Opinion
No. COA10-946
Filed 1 February 2011 This case not for publication
Appeal by respondent from judgment entered 19 May 2010 by Judge H. Thomas Jarrell, Jr., in Guilford County District Court. Heard in the Court of Appeals 21 December 2010.
Mercedes O. Chut for Guilford County Department of Social Services, petitioner-appellee. Smith, James, Rowlett Cohen, L.L.P., by Margaret Rowlett, for guardian ad litem.
Assistant Appellate Defender J. Lee Gilliam for respondent-appellant.
Guilford County No. 08 JT 847.
M.A.W. (hereinafter referred to by the stipulated pseudonym of "Madison") is a female child who was born in the first quarter of 2008. Respondent is Madison's mother, who filed notice of appeal on 21 June 2010 from an order terminating her parental rights to Madison. Acknowledging that she did not file timely notice of appeal, having filed it one day late, respondent has filed a petition for a writ of certiorari to permit review of the order. Given the lack of opposition by petitioner and the guardian ad litem to respondent's request for review, the de minimis lapse of time between the expiration of the time for giving notice of appeal and actual filing of the notice of appeal, and the permanence of termination of a fundamental right, we allow respondent's petition for writ of certiorari.
The father of M.A.W. also filed notice of appeal but withdrew his appeal after the record on appeal was filed in this Court.
On 9 December 2008, Guilford County Department of Social Services (DSS) filed a petition alleging that Madison was neglected and dependent. DSS obtained custody of Madison on the same date pursuant to a nonsecure custody decree. The court adjudicated Madison as neglected and dependent by an order filed on 18 February 2009. DSS filed the petition to terminate the parental rights of Madison's parents on 12 January 2010. At the call of the termination petition for hearing on 13 April 2010, respondent's counsel made an oral motion to continue the hearing, stating respondent could not attend the hearing because respondent had injured her ankle and had been hospitalized. The court denied the motion and proceeded to conduct the hearing in respondent's absence. The court entered its order terminating parental rights on 19 May 2010 based upon grounds listed in N.C. Gen. Stat. § 7B-1111(a)(1) (parent's willful neglect of child), N.C. Gen. Stat. § 7B-1111 (a)(2) (parent's failure to make reasonable progress in correcting conditions that led to removal of child), and N.C. Gen. Stat. § 7B-1111(a)(6) (parent is incapable of providing for proper care and supervision of the child).
Respondent first contends that the court erred by denying her motion to continue the termination of parental rights hearing because she was unable to walk due to a leg injury and was hospitalized. Continuance of a hearing in a juvenile proceeding is governed by N.C. Gen. Stat. § 7B-803, which provides:
The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.
N.C. Gen. Stat. § 7B-803 (2009). "A trial court's decision regarding a motion to continue is discretionary and will not be disturbed on appeal absent a showing of abuse of discretion." In re J.B., 172 N.C. App. 1, 10, 616 S.E.2d 264, 270 (2005). To overturn a discretionary ruling, a showing must be made that the ruling "was so arbitrary that it could not have been the result of a reasoned decision." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). "Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. The chief consideration is whether granting or denying a continuance will further substantial justice." In re Humphrey, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (quoting Doby v. Lowder, 72 N.C. App. 22, 24, 324 S.E.2d 26, 28 (1984)). Whether extraordinary circumstances exist to mandate a continuance is a decision to be made on a case-by-case basis depending upon the particular factual situation. In re D.W., N.C. App. ___, ___, 693 S.E.2d 357, 359 (2010). For the following reasons, we hold the court did not err in this case.
In denying respondent's motion in the case at bar, the court found that respondent "was fully aware" of the date of the hearing, that respondent had been seen in public riding in a wheelchair after she sustained the injury, that the courthouse is wheelchair accessible, that respondent was not involuntarily confined to the Moses Cone Behavioral Health Center (Moses Cone), and that respondent had a history of trying to delay proceedings. Respondent contests only the court's findings that respondent was not being held at Moses Cone against her will and that she had a history of delaying proceedings. By not challenging the remaining findings, respondent and this Court are bound by them. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These findings show that respondent knew about the hearing and could have physically attended the hearing by using a wheelchair. Respondent did not present any evidence to show that she was being held at Moses Cone against her will or that she could not obtain her release to attend the hearing.
Evidence subsequently received at the termination hearing disclosed that respondent, using a wheelchair, visited the child on 5 April 2010, a week prior to the hearing.
Moreover, after denying the motion for a continuance, the court conducted a full hearing on the petition, heard testimony from several witnesses, and allowed respondent's counsel full opportunity to cross-examine each witness. A court reporter prepared a stenographic transcript of the hearing. "When . . . a parent is absent from a termination proceeding and the trial court preserves the adversarial nature of the proceeding by allowing the parent's counsel to cross examine witnesses, with the questions and answers being recorded, the parent must demonstrate some actual prejudice in order to prevail upon appeal." In re Murphy, 105 N.C. App. 651, 658, 414 S.E.2d 396, 400 (1992) (citation omitted). Citing In re D.W., ___ N.C. App. ___, 693 S.E.2d 357 (2010), respondent argues that she was prejudiced by the denial of the motion because her presence and testimony were crucial to rebut DSS's evidence as to her progress.
The facts of this case differ greatly from those of In re D.W., in which this Court held that the trial court erred by denying a motion for a continuance and conducting a hearing in the parent's absence. ___ N.C. App. at ___, 693 S.E.2d at 357-58. In that case, there was some question as to whether the parent had notice of the hearing; also, the trial judge had rushed or shortened the presentation of some evidence, at one point curtailing the questioning of a witness by the parent's counsel so that the trial judge could be somewhere else. Id. at ___, 693 S.E.2d at 358-60. We also expressed concern about the trial court's not knowing, prior to denying the motion for a continuance, that the proceeding entailed termination of parental rights. Id. at ___, 693 S.E.2d at 359. None of these situations are present in the case at bar, nor can respondent point to any errors by the trial court of similar severity that would have damaged the integrity of the proceeding in this case in the same way.
Respondent next contends that the court erred in concluding that grounds for terminating her rights existed. Respondent argues that crucial findings of fact are not supported by clear, cogent, and convincing evidence, and that the remaining findings are not sufficient to support the court's conclusions of law. We disagree.
Termination of parental rights must be based upon clear, cogent, and convincing evidence to show that a ground authorizing termination of parental rights exists. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). The appellate court reviews the court's order to determine whether the findings of fact are supported by such evidence and whether those findings support the conclusions of law. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004). The reviewing court is bound by the trial judge's findings of fact "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). Our review of a conclusion of law is de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
Respondent argues that the trial court erred in concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) to terminate her parental rights. That section states that the following constitutes grounds for termination: "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." Specifically, respondent argues that the trial court's findings of fact make the contradictory points that she willfully left Madison in foster care without making reasonable progress and that she was incapable of making such reasonable progress. We disagree.
As respondent notes, the trial court measured her progress on four specific objectives laid out in her case plan: remaining sober and "free of all illegal substances"; addressing mental health and domestic violence issues; providing and maintaining "a stable environment for herself and [Madison]"; and improving her "parenting skills and knowledge of parenting."
We note first that respondent's interpretation of the word "willfulness" is mistaken. "Willfulness" in this context does not connote "purpose and deliberation"; rather, having the "ability to overcome [the] problems" named in the order but failing to over a period of time suffices for N.C. Gen. Stat. § 7B-1111(a)(2). In re Bishop, 92 N.C. App. 662, 668, 375 S.E.2d 676, 680 (1989) (quotations and citations omitted).
Willfulness may be found where a parent has made some attempt to regain custody of the child but has failed to exhibit reasonable progress or a positive response toward the diligent efforts of DSS. Extremely limited progress is not reasonable progress. This standard operates as a safeguard for children. If parents were not required to show both positive efforts and positive results, a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose. Thus, our Courts have held that a respondent's prolonged inability to improve her situation, despite some efforts in that direction, will support a finding of willfulness regardless of her good intentions, and will support a finding of lack of progress during the year preceding the DSS petition sufficient to warrant termination of parental rights under section 7B-1111(a)(2).
In re J.W., 173 N.C. App. 450, 465-66, 619 S.E.2d 534, 545 (2005) (quotations and citations omitted). With that in mind, we turn to the relevant findings of fact and the evidence that supports them.
As to the first objective, respondent argues that certain portions of one finding of fact were not supported by evidence. Deleting those portions entirely, the remainder of the finding of fact — unchallenged, and therefore binding on this Court — states:
[respondent] has not been able to remain free from the use of illegal substances nor sober for more than 90 days at a time, since signing her case plan on January 8, 2009. [Respondent] entered Bridgeway Behavioral Health of High Point, NC[,] on April 20, 2009[,] and was unsuccessfully discharged on July 6, 2009. She failed to seek substance abuse treatment between the time she was discharged from Bridgeway on July 6, 2009[,] and her arrest on August 28, 2009, for her failure to appear at a hearing for probation violation, despite her acknowledged need for a structured treatment program[.] . . . Although [respondent] has sought out and participated in a number of treatment programs since January 8, 2009, she has either failed to maintain compliance with the various treatment programs she entered or she has failed to maintain long-term sobriety after discharge from any treatment program. Most recently [respondent] was accepted into D.R.E.A.M.S. Treatment Services, Inc. (Drug Rehabilitation: Education, Addiction and Mental Health Solutions) of Greensboro, N.C.[, on] February 22, 2010. She left this program at the end of 30 days. . . . [Respondent] told her family and the social worker that she was funded for 30 days only, and therefore, was forced to leave. Her case manager at D.R.E.A.M.S. was working to get her an extra 15 days and was close to getting it; further, it was likely that she could continue to get more time and funding.
The dates, times, and circumstances from this finding of fact come from almost a dozen reports by the guardian ad litem assigned to the case and DSS court summaries, all of which are in the record on appeal. As such, this finding of fact is supported by clear, cogent, and competent evidence, and the trial court's conclusion of law based on this finding of fact — that respondent has not remained sober and "free of all illegal substances" — is supported by the finding of fact.
As to the second objective, respondent does not dispute the trial court's finding of fact, which relates the sporadic attempts at treatment by respondent, including a three-month lapse in any treatment in late 2009. Respondent argues that this finding of fact does not support a conclusion of law that she did not make reasonable progress toward her goal of addressing her mental health issues, as it does not specifically consider the time period closest to the hearing on termination held on 13 April 2010. Respondent does not dispute the veracity of the finding of fact, and it is supported by the same reports noted above. As such, we hold that the finding of fact is supported by competent evidence. Whether this finding of fact could, on its own, support a conclusion that respondent has not made reasonable progress toward addressing this objective is not as clear; however, this is one of four areas on which the court based its conclusion of law, and the other three clearly support the conclusion.
As to the third and fourth objectives, we note that respondent argues that neither was valid grounds for the trial court to consider because they were part of the basis for removing Madison from the home. However, the adjudication and dispositional order from 18 February 2009 that lays out respondent's 8 January 2009 service agreement with DSS includes both "Provide and maintain a safe and stable environment for her daughter and her[self]" and "Improve parenting skills and knowledge of parenting" as one of the "needs and requirements" which she agreed to address. Respondent offers no arguments as to the findings of fact addressing these areas. Finding of fact 11.c recounts at length respondent's living arrangements; from July 2009 to February 2010, those arrangements consisted of, in chronological order, homelessness, imprisonment, residential substance abuse program, mother's home, Moses Cone Behavioral Hospital, unknown, Moses Cone Behavioral Hospital, rescue mission, different residential substance abuse program, and mother's home. Finding of fact 11.d recounts respondent's failure to attend seven visitations with Madison, her arrival at one visit smelling of alcohol, and the inconsistent nature of her recent visits, as well as the statement that "[v]isits tend to go very well when the mother is clean and sober, but she has problems maintaining her sobriety." As mentioned, these findings of fact are not challenged, and thus we take them as true.
Thus, three of the four findings of fact on which the trial court's conclusion of law was based are clearly supported by the evidence in the record. As such, the trial court's conclusion that respondent had not made reasonable progress toward addressing the conditions which led to the removal of the child is adequately supported, and respondent's argument fails.
We hold that the court's findings support its conclusion of law that respondent's parental rights may be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Because a finding of only one ground is necessary to support termination of parental rights, we need not consider the other two grounds found by the court. In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005).
Respondent's final contention is that the court abused its discretion when it concluded that termination of parental rights was in Madison's best interests. After determining that a ground exists for terminating parental rights, the trial court must consider whether termination of parental rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B-1110(a) (2009).
In making this determination, the court is to consider:
(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.
Id. We review the trial court's decision to terminate parental rights for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). "The children's best interests are paramount, not the rights of the parent." In re Smith, 56 N.C. App. 142, 150, 287 S.E.2d 440, 445 (1982).
Respondent argues that "[i]n light of the overwhelming evidence in the record that Madison had an intense bond with [respondent], it was manifestly unreasonable" for the court to determine that termination of respondent's parental rights was in Madison's best interest. Although a strong parent-child bond is a consideration in the determination of whether termination of rights is in the child's best interest, the trial court is entitled to give greater weight to other facts. In re C.L.C., 171 N.C. App. 438, 448, 615 S.E.2d 704, 709-10 (2005). In applying the factors listed in N.C. Gen. Stat. § 7B-1110(a), the court found that Madison is two years old; that Madison is likely to be adopted as she already is in an adoptive placement; that the permanent plan is adoption; that Madison is also very bonded with the relative placement proposed by respondent; that the potential adoptive mother has indicated that the proposed relative placement can continue to be a part of Madison's life; and that Madison is very bonded to her foster mother, whom she calls "Mommy," and is close to the other children in the foster home. These findings reflect thoughtful consideration by the court of the various factors. We conclude that the court did not abuse its discretion.
The order terminating respondent's parental rights to Madison is affirmed.
Affirmed.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).