Opinion
No. COA09-1127.
Filed January 19, 2010.
Avery County Nos. 07 J 22, 23.
Appeal by respondent-father from order entered on or about 1 June 2009 by Judge R. Greg Horne in District Court, Avery County. Heard in the Court of Appeals 21 December 2009.
Hall Hall Attorneys at Law, P.C., by Douglas L. Hall, for appellee Avery County Department of Social Services. Cranfill Sumner Hartzog LLP, by Donna R. Rascoe, for appellee Guardian Ad Litem. Richard E. Jester, for respondent-appellant father.
Respondent-father appeals from an order terminating his parental rights to his children Erik and Michael. For the following reasons, we affirm.
Pseudonyms will be used to protect the identity of the minor children.
The Avery County Department of Social Services ("DSS") has been involved with respondent-father and his family since May 2007, due to reports of domestic violence and drug use. The children lived with their maternal grandparents in New York from May 2007 until August 2007 when the children returned to respondent-father and mother. On 29 October 2007, DSS filed two separate petitions alleging Erik and Michael were neglected juveniles. The petitions alleged that respondent-father and mother were buying and using drugs in the presence of the children and that the family had a substantiated history of domestic violence in relation to drug use. DSS took nonsecure custody of the children.
After holding an adjudication hearing, the trial court adjudicated Erik and Michael neglected juveniles on 13 October 2008. The trial court ordered respondent-father and mother to submit to random drug testing, participate in controlled substance abuse treatment, establish a suitable residence, and participate in all recommended treatment programs. The trial court also continued nonsecure custody of the children with DSS.
The trial court held a permanency planning hearing and, on 29 December 2008, entered a permanency planning order. As to respondent-father, the trial court found that: respondent-father was living in a faith-based substance abuse treatment house, Hope After Dope; the ordained minister who supervised the faith-based house had a high school education and "no training or experience in the treatment of substance abuse issues;" respondent-father was not seeking any other treatment; "[t]he Hope After Dope program would like [respondent-father] to remain in the home for 9 to 12 months[;]" respondent-father wants to live with the mother within the next 90 days and have the children returned to them at that time; and respondent-father has violated a no-contact court order which is also a violation of a requirement of the Hope After Dope program. The trial court further found that the maternal grandparents wanted to adopt the children; the children had recently traveled to New York to visit them; a home study of the maternal grandparents was completed; and DSS had received a verbal approval of placement from the New York authorities. The trial court ordered adoption by the maternal grandparents as the permanent plan for the children.
On or about 7 January 2009, DSS filed a "Motion to Terminate Parental Rights[,]" (original in all caps), based upon neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), willfully leaving the children in foster care or placement for more than twelve months without making reasonable progress under the circumstances pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), and failure to pay a reasonable portion of child care pursuant to N.C. Gen. Stat. § 7B-1111(a)(3). After conducting a hearing on the termination motion, the trial court found grounds to terminate the parental rights of respondent-father and mother pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (a)(2), and (a)(3). The trial court concluded it was in the best interests of Erik and Michael to terminate the parental rights of respondent-father and mother. Only respondent-father appeals.
The issues on appeal are whether the trial court erred in concluding that sufficient grounds existed to terminate respondent-father's parental rights and determining that it was in the best interests of Erik and Michael to terminate respondent-father's parental rights. Respondent-father contends the trial court erred by finding and concluding that sufficient grounds existed to terminate his parental rights. Respondent-father specifically challenges the trial court's conclusion that grounds existed to terminate his parental rights based upon his failure to make reasonable progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Termination of parental rights involves a two-step process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001) (citation omitted). 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) (citation omitted). "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 (citation omitted). The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. Id.
Parental rights may be terminated when "[t]he 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) (2009). Willfulness does not imply fault on the part of the parent, but may be established "when the respondent had the ability to show reasonable progress, but was unwilling to make the effort." In re O.C. O.B., 171 N.C. App. 457, 465, 615 S.E.2d 391, 396 (citations and quotation marks omitted), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005). Even if a parent has made some efforts to regain custody, a trial court may still find that he or she willfully left the child in foster care under N.C. Gen. Stat. § 7B-1111(a)(2). See id.
To support its conclusion that respondent-father willfully left Erik and Michael in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court reasonable progress, the trial court found in pertinent part:
22. During the first several months of 2008, the parents had a period of heavy drug use and complete disinterest in their children. The father was arrested in March, 2008 for possession of cocaine and unauthorized use of a motor vehicle. The mother was also arrested in this time period for unauthorized use of a motor vehicle;
23. In March, 2008, the parents were also found in a motel room in Hickory, N.C. with crack cocaine, but were not arrested in exchange for providing information to law enforcement;
. . . .
26. At the September 15, 2008 re-adjudication of the original neglect petition, the father testified at length that during the first several months of 2008, he and the mother ignored their children and any plans or work needed to have them returned, and concentrated on using a personal injury settlement he received to buy drugs. The father testified between his money and money he obtained from his aunt, he and the mother spent approximately $150,000.00 during this period of time;
27. In May, 2008 the Mother obtained a domestic violence restraining order against the Father because he had choked her at a motel room until she passed out, and told her he was going to kill her with a gun. During July, 2008, she met with the Father at a motel in Boone, N.C. because she needed money from him to pay rent at a boarding house where she was living. They began fighting in the motel room and made their way outside onto a sidewalk beside Hwy. 105. Observers called the police. The father resisted arrest, caused a disturbance in the Magistrate's office, and was administered a taser stun gun three times. He then was treated at the hospital as a result, and then jailed on charges related to the fight with the mother;
28. The mother prosecuted the charges taken against the father, and as a result, the father was incarcerated in the N.C. Department of Correction[] for Assault on a Female, Communicating Threats, resisting an officer, unauthorized use of a motor vehicle, and larceny. He was released Thanksgiving Day 2008;
. . . .
32. That the father did go to DSS after his release from prison and has entered into a new case plan with the Department as he was ordered to do;
33. That the Father briefly lived in a faith-based house, Hope After Dope, with seven other men, all of whom had drug addiction problems. The house was a rental house in Beech Mountain, N.C., and is not licensed, approved or affiliated with any other organization for the treatment of any persons for any reason. The home is supervised by an ordained minister with no formal education past high school, who said he is a recovering 18 year meth addict, and he admitted he has no training or experience in the treatment of any mental health or substance abuse issues;
34. The Father testified at this session of court that he left the Hope After Dope house a couple of days after the December, 2008 hearing wherein he testified about living there. He and the mother then lived together at various locations up to the present as discussed elsewhere herein;
35. The father has obtained sporadic employment since his release from prison. He worked in restaurants in Beech Mountain and Boone, and worked as a painter and landscaper in Florida in the past several weeks. He admits he is many thousands of dollars behind on child support payments for not only these children but two older children from a prior marriage. He also has a fifth living child who has attained the age of majority. He is currently in custody for a failure to appear in criminal court in Caldwell County, and a child support show cause order pertaining to these children;
. . . .
51. The parents worked as painters and landscapers in Florida, and lived in the back of the paint store where they were employed. They did not attend court for this hearing in April, 2009, and no one associated with this case knew where they were. The mother used alcohol, cocaine and marijuana during this time, and the father used those substances in addition to heroin and oxycontin. They used these substances up until Thursday, April 30, 2009, the day their bondsman arrested them at a gas station in Jacksonville, Florida. The father had failed to appear for a court date in North Carolina, and had an outstanding probation violation warrant, and the bondsman had decided to go off of the Mother's bond;
52. When asked at this hearing where they currently reside, each parent responded, "the Avery County Jail";
. . . .
54. That the father likewise has not obtained the parenting classes, substance abuse treatment, and domestic violence treatment required by every case plan he has had with DSS since November 1, 2007, and has exhibited only 13 days of employment in 2008. He testified that he has obtained some treatment, and may have completed parenting classes at Black Mountain, but all of his same problems which precipitated the original neglect petition have continued to the present[.]
Respondent-father assigns error to many of the above findings of fact, but does not argue in his brief that any specific finding of fact is not supported by the evidence. Consequently, respondent-father has abandoned his assignments of error on these issues, and the findings of fact are deemed binding on appeal. See In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005) (concluding respondent had abandoned factual assignments of error when she "failed to specifically argue in her brief that they were unsupported by evidence").
Respondent-father, however, argues that the trial court "improperly shifted the burden of proof to [respondent-father.]" We reject respondent-father's argument. DSS presented evidence and testimony which highlighted respondent-father's lack of progress in obtaining substance abuse and domestic violence treatment as ordered by the court. The trial court recognized DSS's burden and properly concluded that "[t]he Avery County Department of Social Services has shown by clear, cogent and convincing evidence that grounds exist to terminate the parental rights of the Respondents based upon the above findings of fact." We conclude that the above findings of fact support the trial court's conclusion that sufficient grounds existed to terminate respondent-father's parental rights to Erik and Michael pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Respondent-father also contends the trial court erred in its determination of the children's best interests pursuant to N.C. Gen. Stat. § 7B-1110. In determining whether terminating the parent's rights is in the juvenile's best interests, the trial court shall 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.
N.C. Gen. Stat. § 7B-1110(a) (2009).
Here, the trial court made findings of fact to support its determination that it was in the best interests of the minor children to terminate respondent-father's parental rights:
24. The Father had his last visit with the children in April, 2008;
. . . .
55. The maternal grandparents of these juveniles desire to adopt them. The children are familiar with these relatives, and were placed with these grandparents with the consent of these parents from May to August, 2007. The children also recently traveled to New York State to visit them prior to being placed there in March, 2009. The foster parents have made arrangements with the grandparents to remain in touch with the children after placement in New York, which should help ease the transition for the children;
56. An interstate compact was initiated some time ago on the grandparents. A home study has been completed and approval of the placement has been received from the New York and NCDHHS authorities;
57. That both parents testified they love their children very much, but cannot care for them at this time, and that the children are well cared for with their grandparents. They both testified that they do not think termination is in the best interest of the children[.]
Respondent-father does not argue in his brief that any specific finding of fact is unsupported by the evidence, and they are therefore deemed binding on appeal. See In re P.M. at 424, 610 S.E.2d at 404-05. (concluding respondent had abandoned factual assignments of error when she "failed to specifically argue in her brief that they were unsupported by evidence"). The trial court's findings of fact indicate that it considered all of the statutorily mandated factors and came to its decision to terminate respondent-father's parental rights through a rational reasoning process. Thus, we conclude that the trial court did not abuse its discretion in concluding that the termination of respondent-father's parental rights was in the best interests of Erik and Michael.
AFFIRMED.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).