Opinion
No. 06-1538.
Filed 15 May 2007.
Cumberland County Nos. 04 J 184-187.
Appeal by Respondents from order entered 30 August 2006 by Judge Edward A. Pone in Cumberland County District Court. Heard in the Court of Appeals 30 April 2007.
Elizabeth Kennedy-Gurnee for Petitioner-Appellee Cumberland County Department of Social Services. Beth A. Hall for Guardian ad Litem-Appellee. Janet K. Ledbetter for Respondent-Appellant Mother, P.R. Richard E. Jester for Respondent-Appellant Father, W.R. Peter Wood for Respondent-Appellant Father, R.A.
Respondent-Mother P.R. appeals an order terminating her parental rights with respect to her minor children S.S., T.R., D.R., and M.R. Respondent-Father W.R., P.R.'s husband, appeals the order with respect to the termination of his parental rights to three of the children, T.R., D.R., and M.R. Respondent-Father R.A. appeals the termination of his parental rights to S.S. On 19 March 2004, Petitioner Cumberland County Department of Social Services ("DSS") was granted nonsecure custody of the four minor children. At the time that the children were removed from the home, the children were ages fifteen months, two, three, and seven years old, and P.R. was eight months pregnant with a fifth child. On 22 March 2004, DSS filed a juvenile petition alleging that the minor children were dependent. The juvenile petition did not name R.A. because at that time DSS was not aware that R.A. was the putative father of S.S. The petition alleged that the family's home had been without lights and heat for the past twelve months and that the family was facing imminent eviction. The petition further alleged that P.R. and W.R. had a history of unemployment, unstable housing, and an inability to meet their family obligations.
In addition to the recent DSS referrals which led to the filing of the juvenile petition, DSS alleged that P.R. and W.R. had a history of neglect referrals dating back to 7 November 1997. The referral on 7 November 1997, which was substantiated by DSS, involved a report that P.R. and W.R. had no lights, heat, water, or furniture, and that P.R. and W.R. were both unemployed.
Following review hearings on 24 and 29 March and 26 April 2004, the trial court continued nonsecure custody with DSS. In each of the corresponding orders for these hearings, the trial court gave DSS the authority to place the children with relatives "to include the respondent parents at such time as they have appropriate housing." Following a hearing on 24 May 2004, the trial court adjudicated the children dependent based on the stipulation of P.R. and W.R. that they lacked adequate housing. The trial court ordered P.R. and W.R. to cooperate with DSS, open their home to DSS, provide verification of W.R.'s employment, and provide an itemized budget.
In the interim period between the entry of the adjudication order and the disposition hearing, P.R. and W.R. participated in supervised visits with the children. However, on 7 June 2004, DSS filed a motion for review requesting that visitation be suspended due to the parents' disruptive behavior. Specifically, DSS alleged, inter alia, that P.R. and W.R. were loud and confrontational with the social workers, used profanity in the presence of the children, that W.R. stated in the presence of the children "he would have slapped the social work supervisor[,]" spoke negatively of the foster parents to the children, and exercised minimal control of the children.
Following a hearing on DSS's motion on 10 June 2004, the trial court found that P.R. and W.R. had engaged in "loud, profane and disruptive activities in the presence of the minor children" and that this behavior had "caused members of DSS staff to fear for their own safety as well as the minor children's safety." Nevertheless, the trial court permitted the parents' weekly visitation to continue on the condition that they refrain from the objectionable behavior and make no attempt in the presence of the children to discuss the case, the foster parents, or "if/when the minor children will be returning home."
On 2 August 2004, the trial court conducted the disposition hearing. While P.R. and W.R. provided the trial court with an itemized budget, they failed to provide sufficient documentation from which the trial court could verify employment or housing. In addition, a DSS social worker testified that P.R. and W.R. had refused to sign the family services case plan, had refused to accept any assistance from DSS, and had completed no other activities in the case plan except supervised visitation with the children. Consequently, the trial court found that they were not in compliance with the trial court's orders and ordered them to provide DSS access to their housing, if any, so that DSS could complete a home study, to sign releases to permit DSS to verify employment and housing, and to comply with the family services case plan and cooperate with DSS.
On 25 August 2004, a Permanency Plan Action Team meeting was held to discuss the permanency plan for the children, but P.R. and W.R. did not attend. While P.R. and W.R. had signed a release for DSS to speak to the alleged employer of W.R., the phone number provided to DSS had been disconnected and no other number was listed for W.R.'s alleged employer.
Following a review hearing conducted on 28 September 2004, the trial court found that W.R. had still not provided the trial court with verification of employment, that P.R. and W.R. had not secured suitable and stable housing, and that this failure to alleviate the conditions which led to the removal of the children was "inexcusable and unexplainable." The trial court further found that DSS had made reasonable efforts toward reunification "by notifying the respondent parents of various job fairs, meetings, employment opportunities and attempts to develop a Case Plan[.]" As a result, the trial court relieved DSS of its obligation to make efforts toward reunification and visitation.
After conducting another review hearing on 28 October 2004, the trial court found that W.R. had again failed to provide verification of his employment. The trial court further found that DSS had "made numerous attempts to assist the respondent parents with correcting instability issues of the family" including offering "assistance from the Family Resource Aide with transportation to locate housing, employment and doctor appointments[,]" and with "budgeting." However, "[t]he respondent parents informed the social worker and family resource aide they did not need help." While the trial court found that adoption should be pursued, it again ordered P.R. and W.R. to "continue with their efforts to obtain safe and suitable housing for the minors" and that they would be allowed visitation with the children during the holidays.
In addition, the trial court found that DSS had received a phone call from Respondent-Father R.A. asserting that he was the father of S.S. and that DSS was attempting to arrange paternity testing. According to R.A.'s later testimony at the termination hearing, S.S. was born while P.R. was in jail. Following the birth, R.A. picked up S.S. from the hospital and had custody for seven months until R.A. was convicted of armed bank robbery and incarcerated. R.A. had S.S. with him during the bank robbery. Following R.A.'s incarceration, S.S. lived with R.A.'s mother until P.R. was released from her own incarceration and reclaimed custody of S.S. Paternity test results finalized during the termination hearings indicated a 99.99% probability that R.A. is the father of S.S. R.A.'s estimated prison release date is in 2022.
On 23 November 2004, P.R. was ordered to pay $57.00 per month in child support. W.R. was ordered to pay $558.00 per month. As of the date that the termination petition was filed, P.R. had paid only $52.64 in child support. W.R. had paid nothing.
DSS filed the termination petition on 15 July 2005, seeking to terminate the parental rights of P.R., W.R., and R.A. The trial court conducted a series of hearings over several sessions between 1 March 2006 and 30 August 2006. On 26 April 2006, the trial court entered an order continuing the hearings because paternity testing for the putative father R.A. was not complete. In July 2006, the trial court entered an order continuing the hearings due to DSS counsel's family emergency. On 30 August 2006, the trial court entered an order terminating the parental rights of P.R., W.R., and R.A. which they each now appeal. We address each Respondent parent's assignments of error in turn.
I. RESPONDENT-MOTHER P.R.
By her first assignment of error, P.R. asserts that the termination order must be reversed because the trial court did not hold a termination hearing within ninety days of the filing of the termination petition as required by N.C. Gen. Stat. § 7B-1109(a). Although the series of termination hearings began on 1 March 2006, more than seven months after the filing of the termination petition, this Court has held that "time limitations in the Juvenile Code are not jurisdictional . . . and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." In re C.L.C., 171 N.C. App. 438, 443, 615 S.E.2d 704, 707 (2005) (citations omitted), aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760 (2006).
In her brief, P.R. has made only vague assertions of "unmistakabl[e] prejudice?" that left her and the children in "legal limbo." Such imprecise assertions are insufficient. See In re H.T., ___ N.C. App. ___, ___, 637 S.E.2d 923, 928 (2006) (respondent's "general statements of prejudice per se with respect to the timing delays" were insufficient to warrant reversal of a termination order). Nevertheless, we do not find that the delay could have resulted in significant prejudice given that, at the time the petition was filed, the children already had been in foster care placement for approximately fourteen months. The length of this placement was due, in significant part, to P.R.'s continual refusal to comply with both the case plan and the trial court's requirements for reunification. Because we conclude that P.R. has failed to demonstrate that the delay in the termination hearing resulted in prejudice, this assignment of error is overruled. P.R. next challenges the statutory grounds upon which the trial court relied in terminating her parental rights. Before turning to P.R.'s substantive challenges to the grounds relied upon by the trial court, however, we must address P.R.'s contention that two of the three grounds were not grounds initially alleged by DSS in the termination petition. In particular, she asserts that, as to her, the petition alleged only the ground of willful abandonment as specified by N.C. Gen. Stat. § 7B-1111(a)(7). As such, she contends that the trial court was not permitted to rely upon the alternative grounds of failure to pay a reasonable portion of the cost of care for the children, N.C. Gen. Stat. § 7B-1111(a)(3), and willfully leaving the children in foster care for more than twelve months, N.C. Gen. Stat. § 7B-1111(a)(2).
As a threshold matter, we conclude that P.R. has failed to properly preserve this claim for appellate review. First, DSS specifically made a motion at the termination hearing to conform the petition to the evidence. This motion was allowed by the trial court without objection by P.R.'s counsel. A party must make a timely request, objection, or motion to a trial court's ruling in order to preserve the issue for appellate review. N.C. R. App. P. 10(b)(1).
Furthermore, P.R. did not include this claim in her assignments of error as required by our Rules of Appellate Procedure. N.C. R. App. P. 10(c)(1). While P.R. does assign as error "[a]ny assignments of error made by Co-Respondent-Appellant Fathers[,]" and while W.R. did assign error to this specific issue, such a vague, blanket attempt to incorporate the claims of Co-Appellants is inadequate to preserve error for review. See N.C. R. App. P. 10(c)(1) (requiring that a proper assignment of error "directs the attention of the appellate court to the particular error about which the question is made[.]"); see also May v. Down East Homes of Beulaville, Inc., 175 N.C. App. 416, 623 S.E.2d 345, (holding that broad, vague, and unspecific assignments of error do not satisfy the requirements of the North Carolina Rules of Appellate Procedure), cert. denied, 360 N.C. 482, 632 S.E.2d 176 (2006). Consequently, we hold that P.R. has waived appellate review of this issue.
We next turn to P.R.'s contention that the trial court's termination of her parental rights on the basis of N.C. Gen. Stat. § 7B-1111(a)(2) was erroneous. Our standard of review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the trial court's conclusions of law. In re Huff, 140 N.C. App. 288, 536 S.E.2d 838 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001); N.C. Gen. Stat. § 7B-1109(e)-(f) (2005).
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), a trial court may terminate parental rights if the court finds:
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.
N.C. Gen. Stat. § 7B-1111(a)(2) (2005). A willful respondent is one who "had the ability to show reasonable progress, but was unwilling to make the effort." In re Fletcher, 148 N.C. App. 228, 235, 558 S.E.2d 498, 502 (2002) (citation omitted). "A finding of willfulness does not require a showing of fault by the parent." Fletcher, 148 N.C. App. at 235, 558 S.E.2d at 502 (citation omitted).
The trial court made the following findings of fact:
3. That the juveniles have been in the continual care of the Cumberland County [D]epartment of Social Services since on or before March 19, 2004 as a result of a non secure custody order and a petition alleging dependency.
. . . .!
9. That the juveniles have been in the continual care of the Cumberland County Department of Social Services for more than 15 months next preceding the filing of this petition. The cost of care for the juveniles is in excess of $35,000.00.
10. That [P.R. and W.R.] stipulated that the juveniles were dependent on or about May 24, 2004 in part due to their lack of stable and suitable housing, lack of lights and heat and lack of an appropriate alternative child care plan.
11. That efforts were made to reunite [P.R. and W.R.] with the minor children; however, these efforts were unsuccessful. The [parents] have a history of moving from place to place and being forced to move out due to failure to pay their rent and having their utilities turned off. This life style persisted up and until the filing of the petition to terminate parental rights and continues to this date.
12. The court ceased reunification efforts after a series of problems during visitations wherein the respondents were using loud and profane language, talking to juveniles about the case in violation of the court's order and refusing to follow the family services case plan as well as the orders of the court to alleviate the conditions which led to the removal of the juveniles. Additionally, they continued to move from place to place and lived a very unstable life style.
13. That the respondents . . . did not pay anything towards the care of the children during the year 2004. That both [P.R. and W.R.] were gainfully employed and had the ability to contribute to the care of the juveniles.
14. That on 11/23/04 [P.R.] was court ordered to pay $57.00 per month for the children beginning 12/1/04. On that same date, 11/23/04, [W.R.] was ordered to pay $558.00 per month for his three children effective 12/1/04. That as of July 15, 2005, the date of the filing of [the termination] petition, [P.R.] had paid [two payments of $26.32 in March and April 2004]. That [W.R.] refused to pay child support although he held various jobs since the entry of the order and has the ability to pay. He is currently in arrears in excess of $7800.00.
15. [W.R.] has been very uncooperative with the department throughout the entire involvement with his children. He has refused to accept the services offered in an effort to reunite the family, has failed to comply with the courts [sic] orders and this has resulted in this matter being here today.
16. [P.R.] has largely followed the direction of her husband. She even entertained the idea of relinquishing her parental rights after the child support order was entered. She has also been less than honest with the court, [W.R., and R.A.] when it came to the identity of the father of [S.S.].
17. That even after relieving [DSS] of reunification efforts, the court continued to allow renewed visitation efforts, commencing during the holidays, Thanksgiving and Christmas, and [P.R. and W.R.] did not attend the visitation. Moreover, they did not so much as purchase the children Christmas presents.
P.R. does not dispute the fact that the children were in foster care for more than twelve months prior to the filing of the termination petition. Nor does she challenge the trial court's finding that the children were initially removed from the home due to "lack of stable and suitable housing, lack of lights and heat and lack of an appropriate alternative child care plan." Rather, P.R. asserts that the trial court failed to make findings that she was willful in her actions. We disagree.
The evidence shows, and the trial court specifically found, that P.R., along with W.R., had "refus[ed] to follow the family services case plan as well as the orders of the court to alleviate the conditions which led to the removal of the juveniles." The trial court further found that P.R. "largely followed the direction of [W.R.]" in "refus[ing] to accept the services offered in an effort to reunite the family[.]"
After reviewing the record, we conclude that the trial court's findings are supported by clear, cogent, and convincing evidence. DSS made several attempts to assist P.R. and W.R. in locating suitable housing and employment. In addition to sending P.R. and W.R. information about specific job openings on several occasions, a DSS social worker visited the home on two occasions to offer them transportation to find suitable housing and employment. During one visit, the social worker explained that she had been in touch with the City of Fayetteville Community Development regarding finding housing for a family of seven. Despite the availability of these services, the trial court found that P.R. and W.R. "continued to move from place to place and lived a very unstable life style" which "continues to [the date of the termination order]."
We 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[.]" In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93 (2004) (internal quotations and citations omitted). In this case, we conclude not only that P.R. and W.R. lacked good intentions, but moreover that they directly refused to take even minimal steps to create a suitable and stable environment for their children. Such refusal, combined with P.R.'s and W.R.'s failure to make any progress over a fifteen-month period, is sufficient to support the trial court's conclusion that P.R.'s and W.R.'s actions were willful. P.R.'s argument is overruled.
Because we affirm the trial court's termination on the statutory ground of willful failure to progress, we need not address P.R.'s remaining challenges to the other statutory grounds relied upon by the trial court in terminating P.R.'s parental rights. See B.S.D.S., 163 N.C. App. at 546, 594 S.E.2d at 93 ("Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground[s] . . . found by the trial court.") (citation omitted).
II. RESPONDENT-FATHER W.R.
We next turn to Respondent-Father W.R.'s assignments of error. W.R. challenges each of the three statutory grounds relied upon by the trial court to terminate the parental rights of both P.R. and W.R. As discussed above, the trial court's findings of fact and conclusions of law with respect to P.R. also pertain to W.R. Consequently, our conclusion above that the termination on the ground of willful failure to progress was properly supported with respect to P.R. also applies to the termination of W.R.'s parental rights, and W.R.'s argument on this issue is overruled.
Nevertheless, we briefly address W.R.'s additional contention that the trial court's termination of his parental rights on this ground was erroneous because there was insufficient evidence that the government provided "meaningful assistance to the family" and because he was given insufficient guidance as to the requirements for reunification with his children. We find W.R.'s contentions to be wholly without merit.
First, W.R.'s contention that he was not informed as to the requirements for reunification is belied by the record. The primary reason for the removal of the children in this case was due to a failure of W.R. and P.R. to provide suitable housing for the children. Both the unambiguous allegations in the juvenile petition that the family had been without electricity and heat for a full year as well as W.R.'s own stipulation at the adjudication phase as to lack of adequate housing make it clear that W.R. was aware of the basis for the children's removal and the requirements for their return. Further, in each of the three review hearing orders, the trial court specifically granted DSS the authority to place the children back with W.R. and P.R. "at such time as they have appropriate housing." In light of such plain language, W.R. cannot now reasonably assert that he was uninformed about the conditions for the return of his children.
As for W.R.'s assertion that DSS failed to provide him with assistance, we have discussed in detail above the assistance offered to and refused by W.R. Accordingly, we affirm the trial court's conclusion that W.R. willfully failed to make any progress over a fifteen-month period to correct those conditions that led to the removal of his children. Again, as only one statutory ground is required to support the termination of parental rights, we need not address W.R.'s assignments of error relating to the other statutory grounds relied upon by the trial court. See B.S.D.S., supra.
III. RESPONDENT-FATHER R.A.
Finally, we address Respondent-Father R.A.'s assignments of error as to the termination of his parental rights to S.S. In his first assignment of error, R.A. asserts that he was denied his right to counsel because of his counsel's absence during a portion of the closing arguments at the termination hearing. Specifically, R.A. cites the North Carolina Supreme Court's holding in State v. Colbert, 311 N.C. 283, 316 S.E.2d 79 (1984), and argues that he was denied counsel at a "critical stage" of the hearing in violation of his Sixth Amendment right to counsel. However, this right does not apply to a termination action. State v. Adams, 345 N.C. 745, 748, 483 S.E.2d 156, 157 (1997) ("The filing of a [juvenile petition] commences a civil proceeding. By its terms, the Sixth Amendment applies only to criminal cases.").
Nevertheless, parents do have a "right to counsel in all proceedings dedicated to the termination of parental rights[,]" and this includes a right to effective assistance of counsel. In re L.C., ___ N.C. App. ___, ___, 638 S.E.2d 638, 641 (2007) (quoting In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996)); see also N.C. Gen. Stat. § 7B-602(a) (2005) ("In cases where the juvenile petition alleges that a juvenile is abused, neglected, or dependent, the parent has the right to counsel . . . unless that person waives the right."). To support a claim of ineffective assistance of counsel, R.A. must not only show that his counsel's performance was deficient, but also that "the deficiency was so serious as to deprive the represented party of a fair hearing." Oghenekevebe, 123 N.C. App. at 436, 473 S.E.2d at 396 (citation omitted).
A review of the termination hearing transcript reveals that R.A.'s attorney was present for the presentation of all direct testimony and evidence, but left at some point after delivering his closing argument in order to attend a proceeding in another courtroom. The only portion of the remaining proceedings missed by counsel that pertained to R.A. was DSS's closing argument. Although R.A. now has a complete transcript of the hearing available for his review, he has failed to identify any way in which his counsel's absence prejudiced him. In fact, as noted by the trial court, R.A.'s counsel would not have been entitled to a rebuttal argument following DSS's closing argument. Because R.A. has not demonstrated that he suffered any prejudice, he has failed to establish his claim of ineffective assistance of counsel. Accordingly, this assignment of error is overruled.
R.A. next challenges the several statutory grounds upon which the trial court relied in support of the termination of his parental rights. We turn first to R.A.'s challenge to the trial court's termination on the ground that he failed to legitimate S.S. as specified by N.C. Gen. Stat. § 7B-1111(a)(5). This provision permits a trial court to terminate the parental rights of a putative father where he has failed to legitimate the child by one of the following methods:
a. Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or
b. Legitimated the juvenile pursuant to provisions of G.S. 49-10 or filed a petition for this specific purpose; or
c. Legitimated the juvenile by marriage to the mother of the juvenile; or
d. Provided substantial financial support or consistent care with respect to the juvenile and mother.
N.C. Gen. Stat. § 7B-1111(a)(5) (2005). While R.A. contends that the evidence and the trial court's findings do not support the conclusion that R.A. failed to legitimate S.S. as specified by the statute, R.A. has failed to direct this Court to the evidence which supports this assertion. R.A. neither contends, nor do we find evidence in the record to support any such contention, that he ever married P.R., filed a petition to legitimate S.S. pursuant to N.C. Gen. Stat. § 49-10, or provided substantial financial support or consistent care to either S.S. or P.R. Rather, R.A.'s sole argument is that he filed an affidavit alleging paternity as required by § 7B-1111(a)(5)(a).
By the express language of the statute, R.A. was required to have filed an affidavit of paternity "prior to the filing of a petition or motion to terminate parental rights[.]" Id. Here, R.A. directs this Court to a purported affidavit in the record with a date of 23 January 2006, approximately six months after the petition to terminate was filed on 15 July 2005. This purported affidavit is neither notarized, nor was it "filed in a central registry maintained by the Department of Health and Human Services[.]" In fact, the trial court made a specific finding that the Department of Health and Human Services ("HHS") had "no affidavit of paternity on file and [HHS's] certified response is hereby incorporated into the case record." Consequently, we conclude that the evidence and the findings of fact are sufficient to support the trial court's conclusion that R.A. failed to legitimate S.S. as required by N.C. Gen. Stat. § 7B-1111(a)(5), and this assignment of error is overruled. Having so concluded, we do not address R.A.'s remaining challenges to the other statutory grounds relied upon by the trial court in terminating his parental rights. See B.S.D.S., supra.
In his final assignment of error, R.A. asserts that the trial court abused its discretion in concluding that it was in the best interests of S.S. to terminate his parental rights. Once statutory grounds for termination have been established, the trial court is required to "further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated." N.C. Gen. Stat. § 7B-1110(a) (2005), amended by S.L. 2005-398, § 17, eff. Oct. 1, 2005. The standard for appellate review of a trial court's decision to terminate parental rights is abuse of discretion. In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).
Here, the trial court found that R.A. had not seen S.S. since 2001 when the child was seven months old because R.A. was serving a federal prison term with a projected release date of 2022, at which time S.S. will be approximately twenty-two years old. In further support of the trial court's decision to terminate R.A.'s parental rights, the trial court found:
1. The children are currently doing very well in their placements[.]
. . . .
3. The minor child [S.S.] has no knowledge of who [R.A.] is[.]
Based on our review of the record and the trial court's order in this case, we discern no abuse of discretion in the trial court's decision to terminate R.A.'s parental rights to S.S., and this assignment of error is overruled.
Affirmed.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).