Opinion
No. COA09-1456
Filed 4 May 2010 This case not for publication
Appeal by Guardian ad Litem from order entered 31 July 2009 by Judge Charles P. Bullock in Harnett County District Court. Heard in the Court of Appeals 12 April 2010.
Pamela Newell Williams, for petitioner-appellant. Lisa Skinner Lefler, for respondent-appellee.
Harnett County No. 07 JT 181.
The guardian ad litem, on behalf of the minor child M.M.E., appeals the dismissal of the petition to terminate respondent-father's parental rights on the grounds the trial court's conclusions of law are not supported by the evidence or the findings of fact. After careful consideration, we affirm the order of the trial court.
M.M.E. came into the custody of the Harnett County Department of Social Services ("DSS") by non-secure orders entered 13 September 2007. She has remained continuously in DSS custody since that time. On 14 March 2008, the trial court adjudicated M.M.E. abused and neglected, and ordered that custody continue with DSS. At the time of that hearing, respondent-father was incarcerated in California. A 90-day hearing was held on 13 June 2008, whereby the trial court granted DSS's request to cease reunification efforts with respondent-father. M.M.E.'s mother relinquished her parental rights on 20 November 2008.
On 17 October 2008, respondent-father filed a "Motion for Kinship Placement" seeking to have M.M.E. placed with her grandparents, who resided in Sanford. He also filed motions seeking to be delivered from federal prison to North Carolina in order to attend the hearing or in the alternative for telephonic communications to be set up so he could participate in the case. DSS agreed to conduct a kinship assessment of the paternal grandparents, but the trial court denied the motion for respondent-father to be delivered to North Carolina. The trial court issued an order after the permanency planning review hearing directing that the permanent plan for M.M.E. be changed to adoption. DSS conducted a home visit of the paternal grandparents on 29 December 2008, but denied the kinship placement for various reasons.
On 31 December 2008, DSS filed a petition to terminate respondent-father's parental rights to M.M.E. In the petition, DSS alleged as grounds the following: (1) neglect pursuant to N.C.G.S. § 7B-1111(a)(1); (2) willfully leaving the juvenile in foster care for more than twelve months without making reasonable progress to correct the conditions leading to the removal of the juvenile pursuant to N.C.G.S. § 7B-1111(a)(2); (3) willful failure to pay a reasonable cost of care for the juvenile pursuant to N.C.G.S. § 7B-1111(a)(3); and (4) willful abandonment pursuant to N.C.G.S. § 7B-1111(a)(7).
Respondent-father was released from prison in April 2009 and was deported to Mexico. On 5 June 2009, respondent-father filed an answer and a motion to dismiss the petition, alleging lack of jurisdiction for failure to timely and properly serve respondent with the petition.
The hearing was held on 5 June and 12 June 2009. Shasta H., the minor child's mother, testified that she has known respondent-father for about ten or eleven years although she never lived with him, that she had M.M.E. when she was 17 and respondent-father was 18, and respondent-father went to jail before M.M.E. was born. When M.M.E. was three months old, Shasta took her to visit respondent-father in prison. It was the only time respondent-father saw M.M.E. Shasta stated that respondent-father sent her letters, Christmas cards, and birthday cards to M.M.E., approximately 150 in all. She turned the letters over to DSS social worker Amanda Messer. She testified that respondent-father was in and out of jail the whole time she knew him, that he would drink and do drugs, and he did not work. She remained friends with him when he was not in jail. He never provided any support for her or for M.M.E.
DSS foster care social worker Amanda Messer testified that the minor child came into foster care on 13 September 2007. On 12 October 2007, she sent respondent-father a family services agreement in both English and Spanish, along with a note asking him to sign and return the agreement. The goals of the agreement were: (1) attend and participate in parenting classes, (2) attend domestic violence perpetrator classes, and (3) cooperate with and pay child support. Ms. Messer also sent several letters to respondent-father with updates about the case and M.M.E.'s well-being, sometimes accompanied by a letter written by M.M.E. Respondent-father sent some letters in return asking for assistance in being reunited with his daughter as well as setting up weekly telephone calls with her. When he was deported, he sent a letter to DSS with his new address in Mexico where he could continue receiving information about the case. He also sent letters to Ms. Messer addressed to M.M.E., along with a handmade leather bracelet for M.M.E. to wear. He did not return the family services agreement, nor did he mention it in any of his correspondence with DSS. Ms. Messer stated that she and respondent-father never had discussions about financial support for the child, and he has never paid child support. She was not aware if parenting classes or domestic violence classes were available where respondent-father was incarcerated. She did not have specific information about whether respondent-father earned any money while in prison.
The only plan respondent-father gave for the minor child was to have his parents in Sanford take care of her. Ms. Messer conducted a home visit of the paternal grandparents on 29 December 2008, and completed a kinship assessment. DSS denied the kinship placement for several reasons. Mental professionals advised keeping M.M.E. in the same placement as her two siblings, and if M.M.E. were placed with her paternal grandparents, she would be separated from her siblings since they have different fathers. Further, M.M.E. expressed that she did not want to live with her paternal grandparents. There were also concerns about language differences, in that M.M.E. does not speak Spanish very well, even though she understands it, and her paternal grandparents do not speak any English, only Spanish. The paternal grandparents also provided conflicting information on what type of discipline they had used on their own children in discussing what methods they would use with M.M.E., which caused DSS concern given that M.M.E. had been physically abused.
On adjudication, the trial court determined that DSS had not presented clear and convincing evidence of any of the four grounds for termination which were alleged in the petition. The trial court entered an order on 31 July 2009 with findings of fact and conclusions of law on the issue of grounds for termination, and ordered that the petition to terminate respondent-father's parental rights be dismissed. The guardian ad litem gave notice of appeal on 28 August 2009.
We first address issues raised by respondent-father that the guardian ad litem committed multiple violations of the North Carolina Rules of Appellate Procedure in her appeal and arguing that the appeal should be dismissed. First, respondent-father contends the guardian ad litem failed to include assignments of error in the settled record on appeal, along with corresponding record and page numbers, and she failed to list assignments of error relevant to the argument contained in the brief as required by the rules. Although the rules were recently amended to abolish assignments of error, the amendments became effective as of 1 October 2009 and apply to appeals filed on or after that date. The instant case was appealed prior to that date; therefore, the previous version of the rules governs the case at bar, and the guardian ad litem should have included assignments of error in the record and brief pursuant to Rule 10. N.C.R. App. P. 10(c) (amended Oct. 1, 2009). We note that the guardian ad litem did include a list of proposed issues on appeal pursuant to the amended version of Rule 10. N.C.R. App. P. 10(b). Respondent also argues that the guardian ad litem's brief fails to state the standard of review pursuant to N.C.R. App. P. 28(b)(6) (amended Oct. 1, 2009).
Given the important issues at stake in this termination of parental rights case, and the fact that respondent-father was given notice of the issues to be raised in the guardian ad litem's brief, we exercise our discretion pursuant to Rule 2 of the Rules of Appellate Procedure to suspend the rules in order to resolve this case. N.C.R. App. P. 2 (amended Oct. 1, 2009).
We now turn to the substantive issue, which is whether the trial court's conclusions of law are supported by the evidence and the findings of fact. Termination of parental rights is a two-step process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudication phase of the hearing, the petitioner must show by clear and convincing evidence that at least one statutory ground for termination exists. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). "The standard of 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 Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (internal quotation marks omitted), disc. review denied, In re D.S. DOB: 9-19-87, S.S. DOB:2-8-89, J.S. DOB: 7-6-90, A.S. 2-7-92, 358 N.C. 543, 599 S.E.2d 42 (2004)
The four grounds for termination alleged by DSS in its petition are set forth in the Juvenile Code as follows:
(a) The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.
(2) 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. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
(3) The juvenile has been placed in the custody of a county department of social services, . . . and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.
. . . .
(7) The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion. . . .
N.C. Gen. Stat. § 7B-1111(a) (2009).
The trial court made the following findings of facts on grounds as the evidence pertains to respondent-father before concluding none of the four grounds had been proven by clear and convincing evidence:
8. On March 14, 2008, the juvenile was adjudicated abused and neglected and the court awarded custody to petitioner DSS.
. . . .
14. At a young age, the juvenile's mother was involved in a relationship with the respondent father [the mother was 17 and the father 18 when [M.M.E.] was born]. While the mother was pregnant with [M.M.E.], the father was incarcerated in prison. The mother and father never lived together prior to or subsequent to the birth of the juvenile.
15. The respondent father never gave any money to the mother to help defray the cost of the juvenile's birth or her support after her birth. He never made or helped to make any plans for the care of the juvenile. The father did not have any mental or physical handicaps which would have precluded him from work. There was no evidence he had any disabilities.
16. The father has been in jail for most of the juvenile's life. When he got out of jail, he immediately got into trouble and was again incarcerated. The juvenile's mother saw the respondent father off and on. He went to jail prior to the birth of the juvenile for breaking and entering and larceny; he never had a job where he worked. He was involved with drinking and using drugs.
17. The respondent father saw the juvenile one time when the child was approximately three (3) months of age when the mother carried the child to see him while he was in prison in Henderson, North Carolina.
18. Until the juvenile was removed from her custody, the mother provided for the juvenile's sole care with the help of her father and others.
19. Through the years since the juvenile's birth, the mother estimated that she had received approximately 150 letters from the father addressed to the mother and/or the juvenile. The mother kept the letters and placed them in a suitcase and gave them to the DSS social worker assigned for the juvenile.
. . . .
21. The father was released from a federal prison facility in the State of California during the month of April 2009. He was immediately deported to Mexico where he is now residing. The father has been deported to Mexico once previously. The testimonies of the social worker and the father's mother indicated that the father had been sentenced to federal prison twice and that his second federal imprisonment was occasioned by his illegal entry into the United States.
22. After becoming involved with the juvenile's family, the DSS social worker contacted the respondent father at the federal prison in which he was incarcerated. He was first incarcerated in a unit in Texas and then transferred to units in California. During the time the juvenile has been in DSS care, the father has communicated with the social worker in writing several times. On two occasions, she sent letters from the juvenile to her father [February 15, 2008 and September 22. 2008]. When the juvenile was moved into a new foster home, the social worker sent a letter to the father on September 26, 2008. She sent a letter on December 2, 2008, and letters concerning action team meetings, the last being April 7, 2009.
23. The social worker prepared a suggested family services agreement [FSA] for the respondent father and mailed it to him on October 12, 2007. He never returned the FSA or [responded] to the social worker concerning the agreement and the three goals set forth therein. The goals in the proposed FSA [prepared in English and Spanish] were as follows:
a. Attend parenting classes.
b. Attend domestic violence classes.
c. Cooperate with and pay child support.
24. The father's first correspondence to the social worker was in December 2007. In this correspondence, he indicated that he desired for the juvenile to be returned to the mother and also indicated his desire for his parents who lived in Sanford, NC, to be considered for placement. He did not mention the FSA or its provisions.
. . .
26. Other than child support paid by the mother, DSS sustained the cost of the juvenile's care since placement in care. The father has not paid any child support.
27. In various letters from the father to the social worker, he expressed his desire to not have his parental rights terminated. He sent Christmas cards and other correspondence wherein he expressed his love and affection for his child.
28. There is no evidence to establish that the father had the ability to pay support for the juvenile.
29. Throughout the time the juvenile was in DSS care [at least from December 2007 to April 2009], the father stayed in touch with DSS.
Based on the evidence presented and the findings recited above, the trial court determined that none of the four grounds alleged by DSS had been established.
Neglect
A juvenile who is neglected is one who does not receive proper care, supervision, or discipline from a parent, guardian, custodian or caretaker, or who has been abandoned. N.C. Gen. Stat. § 7B-101(15) (2009). Although a prior adjudication of neglect may be considered by the trial court in a termination hearing, a parent's rights may not be terminated solely on the basis of past neglect where the conditions which led to the neglect no longer exist. In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231-32 (1984). Where a child has been out of the custody of the parent for some time, "[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. Determinative factors include "the fitness of the parent to care for the child at the time of the termination proceeding." Id. Incarceration, by itself, is insufficient to establish neglect in a termination case, but it is relevant to whether a child is neglected. In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
Here, the trial court determined that insufficient evidence was presented on the ground of neglect. In doing so, the trial court explicitly relied on this Court's decision in In re Shermer, 156 N.C. App. 281, 576 S.E.2d 403 (2003), which was decided on similar facts. In Shermer, the respondent-father was incarcerated when the minor child was adjudicated neglected, the mother voluntarily relinquished her parental rights, and the respondent-father contacted social services from prison seeking involvement in the case and asking not to have his parental rights terminated. In re Shermer, 156 N.C. App. at 282-84, 576 S.E.2d at 405-06. However, unlike the case sub judice, the respondent-father in Shermer contacted DSS when he was released from prison, he signed a case plan with social services, he was attempting to comply with the requirements of the case plan by the time of the termination hearing, he was in regular contact with his child, and he had had two visits with the child that went well. See id. The trial court in Shermer found the child neglected and terminated the father's rights on the grounds of neglect, willfully leaving the child in foster care without making reasonable progress, and willful abandonment. Id. at 285, 576 S.E.2d at 406. On appeal, this Court reversed the trial court's decision after determining that the evidence was not clear and convincing that the respondent-father had neglected the minor child. Id. at 288, 576 S.E.2d at 408.
The guardian ad litem argues that the evidence was sufficient to show that respondent-father has neglected the minor child and that neglect would likely continue since his behavior has not changed since the child was born. To support her argument, the guardian relies on In re P.L.P., in which this Court upheld a termination of parental rights on the grounds of neglect where the trial court found that the respondent-parent did not write to the minor child from prison although able to do so, did not provide any support for the child, and did not provide any love or support for the child. In re P.L.P., 173 N.C. App. at 10-11, 618 S.E.2d at 247. The guardian ad litem argues that In re P.L.P. is applicable here because the trial court specifically found that respondent-father has been in jail for most of the juvenile's life, he has never held a job, he is involved with drinking and drugs when he is not in jail, he has only seen the child once, and he has never provided any support for the child. We disagree.
We conclude that the facts of the instant case are closer to those found in Shermer than those found in In re P.L.P. In the latter case, the respondent-parent never wrote to the child from prison despite apparently having the ability to do so, would be incarcerated until the child reached majority, did not cooperate with local DSS, and had no involvement with the child for approximately five years. In re P.L.P., 173 N.C. App. at 9-11, 618 S.E.2d. at 247-248. Although the respondent-father in Shermer signed a case plan with social services, was taking steps to comply with his case plan, and was able to visit with the child in question before the termination hearing, these differences from the instant case do not obscure the similarities in behavior between the respondent in that case and respondent-father in the instant case. Here, respondent-father maintained contact with M.M.E. over the years by corresponding with her and expressing his love for her, he maintained contact with DSS about the progress of the case, and he expressed his desire not to have his parental rights terminated. As in Shermer, respondent-father in this case was released from prison; however, he was deported and is now living in Mexico and therefore unable to visit with the child in person.
The circumstances in the instant case are sufficient to support the trial court's determination that DSS has not presented clear and convincing evidence of respondent-father's neglect of the child. Therefore, we conclude that the trial court did not err in concluding based upon the evidence and the findings of fact that termination of respondent-father's parental rights may not be based on neglect.
Willful failure to make reasonable progress
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 (quoting In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001)), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005). "[I]ncarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care." In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987).
The guardian ad litem contends the trial court erred in concluding this ground was not proven where the evidence shows that respondent-father failed to respond in any way to the proposed family services agreement sent to him, nor did he take any steps to complete any of the items in the agreement. We disagree.
Here, the trial court determined that the evidence did not justify the ground of failure to make reasonable progress. The minor child was removed from the mother's home for abuse by the mother's boyfriend. DSS sent a family services agreement to respondent-father seeking to have him agree to attend parenting and domestic violence classes, and to have him pay child support. Although respondent-father failed to respond to the proposed family services agreement, he remained in contact with DSS, continued to correspond with the minor child, and sought to have telephone contact with the child. Further, the evidence did not show that respondent-father had the ability to comply with the proposed agreement. No evidence was presented that he had the ability to pay any child support, nor was there evidence showing whether parenting or domestic violence classes were available in the facility where respondent-father was incarcerated. We agree with the trial court that the evidence as presented does not clearly and convincingly show that respondent-father willfully left the child in foster care without making reasonable progress to correct the conditions which led to the removal of the child from her mother's home.
Failure to pay cost of care
In order to support termination of parental rights on the ground of willful failure to a pay a reasonable cost of care of the child, DSS has the burden of presenting evidence of the parent's ability to pay. N.C. Gen. Stat. § 7B-1111(a)(5); In re Ballard, 311 N.C. at 716-17, 319 S.E.2d at 233. "[N]onpayment would constitute a failure to pay a `reasonable portion' if and only if respondent were able to pay some amount greater than zero." In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982).
With regard to the ground of failure to pay cost of care, the trial court found that although evidence was presented that respondent-father had not paid any child support nor otherwise contributed to the cost of the child's care, there was no evidence from which a determination could be made that respondent-father had the ability to pay any support. Such a finding of ability to pay is essential before concluding that a parent has willfully failed to pay a reasonable cost of care for the juvenile. Although the guardian ad litem points to testimony by the child's mother that respondent-father "had the ability to earn money because he sent [M.M.E.] cards, and he made things for [her]," and the fact that respondent-father sent letters and cards as well as a handmade bracelet to M.M.E., we conclude that this evidence is inadequate to establish respondent-father's ability to provide monetary support. Since no evidence was presented to support such a finding, the trial court did not err in determining that DSS had failed to present clear and convincing evidence to support this ground for termination.
Willful abandonment
To establish willful abandonment pursuant to N.C.G.S. § 7B-1111(a)(7), DSS must present evidence that respondent-father willfully abandoned the minor child for the six months preceding the filing of the petition to terminate his parental rights. In re S.R.G., ___ N.C. App. ___, ___, 671 S.E.2d 47, 51 (2009). Since the petition in the instant case was filed on 31 December 2008, the determinative time period is 30 June 2008 to 31 December 2008. "Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence." In re Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986). "Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." Id. at 275, 346 S.E.2d at 514.
Here, although the relevant time frame at issue is not specifically addressed in the trial court's order, the trial court found that respondent-father sent approximately 150 letters to the juvenile's mother and/or the juvenile throughout the years since M.M.E.'s birth, he corresponded with DSS in writing on several occasions, he indicated his desire not to have his parental rights terminated, and he sent Christmas cards and other correspondence in which he expressed his love and affection for M.M.E. The evidence also shows that he sent his new address to DSS after he was deported to Mexico in order to maintain contact with DSS about the case. Respondent-father's behavior does not show a deliberate intention "to forego all parental duties." We conclude that the trial court's findings are supported by the evidence and that the findings of fact in turn support the trial court's conclusions that respondent-father did not willfully abandon the minor child.
Therefore, we conclude that the trial court did not err in entering its order dismissing the petition for termination of respondent-father's parental rights.
Affirmed.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).