Opinion
No. COA10-735
Filed 7 December 2010 This case not for publication
Appeal by respondent-mother from order entered 15 January 2010 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 28 October 2010.
Kathleen Arundell Widelski for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services. Lucas Ellis, PLLC, by Anna S. Lucas for respondent-appellant mother. Deana K. Fleming for Guardian ad Litem.
Mecklenburg County Nos. 06 JT 805-807.
Respondent-mother appeals from an order terminating her parental rights to her children. For the following reasons, we affirm.
BACKGROUND
Respondent-mother and Mr. F. were married in 1993 and lived in the State of Maryland. Three children were born of the marriage: M.F. born in May 1998, and twins, A.F. and N.F., born in October 1999 (collectively "the children"). Respondent-mother had a daughter from a previous marriage, S.E., who also lived with the family in Maryland. Maryland Social Services became involved with the family when school personnel discovered that S.E. had become pregnant by Mr. F. During therapy for the children, it was revealed that A.F. had been molested and that M.F. and N.F. had been exposed to pornographic material. Mr. F. was subsequently convicted of rape and imprisoned in Maryland. In 2004, respondent-mother, M.F., A.F., and N.F. moved to Charlotte, North Carolina, to be near respondent-mother's parents.
On 18 June 2006, respondent-mother's mother told respondent-mother she had observed M.F. and A.F. simulating sexual intercourse. Respondent-mother called the Behavioral Health Center requesting help in handling the situation. That same day, Mecklenburg County Youth and Family Services ("YFS") received a child protective services report regarding the children. On 19 June 2006, respondent-mother and YFS entered into an initial safety plan, in which respondent-mother agreed that M.F. would sleep at her mother's home and that M.F. would have no unsupervised contact with any children. Respondent-mother also agreed to seek counseling for her three children. Once YFS became involved, A.F. and M.F. disclosed that their sexual activity had been occurring for six months, and N.F. disclosed that M.F. had fondled him.
On 29 June 2006, YFS, respondent-mother, and respondent-mother's mother met with Dr. Robert Custrini regarding the sexual activity occurring between M.F. and his siblings. Dr. Custrini recommended that A.F. and N.F. have no contact with M.F. and that respondent-mother alert the Boys and Girls Club, which M.F. attended, as to the situation regarding M.F. After the meeting, M.F. was temporarily placed with respondent-mother's mother.
On 7 July 2006, YFS filed a juvenile petition alleging that M.F., A.F., and N.F. were abused, neglected, and dependent juveniles. YFS alleged in the petition that respondent-mother admitted she was aware of sexual contact among the children. Specifically, A.F. had told respondent-mother in 2004 and in early 2006 that M.F. had been touching her inappropriately. Also, respondent-mother reported that A.F. had been initiating sexual contact between herself and her 11-year-old neighbor. YFS further alleged that in response to A.F.'s disclosure, respondent-mother talked to M.F. and "whipped" him. YFS alleged that respondent-mother's mother had informed YFS that she would not continue to keep M.F., and that Mr. F. was currently incarcerated in Maryland. YFS took nonsecure custody of the children. The twins were placed in the same foster home, and M.F. was placed in a separate foster home.
Mediation on the petition was held on 16 August 2006. Based upon agreed findings of fact, which included a finding that respondent-mother had "prior knowledge of inappropriate sexual contact between the children[,]" respondent-mother entered into a case plan. Respondent-mother agreed to: (1) obtain an assessment through FIRST to address issues of substance abuse, domestic violence and mental health; (2) work with a therapist to address issues of parent education; (3) participate in family therapy with the children when recommended by their therapist; (4) obtain stable employment and have sufficient income to meet her children's needs; (5) maintain safe and appropriate housing for her children; (6) remain in weekly contact with the social worker and notify the social worker of any changes in her contact information; (7) cooperate with the Guardian ad Litem as requested; (8) have supervised visits with the twins and separate supervised visits with M.F.; (9) demonstrate parenting skills and appropriate interaction with the children during visits and refrain from discussing reunification or therapeutic issues; and (10) attend the children's medical appointments when notified by the social worker and able to do so.
The trial court held an adjudication and disposition hearing on 31 August 2006. In an adjudication order filed 20 September 2006, the trial court adjudicated the children dependent juveniles. The trial court incorporated the case plan into its disposition order. By review order filed 28 December 2006, the trial court found that respondent-mother had completed a FIRST assessment, had scheduled an appointment with Behavioral Health-Randolph, had employment with Food Lion, and consistently visited her children. The trial court ordered separate and supervised visitation. The trial court also ordered respondent-mother to comply with case plan objectives and demonstrate skills learned, and actively attend non-offenders parenting class. After another review hearing held on 8 March 2007, the trial court ordered separate supervised visitation with M.F. and, at YFS's discretion, unsupervised family visits with A.F. and N.F.
The trial court held a permanency planning hearing on 7 June 2007. In an order filed 2 July 2007, the trial court found that respondent-mother was referred to a new therapist "due to the issue and concerns that need to be addressed"; that her employment with Food Lion was verified; that she was evicted from her mobile home and was currently living with her parents; that she had completed parenting classes in February 2007; and that she was unable to attend a non-offending parent's group due to scheduling conflicts. The trial court found that respondent-mother had made reasonable progress in addressing the issues which led to the children's placement, but stated that she "must address her role in the sexual victimization of her children through intense individual therapy." The court ordered the permanent plan for the children be reunification, that respondent-mother follow through with the Non-Offending Parenting Class through Pat's Place, and that respondent-mother receive individual therapy regarding her role in her children's sexual victimization. The court further ordered YFS to continue unsupervised visitation and, in its discretion, begin trial home placement with the children once respondent-mother secured housing.
In a permanency planning order filed 7 December 2007, the trial court found that respondent-mother had to fully comply with the court-ordered family services agreement before reunification could be achieved. Respondent-mother was ordered again to participate in the Non-Offending Parenting Class offered through Pat's Place and to participate in Urban Restoration Aftercare. The court ordered the children should not have overnight visits with other persons and that no one should supervise the children without the permission of YFS.
The trial court entered another permanency planning order on 4 March 2008. The trial court found that "there have been concerns regarding the mother's parenting during unsupervised visitation. The mother gave [A.F.] medication that had been prescribed for the mother." The trial court also found that respondent-mother had begun therapy with Angela Sepulveda and had attended three appointments; that she maintained employment; that she obtained housing in December 2007; but that she had not attended the Non-Offending Parenting Class at Pat's Place. The court expressed concern about respondent-mother returning A.F. to her foster parent without discussing an injury that A.F. had sustained with the foster parent. The court also found that respondent-mother "committed a technical violation of the court's order by leaving [A.F.] at the home of a former neighbor." The court again ordered respondent-mother to participate in the Non-Offending Parent Class at Pat's Place and that she actively participate in the children's therapy as requested.
On 10 June 2008, the trial court entered another permanency planning order. The trial court found that respondent-mother had attended therapy with Angela Sepulveda; that she had employment; and that she had housing. The trial court also found that respondent-mother had completed a portion of the Non-Offending Parenting Class by having "individual education at Pat's Place."
The court further found that "[f]ull compliance with the court ordered case plan and showing positive results from such compliance" remained to be accomplished before reunification could be achieved.
After holding a permanency planning hearing on 5 December 2009, the trial court entered an order changing the permanent plan from reunification to adoption. The trial court found that respondent-mother had attended therapy infrequently and not at all starting in July 2008; that her failure to attend therapy occurred when money was not an issue; that when money was an issue, respondent-mother declined a sliding scale fee with Ms. Sepulveda; that she began group sessions at the Women's Commission in November 2008; that she was currently unemployed; that she had lost and re established housing during the review period; and that she was not consistently visiting M.F. The trial court found that it was not possible to return the children to respondent-mother's care because she had failed to make consistent progress on her case plan goals and had failed to address the issues that necessitated the children's placement in care. The trial court also found that during the twenty-seven month period the children had been in YFS's care, respondent-mother had made substantial progress at times, but then the progress would dissipate. The trial court further found that the case had spanned twenty-seven months because of the bond between the mother and children; however, the court found that it must focus on securing a permanent safe home for the children within a reasonable period of time.
On 3 February 2009, YFS filed a petition to terminate respondent-mother's parental rights based upon the grounds of neglect under N.C. Gen. Stat. § 7B-1111(a)(1)(2009); willfully leaving the children in foster care without showing reasonable progress under N.C. Gen. Stat. § 7B-1111(a)(2)(2009); reasonable costs under N.C. Gen. Stat. § 7B-1111(a)(3)(2009); and abandonment under N.C. Gen. Stat. § 7B-1111(a)(7)(2009). The trial court held a termination of parental rights hearing in April, June, July, August and October 2009. By order filed 15 January 2010, the trial court terminated respondent-mother's parental rights under sections 7B-1111(a)(1) and (a)(2). The trial court further determined that termination of respondent-mother's parental rights was in the best interests of the children.
ANALYSIS I. Standard of Review
Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, "the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists." In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). "If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child." Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. Id.
II. Grounds for Termination
Respondent-mother contends the trial court erred by concluding that sufficient grounds existed to terminate her parental rights under N.C.G.S. § 7B-1111(a)(2), because she "completed all aspects of her case plan." We disagree.
N.C.G.S. § 7B-1111(a)(2) provides a parent's rights may be terminated where:
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. . . .
This Court has noted that "to find grounds to terminate a parent's rights under G.S. § 7B-1111(a)(2), the trial court must perform a two part analysis." In re O.C. O.B., 171 N.C. App. 457, 464, 615 S.E.2d 391, 396 (2005). Specifically, the trial court must determine by clear, cogent, and convincing evidence that: (1) respondent "willfully" left the juvenile in foster care for more than twelve months, and (2) that respondent failed to make "reasonable progress" in correcting the conditions that led to the juvenile's removal from the home. Id. at 464-65, 615 S.E.2d at 396. When determining willfulness, the court must consider whether "respondent had the ability to show reasonable progress, but was unwilling to make the effort." In re Nesbitt, 147 N.C. App. 349, 360, 555 S.E.2d 659, 666 (2001). Evidence of some progress does not preclude a finding of willfulness. In re Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676, 681-82 (1989).
To support its conclusion that grounds existed to terminate respondent-mother's parental rights under N.C.G.S. § 7B-1111(a)(2), the trial court found: (1) a case plan was adopted by the court requiring respondent-mother to attend individual therapy, attend family therapy, attend the children's medical appointments, and secure employment and stable housing; (2) respondent-mother missed eleven of twenty-two scheduled family therapy sessions, and the effect of her absence resulted in her not being able to accept responsibility for her role in her children's victimization to help prevent future harm; (3) respondent-mother attended very few of the children's medical appointments even though she was given a bus pass by YFS; (4) respondent-mother attended two individual therapy sessions with Ms. Blackstone before being re-assigned to Angela Sepulveda; (5) respondent-mother missed eight of her scheduled twenty visits with Ms. Sepulveda; and (6) respondent-mother canceled the remainder of her visits with Ms. Sepulveda when she was on the brink of making significant progress. The court further found that because respondent-mother did not continue her therapy with Ms. Sepulveda, she did not appreciate her role in her children's abuse. The court noted respondent-mother continued therapy with Susan Page, but the focus of the therapy shifted from helping respondent-mother accept responsibility to self-improvement and stress management. The court stated the new focus of respondent-mother's therapy did not follow her case plan, and respondent-mother had failed to demonstrate her ability to apply her therapy to future situations to prevent abuse.
At the hearing, respondent-mother testified she was abused by Mr. F. and her step-mother. The court found that respondent-mother's "nearly lifelong victimization makes her unable to avoid making mistakes, using terrible judgment in parenting, and being a victim and dependant." The court also observed respondent-mother had been unable to maintain consistent employment.
Respondent-mother claims it is "undisputed that [she] completed all of the aspects of her case plan" and that there is no evidence in the record to support these findings. However, contrary to respondent-mother's characterization of the record, ample competent evidence was offered at trial supporting the trial court's findings of fact. At trial, respondent-mother testified she was not working on parenting issues with Ms. Page, had not consistently attended therapy, and was currently working on self-improvement instead of parenting. Moreover, in addition to respondent-mother's testimony, Ms. Sepulveda testified that respondent-mother made progress toward achieving an understanding of her role in her children's abuse but did not achieve a full understanding of how the choices she made did not protect her children. Respondent-mother does not dispute on appeal that she has not maintained consistent housing or employment.
Respondent-mother argues that the goals of her therapy with Ms. Page should not be held against her since it was YFS who sent respondent-mother to Ms. Page for therapy. At the hearing, Ms.
Page testified that respondent-mother "was a transfer from the medication clinic and according to the medication clinic, [inaudible], she was interested in therapy. It was a recommendation by D.S.S., but she was also interested in therapy for herself." Ms. Page also testified that respondent-mother told her that she was seeing her voluntarily. Further, after speaking with respondent-mother at an "in-take session" in November 2008, Ms. Page developed respondent-mother's treatment goals, which were to decrease symptoms of depression, learn communication and coping skills, and process respondent-mother's abuse history. Ms. Page's testimony shows that although YFS recommended respondent-mother see Ms. Page, respondent-mother informed Ms. Page that she wanted therapy for herself and not therapy to help her reunite with her children. In fact, Ms. Page testified she could not state what bearing her progress on respondent-mother's treatment goals had on respondent-mother's parenting.
Respondent-mother claims she completed her case plan, however, the record shows that respondent-mother missed her own therapy appointments, failed to maintain employment, and failed to attend therapy appointments for her children. Furthermore, the trial court made clear in many of its orders that respondent-mother had to show positive results from compliance with her case plan for reunification with her children. The findings of fact, supported by competent evidence, show that respondent-mother was unable to apply what she had learned. For example, Colina Gantt, a YFS social worker assigned to the case, testified respondent-mother could verbalize many of the skills she learned in the classes. However, Gantt testified that "[b]ased on observations and conversations that I've had with [respondent-mother], her ability to put those learned skills into practice is minimal."
All of the findings regarding the ground of reasonable progress indicate a lack of effort on respondent-mother's part rising to the level of willfulness. Prior to the trial court's order allowing YFS to pursue adoption, the children had been in the care of YFS for twenty-seven months. After spending over two years attempting to reunify respondent-mother with her children, respondent-mother still had not achieved the goals of her case plan. The competent evidence in the record clearly, cogently, and convincingly supports the trial court's findings concerning respondent-mother's lack of reasonable progress. Accordingly, the trial court did not err in concluding that respondent-mother's parental rights could be terminated under N.C.G.S. § 7B-1111(a)(2). Because we find that this ground was satisfied under our standard of review, we need not address respondent-mother's arguments regarding the other ground for termination.
III. Best Interests
Respondent-mother also contends the trial court erred in its determination of the children's best interests pursuant to N.C. Gen. Stat. § 7B-1110 (2009). We disagree.
In determining whether terminating the parent's parental rights is in the juvenile's best interest, the court must consider the following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
The court made the following findings of fact in support of its determination:
1. [M.F.] was born to [respondent-mother and Mr. F.] on 12 May 1998. . . . [N.F. and A.F.] were born to [respondent-mother] on 1 October 1999.
. . . .
54. There are no prospects for any of the children to return home with their mother. There are no relative placements available for the children. The children have no positive relationships with any relative other than their mother.
55. The children are attached to their mother, but even the visitation between the mother and the children demonstrates the boundary issues the mother has not overcome. At a supervised visit, the mother had to be told to not let [M.F.] sit in her lap and allowed excessive touching between the children.
56. The children's age and relationship with their mother lead the court to hope an open adoption could be arranged for the children.
57. The recruiting of adoptive homes for the children will be difficult, but the earlier the search can begin the better the chance of success.
58. The children may have to be separated to be adopted, but they have been separated for over three years with no prospect of being placed in one home.
59. It is in the best interest of the children that their parents' rights be terminated so adoption recruitment efforts can be pursued in earnest.
These findings show that the trial court considered the required statutory factors. In the first finding, the court listed the ages of the children, and the children's ages were also considered regarding the issues of adoption and the children's bond to their mother. The court found that adoption was not likely, but adoption needed to be pursued immediately if a home was to be found. The permanent plan for the children was adoption, and the court found that termination of respondent-mother's parental rights would assist with the adoption process. The court also found the bond between respondent-mother and the children was strong, but respondent-mother was not capable of providing for and protecting the children.
The trial court did not make any findings regarding the quality of the relationship between the children and the proposed adoptive parent, guardian, custodian, or other permanent placement since no such relationship or placement existed. However, the court did find that it would be in the best interests of the children if respondent-mother's rights were terminated so that adoption recruitment efforts might be pursued. Accordingly, because the statutory factors were considered, the trial court did not abuse its discretion in concluding that the termination of respondent-mother's parental rights was in the best interests of her children.
Based on the foregoing, we affirm the trial court's order terminating respondent-mother's parental rights.
Affirmed.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).