Opinion
No. COA12–1431.
2013-08-6
In The Matter of D.C.
Mercedes O. Chut for respondent-mother. No brief for petitioners.
Appeal by respondent-mother from order entered 13 September 2012 by Judge Marshall Bickett in Rowan County District Court. Heard in the Court of Appeals 9 May 2013. Mercedes O. Chut for respondent-mother. No brief for petitioners.
ELMORE, Judge.
This appeal arises from a private petition to terminate parental rights. On 23 August 2011, petitioners, Carolyn and Bobby McGee, filed a petition to terminate the parental rights of Crystal Hollingsworth (respondent) to D.C. (Dana) . The McGees were granted guardianship of respondent's daughter Dana under an order entered on 3 June 2010. On 13 September 2012, the trial court entered an order terminating respondent's parental rights to Dana. Respondent has appealed the entry of the order. After careful review, we affirm.
Pseudonyms are used to protect the identity of the juveniles and for ease of reading. Additional names have been replaced with pseudonyms elsewhere in this opinion to again protect the identity of the juveniles and the parties involved.
I. Background
Approximately two weeks after Dana's birth in June of 2008, the Rowan County Department of Social Services (DSS) received a report that respondent and her boyfriend, Joshua, called 911 because Dana was vomiting. DSS investigated and found that the family was in need of services. DSS filed a petition on 2 January 2009 alleging that Dana was a neglected juvenile because the living conditions within the home were injurious to her welfare, and that she did not receive proper care, supervision, or discipline. Pursuant to a non-secure custody order, Dana was removed from respondent's home and was placed into a kinship care placement with the McGees.
On 15 May 2009, the trial court adjudicated Dana neglected by respondent and her biological father, David. A permanent plan for reunification was implemented; it required that respondent: 1) complete a mental health assessment and psychological evaluation, 2) attend parenting classes, 3) comply with random drug screens, 4) work with the Rowan County Health Department maternity coordinator, and 5) visit Dana and demonstrate parenting skills. Respondent was granted weekly supervised visits with Dana in the McGee's home on Fridays and Saturdays pursuant to a visitation plan.
David has not played an active role in this case and has relinquished his parental rights to Dana.
After a hearing on 22 April 2010, the trial court entered an order granting the McGees legal guardianship of Dana. The trial court found that respondent had missed several visits with Dana, appeared to have a weak bond with her, and demonstrated an unwillingness to maintain constant visitation even after requesting a change to the visitation plan. However, the trial court granted respondent supervised visitation to be arranged through the Visitation Station. The guardianship order terminated further court review of the case and released DSS and all other parties in the matter.
After the entry of the guardianship order, respondent did not visit Dana from June 2010 to May 2011. However, on 8 December 2010, respondent filed a motion for contempt on the basis that the McGees violated the guardianship order by failing to contact the Visitation Station to set up visitation. Thereafter, respondent dismissed the contempt motion because the McGees satisfied an agreement between the parties by contacting the Visitation Station. Mrs. McGee asserted that she was unaware it was her responsibility to make the initial contact with the Visitation Station. Furthermore, Mrs. McGee testified that respondent never contacted her prior to serving the motion for contempt to request visitation despite the fact that Mrs. McGee made it known to respondent that she may visit Dana anytime.
Respondent attended the required initial intake at the Visitation Station in January 2011; thereafter, she did not arrange to visit with Dana until May 2011. On 23 August 2011, the McGees filed a petition to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1103. On 13 September 2012, the trial court entered an order terminating respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and (2).
I. Adjudication
Respondent argues that the trial court erred in concluding that grounds existed to terminate her parental rights. We disagree.
In order for the trial court to find grounds to terminate a parent's rights under N.C. Gen.Stat. § 7B–1111(a)(2), it must
determine by clear, cogent and convincing evidence that a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and, further, that as of the time of the hearing, as demonstrated by clear, cogent and convincing evidence, the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child. Evidence and findings which support a determination of “reasonable progress” may parallel or differ from that which supports the determination of “willfulness” in leaving the child in placement outside the home.
In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (2005). “To uphold the trial court's order, we must find that the respondent's failure was willful, which is established when the respondent had the ability to show reasonable progress but was unwilling to make the effort.” In re Shermer, 156 N.C.App. 281, 289, 576 S.E.2d 403, 409 (2003). “A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.” In re O.C., at 465, 615 S.E.2d at 396. The required twelve-month time period begins “when the child [is] ‘left’ in foster care or placement outside the home pursuant to a court order, and end[s] when the motion or petition for termination of parental rights [is] filed.” In re A.C.F., 176 N.C.App. 520, 527, 626 S.E.2d 729, 734 (2006). “Such an interpretation provides parents with at least twelve months' notice to correct the conditions which led to the removal of their children before being made to respond to a pleading seeking the termination of his or her parental rights.” Id.
On appeal, respondent challenges the sufficiency of the evidence supporting findings of fact 9A, 9B, 9D, 9E, 9F, 9G, 9H, 11D, 11F, 11J, and 11K. Findings 9H and 11K are more accurately conclusions of law and are discussed in section III. “Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary.” In re S.R.G., 195 N.C.App. 79, 83, 671 S.E.2d 47, 50 (2009). Because the trial court may terminate parental rights upon finding only one ground under N.C. Gen.Stat. § 7B–1111, we will only address the challenged findings that correspond with the trial court's decision to permanently terminate respondent's parental rights per N.C. Gen.Stat. § 7B–1111(a)(2). As such, we hold that challenged findings of fact 9A, 9B, 11G, 11H, 11I, 11F and 11J are unnecessary to affirm the trial court's termination of parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), and we decline to address them. Assuming arguendo that these challenged findings are not supported by clear, cogent, and convincing evidence, the record contains ample evidence to support the termination of respondent's parental rights. See In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006) (holding that “[w]hen ... ample other findings of fact support an adjudication of neglect, erroneous findings unnecessary to the determination do not constitute reversible error.”).
The pertinent challenged findings of fact are as follows:
9D. Between August 14, 2009 and October 8, 2009, respondent had 17 opportunities to visit with [Dana]. She only visited 7 times.
9E. Between October 31, 2009 and the April 2010 guardianship order, there were no visits recorded between respondent and the juvenile. From April 2010 until May 2011, the respondent attended a birthday party for the juvenile at the invitation of petitioners, but except for that, there were no visits requested by the respondent to see the juvenile.
9F. The petitioners went to orientation in January 2011 to set up visits between respondent and the juvenile at the Rowan County Visitation Station, but respondent did not complete orientation until March 2011, and did not schedule a visit until May 22, 2011. After May, there were a total of 12 visits scheduled over a period of 9 months. The respondent cancelled or no-showed at eight of these, and was late for two that she did attend. There was very little interaction during the visits between the respondent and the juvenile.
9G. The respondent failed to show at her last scheduled visit in January, 2012, and after that point, Visitation Station staff were unable to make contact with her. She has had no visits with the juvenile since that time, except for seeing the juvenile at two family functions where the petitioners had brought her. There had been no attempt by respondent to schedule a visit with the juvenile since December 2011.
9H. The juvenile as been in foster care or out of home placement for a period far in excess of twelve months without making reasonable progress in correcting the conditions that led to her removal.
11D. [Dana] has a very weak bond, if any, with respondent. Their interactions have been sporadic and short, and when they have visited, the respondent has rarely engaged in play with [Dana]. At family gatherings, and when respondent visits family who live next to the juvenile, she often does not even speak to [Dana].
On appeal, respondent argues that the trial court lacked clear, cogent, and convincing evidence to enter the challenged findings because they suggest that respondent was responsible for the infrequency of visits with Dana. Respondent asserts that the McGees are just as culpable for the infrequency of visits because: 1) respondent had to file a contempt motion to initiate visits, 2) the McGees “no showed” at one visit and cancelled another, 3) the McGees did not facilitate visits with Dana after visits at the Visitation Station ceased, and 4) the guardian ad litem did not conclude that respondent was responsible for her lack of contact with Dana. Respondent also takes issue with finding 15G, that there “was very little interaction during visits between respondent and the juvenile.”
Upon review of the record, we hold that there is sufficient evidence to support the challenged findings. Witness testimony about the frequency of respondent's visits with Dana support findings of fact 9D, 9E, 9F, and 9G. Richard Ballard, program manager at Adolescent and Family Counseling, testified that respondent attended an initial intake with the Visitation Station on 12 January 2011, approximately nine months after the guardianship order was entered. After the intake, respondent did not see Dana until 9 May 2011. Respondent's next contact with the Visitation Station occurred on 22 September 2011, where respondent was required to complete the initial intake a second time due to the significant lapse in time between then and her 9 May visit. Thereafter, respondent visited Dana in October 2011. In a period of almost a year, Mr. Ballard testified that of fourteen scheduled visits, five took place. Respondent cancelled five of the visits and was late to two of the five that occurred. She also failed to attend the final visit scheduled for 29 January 2011.
Respondent filed a Motion for Contempt alleging that the McGees were withholding visitation. However, the motion was later dismissed, and there is evidence in the record that the McGees made no willful attempt to keep respondent from visiting Dana.
Mrs. McGee also testified that after the April 2010 guardianship order was entered, respondent did not see Dana until May 2011 at the Visitation Station. Mrs. McGee stated that respondent was always welcome to visit Dana in her home. However, on numerous occasions, Mrs. McGee saw respondent visiting next door without stopping to see Dana. Prior to filing the motion for contempt, respondent did not contact the McGees to request that they initiate visits at the Visitation Station.
Additionally, the record also contains evidence regarding the weak bond between respondent and Dana that is sufficient to support finding 11D. Ballard testified that during the October 2011 visit, staff at the Visitation Station noted that respondent did not talk or communicate much with Dana. During the November 2011 visit, respondent again did not talk much to Dana and “eye contact was minimum.” Mrs. McGee testified that respondent attended Dana's second birthday party for only approximately twenty to thirty minutes. She did not interact with Dana at the party. Respondent also attended Dana's third birthday party but had limited interaction with her.
Finding of fact 9H is supported by evidence that Dana has resided with the McGees since she was approximately two weeks old. Although respondent made limited efforts to see Dana, she failed to consistently follow through with visitation. Furthermore, the record indicates that respondent has not made reasonable progress in correcting the conditions that led to Dana's removal. Respondent has had two additional children since the adjudication hearing, both of whom have been removed from her care by DSS due to suspected neglect. Thus, respondent has not sufficiently shown reasonable progress under the circumstances.
Given the evidence in the record, we conclude that the challenged findings of fact are supported by clear, cogent and convincing evidence. We also find that the trial court's findings support its conclusion that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) (2011). Therefore, we need not address respondent's further arguments regarding termination pursuant to G.S. §§ 7B–1111(a)(1) (2011).
III. Disposition
Respondent argues that the trial court erred in concluding that it was in Dana's best interests to terminate her parental rights. Specifically, respondent contends that the trial court erred in failing to consider evidence that the McGees lacked the financial resources and the physical health to care for Dana. We disagree.
“After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest.” N.C. Gen.Stat. § 7B–1110(a) (2011). “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 determination of whether termination is in the best interests of the minor child is governed by N.C. Gen.Stat. § 7B–1110:
In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
(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) (2011).
In the instant case, the trial court made the following findings regarding the best interests of Dana:
11A. Petitioners are prepared to file an adoption petition for the juvenile, and it is stipulated that termination of parental rights is a condition precedent to adoption.
11B. [Dana] calls the petitioners “mommy” and “daddy” and has done so since she could talk. She calls their adult son “brother.” She has a strong emotional bond with petitioners, and they with her.
11C. [Dana] is now four years old. She remembers no other home than that of the petitioners....
11D. [Dana] has a very weak bond, if any, with respondent....
11G. The respondent has not provided a stable or appropriate home for her other children, who have been removed from her care within the last twelve months by DSS and are under investigation at this time for neglect/abuse.
11H. The respondent cannot provide the juvenile with safety or security at this time.
11I. The respondent cannot provide consistency of care for the juvenile.
11K. That the termination of respondent's parental rights is in the best interest of the juvenile as it will achieve a permanent plan for her.
Given these findings, we conclude that the trial court satisfied the requirements of N.C. Gen.Stat. § 7B–1110 (a). Furthermore, Dana has resided with the McGees almost exclusively since birth. Now, at approximately five-years old, the McGees are the only care-takers Dana has known. The record indicates that the McGees have adequately provided for the clothing, food, and medical needs of Dana. As such, we affirm the trial court's conclusion that terminating respondent's parental rights was in Dana's best interests.
IV. Conclusion
In sum, the trial court did not err in finding that grounds existed to terminate respondent's parental rights. As such, we affirm the adjudication portion of the trial court's order. Additionally, the trial court made sufficient findings per N.C. Gen.Stat. § 7B–1110(a) to support its conclusion that terminating respondent's parental rights was in Dana's best interests. Accordingly, we affirm.
Affirmed. Judges GEER and DILLON concur.
Report per Rule 30(e).