination of Parental Rights (“TPR”) order is sufficiently supported when any one of the eleven grounds has been proven. In re K.R.C., 374 N.C. 849, 854, 845 S.E.2d 56, 59 (2020). In the case sub judice, the trial court found two grounds for terminating Father's parental rights, neglect and willfully leaving Kai in foster care more than twelve months without making reasonable progress toward correcting the conditions which led to his removal. We review the record evidence to determine if the trial court's findings of fact were based on clear, cogent and convincing evidence and support the trial court's conclusions of law that grounds to terminate exist. If the findings support the conclusions of law, we next evaluate whether the trial court abused its discretion in determining that termination of parental rights is in Kai's best interest. Id.

B. Statutory Grounds to Terminate Parental Rights

A termination of parental rights proceeding is a two-step process with an adjudicatory stage and a dispositional stage. In the first phase – adjudication – the court determines, based on clear, cogent, and convincing evidence, whether a statutory ground to terminate a parent's rights exists. See, e.g., In re A.R.A., 373 N.C. 190, 194, 835 S.E.2d 417, 421(2019); In re D.L.W., 368 N.C. 835, 842, 788 S.E.2d 162, 167 (2016). Clear and convincing evidence “is more exacting than the preponderance of the evidence standard generally applied in civil cases, but less than beyond a reasonable doubt standard applied in criminal matters ․ such that a factfinder applying that evidentiary standard could reasonably find the fact in question.” In re J.C.-B., 276 N.C. App. 180, 184, 856 S.E.2d 883, 887 (2021) (quoting In re A.C., 247 N.C. App. 528, 533, 786 S.E.2d 728, 733-34 (2016)).

Father challenges each of the trial court's conclusions of law that two grounds existed to terminate Father's parental rights. We first address Father's argument that the trial court erred in finding that he willfully left Kai in foster care for more than twelve months without making adequate progress.

A trial court may terminate parental rights upon a finding that 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.” N.C. Gen. Stat. § 7B-1111(a)(2).

“[T]he willfulness of a parent's failure to make reasonable progress toward correcting the conditions that led to a child's removal from the family home is established when the [parent] had the ability to show reasonable progress but was unwilling to make the effort.” In re A.S.D., 378 N.C. 425, 428 861 S.E.2d 875, 879 (2021) (internal citations omitted). The fact that a parent makes some effort to make progress towards reunification does not preclude a finding of willfulness. See, e.g., In re B.J.H., 378 N.C. 524, 554, 862 S.E.2d 784, 805 (2021) (affirming TPR; mother completed parenting classes but did not make reasonable progress on other issues related to substance use and housing).

In the case sub judice, the trial court made findings of fact that Father willfully refused to engage with RCDSS and enter a case plan and as a result Kai was left in foster care for over twelve months. The relevant findings of fact include:

8. The juvenile came into care of the RCDSS on March 17th 2022 upon his release from the hospital. [Kai] was born at 31 weeks gestation and was drug exposed. He remained in the NICU for about two months after his birth. [Kai] has developmental delays and is currently involved with speech physical and occupational therapy. He is monitored by several medical providers and the Children's Developmental Services Agency. His special needs continue to become emergent.

9. Mother and Father did not complete any training at the hospital during [Kai]’s hospitalization to prepare to meet [Kai]’s significant medical needs. During his two-month hospitalization, [Father] only visited [Kai] six to seven times; however, he never changed [Kai]’s diaper or fed him. [Father] admitted to drinking all day on the day [Kai] was born.

11. [Father] did not appear at the adjudication and disposition hearing on July 7, 2022.

12. The parents were court ordered to participate in visitation with the child on a consistent basis and comply with the visitation plan, participate and successfully complete an approved parenting program and demonstrate learned skills, complete a substance abuse and mental health assessment including an Adult Holistic Assessment (AHA) and follow through with all treatment recommendations, submit to random drug screens, obtain and maintain safe, sanitary, and stable housing with the family, and obtain and maintain legal employment and financially provide for the child.

14. [Father] never completed an AHA or Comprehensive Clinical Assessment and refused to work with the social worker to develop a case plan or a visitation plan. He attended an office visit on February 10, 2023 with the social worker to develop and Out of Home Family Services Agreement and visitation plan but left in just three minutes without establishing any plans. Another office visit was set up for Father in September 2023 to develop his case plan and visitation, but he failed to show up for the meeting. [Father] refused to engage in any services despite referrals from the RCDSS to address any barriers to his parenting of [Kai] for the 12 months prior to the filing of the Petition to Terminate Parental Rights.

15. [Father] has never visited [Kai] since his release from the hospital. He failed to appear at three consecutive scheduled visits and no showed for a video call set up by the RCDSS to meet the foster parent and discuss [Kai]’s ongoing needs. [Father] attempted to visit with [Kai] during Mother's scheduled separate visit on April 2[6], 2022. He became belligerent when he was not allowed to attend the visit and had to be removed by law enforcement. [Father] cancelled a scheduled visitation with [Kai] thirty minutes before the visit indicating that Mother was threatening him. [Kai]’s placement is over an hour away, and the child was already in the process of being transported for the visit when [Father] cancelled.

16. Both parents have neglected [Kai]. Mother and [Father] are not in a position to care for [Kai]. Neither parent has any knowledge or insight of [Kai]’s medical needs. Neither parent participated in any kind of parenting classes or other educational programs to learn to care for their child. The likelihood of ongoing neglect is high.

17. Mother and [Father] have willfully left the juvenile in the care of the RCDSS for more than 12 months without addressing any of the reasons why [Kai] came into care.

A careful review of the record evidence shows these findings are supported by clear, cogent, and convincing evidence. Father consistently and repeatedly refused to engage with RCDSS or sign a case plan to work toward reunification with Kai. Father also did not attend visitation with Kai. Father argues that findings of fact twelve and fourteen are in error as he was never ordered to complete the listed tasks such as completing approved parenting programs, substance abuse and mental health assessments, obtaining and maintaining safe, sanitary, and stable housing with the family, and obtaining and maintaining legal employment and financially providing for the child. Although the tasks Father needed to complete may not have been listed specifically in the court orders, the trial court consistently ordered Father to “engage with the RCDSS and enter an OHFSA case plan and visitation plan with RCDSS.” Further, even though the tasks were not delineated by the trial court, Father cannot legitimately argue that he was unaware of the tasks he needed to complete to reunify with Kai because the trial court adopted and incorporated in each review and permanency planning order the concerns about Father and recommendations for services from the RCDSS and Guardian ad Litem reports. The reports included the recommendations for all the items listed in finding of fact twelve including the AHA assessment, treatment, if necessary, drug testing, stable housing and employment verification as well as the referrals to the AHA assessment and Genesis for drug screening.

Our Supreme Court has held that

“a parent's delay in signing a case plan or attempting to address the conditions leading to a child's removal from the home has indisputable relevance to an evaluation of the willfulness of a parent's conduct and the reasonableness of that parent's progress in correcting the conditions that had led to a child's removal from the family home ․”

In re D.A.A.R., 377 N.C. 258, 274, 857 S.E.2d 295,306-07 (2021).

Father consistently and repeatedly refused the sign a case plan, did not attend appointments with the social worker or visits with Kai. Since he would not sign a case plan RCDSS was unable to move forward with evaluations and treatment recommendations that could have enabled Father to make progress towards reunification. Despite his refusal to sign a case plan, RCDSS made some referrals for services to Father to address barriers to his parenting of [Kai], and Father still refused to engage in any services. The record demonstrates by clear, cogent, and convincing evidence that Father willfully chose to allow his child to remain in RCDSS custody for more than twelve months without reasonable progress towards reunification.

C. The Child's Best Interest

After an adjudication that one or more ground for termination of parental rights exist, the court is never required to order the termination of parental rights at the dispositional stage. Rather, the court must determine whether termination is in the child's best interest. N.C. Gen. Stat. § 7B-1110(a).

In evaluating a child's best interests, trial courts are required to consider a series of enumerated statutory criteria including: (1) the age of the juvenile; (2) the likelihood of adoption; (3) whether a TPR will aid in accomplishing a permanent plan; (4) the bond between the juvenile and the parent; (5) the relationship between the juvenile and proposed adoptive parent; and (6) any other relevant consideration. N.C. Gen. Stat. § 7B-1110(a). The trial court must consider each of these statutory factors, but the court is “only required to make written findings regarding those factors that are relevant.” In re A.R.A., 373 N.C. 190, 199, 835 S.E.2d 417, 424 (2019). “A factor is relevant if there is conflicting evidence concerning the factor.” In re E.S., 378 N.C. 8, 12, 859 S.E.2d 185, 188 (2021).

The North Carolina Supreme Court has held that the standard of review for the trial court's best interest determination is an abuse of discretion. See, e.g., In re G.B., 377 N.C. 106, 112, 856 S.E.2d 510, 515 (2021); In re A.M.O., 375 N.C. 717, 721, 850 S.E.2d 884, 887 (2020). An “[a]buse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” In re A.U.D., 373 N.C. 3, 6–7, 832 S.E.2d 698, 700-01 (2019) (internal citation omitted).

Here, the trial court made several findings of fact regarding Kai's current placement and best interests considering all the factors in N.C. Gen. Stat. § 7B-1110(a). The trial court found that adoption by a ready, willing and medically trained foster parent was likely, and Kai already had close bonds with his foster parent and two foster siblings. The court also determined that no parental bond existed between Kai and either of his biological parents and reasonable efforts had been made for over eighteen-months to establish reunification with little to no progress with either parent.

Father argues that because he has “fixed” the two concerns the RCDSS identified as their main concerns during the 15 December 2022 permanency planning hearing, (1) the domestic discord between Father and Mother and (2) his lack of employment, the courts finding that the “likelihood of ongoing neglect is high” is not properly supported by clear and convincing evidence and it would not be in Kai's best interest to terminate his parental rights. This argument is not supported by a complete review of the facts or the supporting case law.

Although Father and Mother no longer appear to be in a relationship because Mother moved out of the area and has had no contact with Father and RCDSS, Father has not engaged in any type of mental health services to address his issues with domestic discord and chaotic living situation. Therefore, the trial court had no assurance that the situation had changed. It was reasonable for the trial court to conclude that there is still a high likelihood of ongoing domestic chaos.

Additionally, while the Affidavit of Indigency that Father filled out to request an attorney for the termination hearing contained the fact that he had secured employment at Texas Roadhouse approximately six weeks before the termination hearing, Father had never reported employment to RCDSS or the court. Although it is positive that he has reported employment for the first time in over eighteen months,

evidence of changed conditions must be considered in light of the history of neglect by the parents and the probability of a repetition of neglect. Therefore, although respondent-father may have made some minimal progress ․ the trial court was within its authority to weigh the evidence and determine that these eleventh-hour efforts did not outweigh the evidence of his persistent failures to make improvements ․ and to conclude that there was a probability of repetition of neglect.

In re O.W.D.A., 375 N.C. 645, 653, 849 S.E.2d 824, 830 (2020). The court determined based on Father's continued refusal to engage with RCDSS and refusal to participate in any recommended service, regardless of some minimal last-minute efforts by Father, it was in Kai's best interest to terminate parental rights and provide him with permanency at the earliest possible age. Because the trial court properly considered all of the dispositional factors and made sufficient findings to support its conclusion that termination was in Kai's best interest, the trial court did not abuse its discretion in terminating Father's parental rights.

III. Conclusion

Clear and convincing evidence supports the trial court's finding that Father refused to engage with RCDSS or engage in any services to work towards reunification and therefore left Kai in foster care for more than twelve months with little to no progress towards reunification. In turn, the trial court's findings support its conclusion of law that Father willfully left Kai in foster care for more than twelve months by failing to make reasonable progress under the circumstances in correcting the conditions leading to the removal of Kai. Accordingly, we affirm the trial court's conclusion that grounds existed to terminate Father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Because we affirm the trial court's conclusion that grounds existed to terminate Father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), we need not address Father's arguments regarding the other ground the trial court concluded existed. A trial court “may terminate the parental rights upon a finding of one or more” grounds. N.C. Gen. Stat. § 7B-1111(a). When the appellate court reviews and affirms one ground, it does not “imply that the evidence and supported findings were not also sufficient to establish the other ․ grounds for termination found by the trial court.” In re J.M., 373 N.C. 352, 356, 838 S.E.2d 173, 176 (2020).

Further, the trial court properly considered all of the dispositional factors and did not abuse its discretion when it determined it was in Kai's best interest to terminate Father's parental rights. Thus, we affirm the trial court's order terminating Father's parental rights.

AFFIRMED.

Report per Rule 30(e).

FOOTNOTES

1.   A pseudonym is used to protect the identity of the juvenile pursuant to N.C. R. App. P. 42(b).

WOOD, Judge.

Judges ARROWOOD and COLLINS concur.