Opinion
No. COA12–231.
2012-07-17
In the Matter of J.B. & J.X.B.
No brief filed for Vance County Department of Social Services. Administrative Office of the Courts, by Associate Counsel Deana K. Fleming, for Guardian ad Litem.
Appeal by Respondent from order entered 12 December 2011 by Judge J. Henry Banks in Vance County District Court. Heard in the Court of Appeals 25 June 2012. No brief filed for Vance County Department of Social Services. Administrative Office of the Courts, by Associate Counsel Deana K. Fleming, for Guardian ad Litem.
Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for Respondent.
STEPHENS, Judge.
Respondent is the father of J.B. (“Jessica”), born in October 2007, and J.X.B. (“James”), born in September 2008. In July 2008, Vance County Department of Social Services (“DSS”) filed a juvenile petition alleging that Jessica was a neglected and dependent juvenile. Two months later, when James was born, DSS filed a juvenile petition alleging that he was also a neglected and dependent juvenile. In support of the petitions, DSS alleged that the children's mother had not taken Jessica to some of her medical appointments; that the mother had drug and mental health issues; that Respondent and the mother had domestic violence issues; that Respondent had been arrested for violating a domestic violence protection order and criminal trespass; and that Respondent had not complied with an in-home service agreement. DSS obtained nonsecure custody of Jessica and James in July 2008 and September 2008, respectively.
Pseudonyms are used to protect the children's identities.
Following a 17 September 2008 hearing, the trial court adjudicated the children dependent based upon the parents' stipulation that the parents were unable to take care of the children's special needs and lacked an appropriate alternative child care arrangement. At the time of the adjudication, Respondent was incarcerated. The trial court ordered Respondent to contact DSS upon his release and develop a case plan in order to reunify with his children.
On 5 May 2009, Respondent entered into a case plan, which required him to: (1) complete parenting classes and demonstrate parenting skills during visitation; (2) obtain and maintain stable housing; (3) obtain and maintain stable employment; (4) obtain a mental health evaluation and follow the recommendations; and (5) submit to random drug screens.
Thereafter, in a 26 August 2009 permanency planning order, the trial court concluded that the best plan to achieve a safe and permanent home for the children was “to work a reunification plan with the mother and/or father.” Respondent and the mother subsequently visited with the children at the home of the children's maternal aunt. In February 2010, however, DSS informed Respondent that all further visits must be supervised at the DSS office due to allegations that Respondent had taken indecent liberties with the minor daughter of his current girlfriend. Respondent pled guilty to two counts of misdemeanor sexual battery in December 2010 and was placed on probation.
In May 2011, the trial court held a subsequent permanency planning review hearing, after which the trial court found that it was not in the best interest of the children to return to the home of Respondent within six months because Respondent had not complied with his case plan and he had recently pled guilty to sexual battery. The court further found that the mother had relinquished her parental rights on 4 May 2011. The trial court changed the permanent plan from reunification to custody with a court-approved caretaker or relative, with a concurrent plan of adoption.
On 1 July 2011, DSS filed motions to terminate Respondent's parental rights to the children, alleging that he willfully left the children in foster care for more than twelve months without making significant progress in correcting the conditions which led to their removal under N.C. Gen.Stat. § 7B–1111(a)(2). Respondent went to prison approximately three weeks later for violating his probation and was released from prison on 31 October 2011. Following a November 2011 hearing before the Honorable J. Henry Banks, the trial court terminated Respondent's parental rights based upon the ground alleged. Respondent appeals.
Respondent contends that the trial court erred in concluding that grounds existed to terminate his parental rights pursuant to section 7B–1111(a)(2). We disagree.
This Court reviews an order finding the existence of grounds for termination of parental rights to determine whether the findings of fact are supported by clear, cogent, and convincing evidence, and whether the findings of fact support the court's conclusions of law. In re Shepard, 162 N.C.App. 215, 221–22, 591 S.E.2d 1, 6,disc. review denied sub nom., In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). We are bound by a finding of fact if there is some evidence in the record to support the finding. In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984). Further, findings of fact not challenged on appeal are binding. In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). We review the trial court's conclusions of law de novo. 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).
Under section 7B–1111(a)(2) of the North Carolina General Statutes, a court may terminate parental rights where “[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) (2011). Willfulness under the statute “may be found where even though a parent has made some attempt to regain custody of the child, the parent has failed to show reasonable progress or a positive response to the diligent efforts of DSS.” In re Clark, 159 N.C.App. 75, 84, 582 S.E.2d 657, 662 (2003) (quotation marks omitted). A finding that the parent has failed to make reasonable progress is appropriate where the parent has made some attempt to regain custody of the child but has failed to show reasonable and positive results. In re Nolen, 117 N.C.App. 693, 699–700, 453 S.E.2d 220, 224–25 (1995).
Initially, we note that Respondent appears to contend that it was only the children's mother's substance abuse problem and mental health issues that led to the removal of the children. However, as is clear from the 12 November 2008 adjudication order, the children were adjudicated dependent because the parents, Respondent included, were not able to provide proper care or supervision for the children and lacked appropriate alternative child care arrangements. Respondent was incarcerated at the time of that adjudication hearing, and while the order specifically references the mother's substance abuse issues, the order also refers to both parents as being unable to properly care for the children and as lacking alternative arrangements. Thus, the conditions leading to the children's removal included Respondent's inability to care for or supervise the children.
Further, Respondent contends that the trial court's findings regarding “visitation and [Respondent's] criminal convictions” “may be relevant to other statutory [grounds for termination of parental rights], but are simply superfluous and irrelevant to the issue of whether he made reasonable progress in correcting the conditions that led to the removal of the children.” Assuming Respondent is correct that those findings are irrelevant to the issue of whether Respondent has made reasonable progress, the trial court made the following unchallenged findings to support the conclusion that Respondent made insufficient progress in remedying those conditions that led to the children's removal:
9. Pursuant to [Respondent's] case plan, [he] was to complete the following:
a. participate in, attend and successfully complete a course of parenting classes and demonstrate the skills learned when visiting with the children;
b. obtain and maintain stable and appropriate housing;
c. obtain and maintain stable employment;
d. submit himself to a mental health assessment and follow any and all recommendations of said assessment;
e. submit himself to random drug screens at the request of [ ]DSS.
....
23. During the pendency of this proceeding and the dependency proceeding, [the social worker] has attempted to find [Respondent] ... but has been unable to locate [Respondent]. [Respondent] has not made himself available to [ ]DSS nor has he contacted [ ]DSS.
24. When [Respondent] signed his case plan on May 5, 2009, [he] was instructed where to go to achieve each of the goals in his case plan as well as contact information for all providers. It was up to [Respondent] to schedule all appointments and follow up with all appointments as it would show that [respondent] was serious and willing to reunite with his children.
25. [Respondent] has not had a mental health assessment as provided in his case plan. [Respondent] thinks he had a TASC assessment associate[d] with substance abuse but he does not remember the date or time of that assessment.
26. [Respondent] admitted he had a drug problem while the children have been in the care of [ ] DSS.
27. [Respondent] has not submitted to any random drug screens. [The social worker] was unable to request drug screens from [Respondent] as she did not have any contact information for him and only limited contact with [him] ... when he scheduled visits with the children and on July 27, 2011.
....
31. [Respondent] currently resides at 507[Z] Street, Henderson, North Carolina. He resides with his girlfriend.... The lease is in [his girlfriend's] name. [Respondent] has been living there since he was released from prison.
32. [Respondent] resided at 504[Z] Street, Henderson, North Carolina before moving to 507[Z] Street. Before that, [Respondent] lived at 920[D] Street with his godmother and before that on 504 N. [C] Street with his ex-girlfriend. He did not know dates of when he lived at the various residences. None of the residences were secured by [Respondent].
....
34. [Respondent] completed parenting classes in July 2010. He did not provide [ ]DSS a copy of the certificate of completion. [The social worker] was not aware [Respondent] had completed parenting classes until today's date.
35. [Respondent] completed anger management classes as well in July 2010. [ ] DSS was not aware he had done so.
36. [Respondent] is self-employed as a mechanic and his last job was last week in which he made $150.00. [Respondent] is looking for more other [sic] work through vocational rehabilitation and has been doing so since his release from prison October 31, 2011.
....
39. [Respondent] did complete the domestic violence education program while he was in prison.
....
41. [Respondent] is searching for a place of his own.
In our view, these findings, while noting Respondent's completion of certain classes, show that Respondent did not complete significant portions of his case plan, which included obtaining a mental health assessment, maintaining stable housing, and complying with random drug testing. Further, although Respondent completed parenting classes in July 2010, Respondent did not demonstrate the skills learned when visiting with the children, as required by his case plan, because Respondent “has not seen his children since May 24, 2010.” Although Respondent completed some aspects of the plan, the trial court properly concluded that Respondent willfully failed to make reasonable progress based on Respondent's failure to complete the remaining substantive aspects of his case plan. We therefore conclude that the trial court's findings of fact provide ample support for the trial court's conclusion of law that grounds existed under section 7B–1111(a)(2) for termination of Respondent's parental rights. Accordingly, the trial court's order terminating Respondent's parental rights is
We note that Respondent contends that “the relevant time period” for the determination of whether he had made reasonable progress is the year preceding the filing of the petition for termination. However, as recognized by the case relied upon by Respondent to support that position, section 7B–1111(a)(2) has been amended and evidence showing a lack of reasonable progress “is not limited to that which falls during the twelve month period next preceding the filing of the motion or petition to terminate parental rights.” In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (2005).
AFFIRMED. Chief Judge MARTIN and Judge HUNTER, ROBERT C., concur.
Report per Rule 30(e).