Opinion
No. COA15-931
05-17-2016
IN THE MATTER OF: A.T., A.T.T., J.T.M.
J. Edward Yeager, Jr. for Petitioner-Appellee Martin County Department of Social Services. Peter Wood for Respondent-Appellant Mother. Ellis & Winters, LLP, by Emily E. Erixson, for Guardian ad Litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Martin County, Nos. 04 JT 76-77; 12 JT 09 Appeal by Respondent-Mother from orders entered 18 June 2015 by Judge Christopher B. McLendon in District Court, Martin County. Heard in the Court of Appeals 18 April 2016. J. Edward Yeager, Jr. for Petitioner-Appellee Martin County Department of Social Services. Peter Wood for Respondent-Appellant Mother. Ellis & Winters, LLP, by Emily E. Erixson, for Guardian ad Litem. McGEE, Chief Judge.
Respondent-Mother ("Mother") appeals from the trial court's orders terminating her parental rights as to A.T., A.T.T., and J.T.M. ("the Children"). We affirm.
A fourth sibling, A.B., was involved in this case for a time, but he was placed with his father in March 2012, and permanent custody was granted in September 2013. This opinion addresses only the circumstances surrounding the remaining three children: A.T., A.T.T., and J.T.M.
I. Background
Martin County Department of Social Services ("DSS") first became involved with Mother in February 2004, following a report that A.T. and A.T.T. "were underweight, [showed] failure to thrive, [were] not fed very well, and [that] several medical appointments [had] not [been] kept." Another report was filed in November 2004, alleging improper discipline by Mother. Following that report, A.T. and A.T.T. were removed from Mother's home and taken into DSS custody. During their removal, Mother threatened DSS workers and she was convicted in May 2005 of communicating threats and attempted felony child abuse. A.T. and A.T.T. were returned to Mother's care in April 2006, after Mother followed through with her case plan and completed the recommended mental health therapy.
J.T.M. had not yet been born.
J.T.M. was born in October 2007. DSS received four child protective services reports between 2008 and 2010 that alleged improper discipline, improper care, injurious environment, and cruel and grossly inappropriate behavior modification by Mother. DSS received an additional child protective services report on 13 March 2012, again alleging inappropriate discipline by Mother. DSS substantiated the report and took all of the Children into nonsecure custody. DSS filed juvenile petitions on 14 March 2012, alleging that the Children were abused. The petitions alleged that, on 12 March 2012, Mother struck A.T. and A.T.T. with a belt, leaving marks, bruises, and broken skin, and J.T.M. saw it happen. The petition as to J.T.M. also alleged that J.T.M. had "questionable marks on the back of [her] right leg and possibly old marks or [scars] on her right arm and upper left arm." It was further alleged that Mother admitted to striking A.T. and A.T.T. with a belt, ten times each.
The trial court adjudicated the Children abused and neglected in an order dated 7 May 2013. After conducting a dispositional hearing, the trial court found, in an order dated 24 September 2013, that Mother had "a pattern of inappropriate discipline and abuse" of the Children and that DSS "ha[d] been unable to make reasonable efforts to reunite the [C]hildren with [Mother] because of the psychological harm the [C]hildren have endured and [because of their] fear of [Mother.]" The trial court further found that: (1) "[Mother] ha[d] consistently refused to cooperate with [DSS] in any efforts to make reunification a possibility[;]" (2) "for over a year [Mother's] contacts with [DSS had] been inconsistent and very sporadic[;]" and (3) from the time the Children were placed in DSS custody in March 2012 "until [August 2013,] there ha[d] been no contact by [Mother] with [DSS] indicating any desire to have contact with the [C]hildren."
The trial court entered a permanency planning order on 6 February 2014, ceasing reunification efforts and changing the permanent plan for the Children to adoption. Mother was convicted in early May 2014 of felony child abuse for the discipline on 12 March 2012 that led to DSS taking custody of the Children for a second time. DSS filed petitions on 5 May 2014 to terminate Mother's parental rights based on four grounds: (1) abuse; (2) willfully leaving the Children in foster care for more than twelve months without showing reasonable progress under the circumstances to correct the conditions that led to the removal; (3) failure to pay a reasonable cost of care; and (4) dependency. See N.C. Gen. Stat. §§ 7B-1111(a)(1)-(3), (6) (2013). After a hearing, the trial court terminated Mother's parental rights as to A.T., A.T.T., and J.T.M., based on all four grounds alleged in the petitions, in orders dated 21 October 2014 ("the termination orders"). Mother appeals.
II. Standard of Review
In termination of parental rights cases, this Court determines "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 S.C.R., 198 N.C. App. 525, 531, 679 S.E.2d 905, 909 (2009). "If the trial court's findings of fact are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." Id. (quotation marks omitted). Unchallenged findings of fact "are conclusive on appeal and binding on this Court." Id. at 532, 679 S.E.2d at 909. "The trial court's conclusions of law are reviewable de novo[.]" In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (quotation marks omitted).
III. Analysis
Mother contends the trial court erred in concluding that any grounds existed to terminate her parental rights. We disagree.
"A finding of [any] one statutory ground [under N.C.G.S. § 7B-1111] is sufficient to support the termination of parental rights." In re T.C.B., 166 N.C. App. 482, 485, 602 S.E.2d 17, 19 (2004). In the present case, the trial court concluded that Mother's parental rights could be terminated under N.C.G.S. § 7B-1111(a)(2). N.C.G.S. § 7B-1111(a)(2) provides that a trial court may terminate parental rights 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." In considering this ground for termination,
the trial court must employ a two-part analysis and determine: (1) that a child has been willfully left by the parent in foster care or placement outside the home for over 12 months; and (2) as of the time of the hearing, that the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child.In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
With regard to the trial court's termination of Mother's parental rights under N.C.G.S. § 7B-1111(a)(2), Mother claims in her brief to challenge the following findings of fact in each of the termination orders:
20. After the [C]hildren were placed in DSS custody, Mother became uncooperative, not letting DSS know where she was living. When she was ordered to
provide her address, the person answering the door for the social worker advised that Mother did not live there. Mother did not make herself available to DSS.
21. Mother has not made substantial progress toward the goals in her case plan, such that the risk of harm to a child in . . . [her] care remains high, in that:
a. Mother has not had consistent therapy to address the issues that resulted in the [C]hildren coming into care.
b. Mother does not recognize the damage that her discipline inflicts on her children.
c. Mother has not been cooperative with DSS.
d. Mother has not provided support for her child.
e. Mother has only recently asked to visit the [C]hildren.
. . .
24. [Mother] . . . [has] willfully and not due solely to poverty left the [C]hildren in a placement outside the home . . . for more than 12 months without a showing to the satisfaction of the [c]ourt that reasonable progress under the circumstances had been made to correct the conditions which led to the removal of the [Children] within the meaning of N.C. Gen. Stat. 7B-1111(a)(2).
A. Unchallenged Findings
As a preliminary matter, in the respective termination orders, Mother does not challenge finding of fact 19: that Mother received an evaluation from a psychologist in the fall of 2013 and "did not follow through on [the psychologist's] recommendations that [she] seek consistent counseling and related services." This finding is binding on appeal. See In re S.C.R., 198 N.C. App. at 532, 679 S.E.2d at 909. Similarly, Mother provides no argument as to findings of fact 21(a) and 21(b), regarding her "not [having] consistent therapy to address the issues that resulted in the [C]hildren coming into" DSS custody and her failure to "recognize the damage that her discipline inflict[ed] on her children." Those findings are binding on this Court as well. See id.
B. Willfulness
As to findings of fact 20, 21(c), and 24, regarding Mother's alleged uncooperativeness with DSS, Mother does not contend that those findings are unsupported by the evidence. Instead, Mother argues that her lack of cooperation with DSS while the Children were in DSS custody was not "willful" because her actions "could be attributed to her [pending] criminal charges and the refusal of the trial court to allow visitation" between her and the Children. However, at the termination hearing, Mother never claimed she was hindered from cooperating with DSS due to her pending charges or subsequent incarceration. Mother presents this theory for the first time on appeal. Our Supreme Court has long held that an issue is not properly preserved for appeal when a different theory is presented on appeal than was argued at the lower court hearing. Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934); see N.C.R. App. P. 10(a)(1) ("In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make.").
Regardless, Mother's argument is without merit. First, Mother's argument that her lack of cooperation with DSS while the Children were in DSS custody was not "willful" because her actions "could be attributed to her [pending] criminal charges" is, at best, speculative. (emphasis added). Second, a finding of "[w]illfulness 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 J.K.C., 218 N.C. App. 22, 30, 721 S.E.2d 264, 271 (2012) (quotation marks omitted).
In support of Mother's contention that she did not "willfully" fail to cooperate with DSS, Mother cites to In re T.C.B., 166 N.C. App. at 487, 602 S.E.2d at 20, that held a respondent who was "instructed by legal counsel not to have any contact with the minor child nor the mother until the pending criminal charges were resolved" did not "willfully" abandon the child. However, in the present case, there is no evidence that Mother was instructed by her trial counsel to avoid contact with DSS or the Children. Instead, evidence was presented at the termination hearing that Mother initially cooperated with DSS for about a month, until "something occurred and she got angry and cut that off and the contact ended." Even if we were to assume arguendo that Mother's behavior could be seen as evidence that she was strategically avoiding DSS in light of her pending child abuse charges, the evidence in the record by no means compels such a finding.
We also are unpersuaded by Mother's argument that she did not "willfully" fail to cooperate with DSS merely on the ground that she was incarcerated after May 2014. "[I]ncarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care." In re J.K.C., 218 N.C. App. at 30, 721 S.E.2d at 271 (quotation marks omitted). Mother had more than two years prior to her incarceration to make progress on her case plan, but she failed to do so. Findings of fact 20, 21(c), and 24 are binding on appeal. In re S.C.R., 198 N.C. App. at 531-32, 679 S.E.2d at 909.
C. Visitation
As to finding of fact 21(e), that "Mother has only recently asked to visit the [C]hildren[,]" Mother contends this finding "was inaccurate, because the [trial] court made it clear it would not grant her visitation until" it was recommended by a therapist. Mother's argument seeks to clarify, rather than challenge, the factual underpinnings of finding of fact 21(e) — Mother does not argue that she asked to visit the Children prior to their abuse adjudications in 2014. Moreover, the evidence presented at the termination hearing sufficiently established that Mother showed no interest in the welfare of the Children from the time they were removed from her custody until the time they were adjudicated abused. This finding is binding on appeal. In re S.C.R., 198 N.C. App. at 531-32, 679 S.E.2d at 909.
D. Support
Finally, as to finding of fact 21(d), that "Mother ha[d] not provided support for" the Children while they were in DSS custody, even if we accept arguendo Mother's argument that this finding also needs clarification because "she did not have the means to pay support, because she was unemployed" throughout the pendency of this action, we believe the remaining findings in the termination orders support the trial court's decision to terminate Mother's parental rights under N.C.G.S. § 7B-1111(a)(2). Specifically, the trial court established that Mother (1) was uncooperative with DSS throughout most of this action, (2) did "not [have] consistent therapy to address the issues that resulted in the [C]hildren coming into" DSS custody; (3) failed to "recognize the damage that her discipline inflict[ed] on her children[;]" and (4) showed no interest in the welfare of the Children from the time they were removed from her custody until the time they were adjudicated abused in 2014. These findings, in turn, support the trial court's determination that Mother willfully left the Children in DSS custody for more than twelve months without making reasonable progress to correct the conditions which led to the removal of the Children from her custody and for reasons other than her alleged poverty.
Moreover, because a "finding of [any] one statutory ground [under N.C.G.S. § 7B-1111] is sufficient to support the termination of parental rights[,]" see In re T.C.B., 166 N.C. App. at 485, 602 S.E.2d at 19, we need not address Mother's remaining arguments regarding the other three grounds for terminating her parental rights. The termination orders are affirmed.
AFFIRMED.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).