Opinion
No. COA12–1162.
2013-05-7
In the Matter of V.C.B., J.V.W.
Gillam and Gillam Attorneys, P.A., by M. Braxton Gillam III, for Bertie County Department of Social Services, petitioner-appellee. Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
Appeal by mother and father from orders entered 3 July 2012 by Judge Thomas L. Jones, Jr., in Bertie County District Court. Heard in the Court of Appeals 16 April 2013. Gillam and Gillam Attorneys, P.A., by M. Braxton Gillam III, for Bertie County Department of Social Services, petitioner-appellee. Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred for mother, respondent-appellant.
Assistant Appellate Defender J. Lee Gilliam for father, respondent-appellant.
STEELMAN, Judge.
Where the trial court's findings of fact support its conclusions of law that both mother and father willfully failed to make reasonable progress to correct the conditions that led to the removal of both V.C.B. and J.V.W, the trial court properly terminated their parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2).
I. Factual and Procedural Background
On 20 November 2007, the Bertie County Department of Social Services (DSS) assumed non-secure custody of ten-month-old V.C.B. and filed a juvenile petition alleging dependency and neglect. Mother admitted to using marijuana during the pregnancy and overdosing on benzodiazepine the week before the delivery. Because mother was unable to care for V.C.B., he began living with his grandmother on 8 February 2007. V.C.B.'s father was unknown. The district court entered an adjudication of dependency and neglect on 16 January 2008 and ordered mother to attend substance abuse counseling, obtain a mental health assessment, participate in therapy, and submit to random drug screens. A subsequent order required mother to attend parenting classes.
Mother became pregnant with her second child, J.V.W., who was placed in DSS custody shortly after his birth. J.V.W. was adjudicated neglected on 12 January 2009. The adjudication order noted that mother tested positive for cocaine use during the pregnancy and immediately after the delivery; exhibited “unusually poor bonding and unease with [J.V.W.];” failed to obtain anger management or substance abuse counseling or to pursue the caregiver training recommended by her therapist; was prone to severe mood swings and “extreme outbursts of anger causing her to lose track of time, physically attack others, break and throw things, and yell and scream when negatively provoked and upset[;]” and had never been employed. She had lived with father since February of 2008 and was “dependent upon [him] for housing and financial assistance.” The court found that father “has not been willing to provide proper care and supervision of [J.V.W.] because he has been unwilling to devote himself solely to the care of the infant juvenile or to provide a suitable child care arrangement that does not include unsupervised care by mother.” The court ordered father to attend parenting classes and ordered DSS to conduct a home study of his residence.
On 22 April 2009, the district court changed V.C.B.'s primary permanent plan to adoption based on mother's lack of progress and the length of time he had been in foster care. The court scheduled a permanency planning hearing for J.V.W., noting that father had been incarcerated. It ordered father to complete parenting classes, submit to random drug screens, and to stay out of jail.
DSS filed a motion for termination of parental rights as to V.C.B. on 29 May 2009. On 16 October 2009, the district court held the motion in abeyance due to mother's efforts toward reunification. While noting her negative drug screens, completion of parenting classes, and participation in therapy, the court found that mother needed “to demonstrate sustained progress over time, especially with the introduction of new stressors in her life after the [impending] birth of her new child.” The court authorized mother to have unsupervised visitation with V.C.B. In a permanency planning order for J.V.W. entered the same day, the court found that father had completed parenting classes and submitted negative drug screens, but had been incarcerated on two occasions. A home study revealed that father's residence was “adequately furnished[,]” and his retirement income “comfortably exceed[ed] monthly expenses of the home.” The court expressed concern about mother and father's ongoing failure to visit the children on alternating weeks when DSS did not provide transportation. The court found “that it is important for [mother and father] to show initiative in obtaining transportation[.]”
Mother became pregnant with her third child, her second child with father, in 2009. We note that this child, L.W., is not the subject of these proceedings.
In orders entered 10 March 2010, the district court found that father had tested positive for cocaine. Due to mother's recent efforts toward reunification, the court changed V.C.B's permanent plan back to reunification and ordered DSS to work towards unsupervised overnight visitation with both children, contingent upon negative drug screens from the parents.
Throughout 2010, mother and father continued to visit the children when DSS provided transportation, but failed to attend the additional semi-weekly visitation allowed by the court. In May of 2010, DSS learned of a report of domestic violence in mother and father's home. DSS suspended unsupervised visitations due to this incident. Mother and father attended one domestic violence counseling session together on 22 July 2010, but failed to follow through with counseling recommended by the therapist “to address anger management and other underlying issues[.]” In orders entered 1 September 2010, the court expressed concern about the couple engaging in violent altercations in L.W.'s presence. The court ordered mother and father to attend counseling, remain drug-free, provide their own semi-weekly transportation for visitation, and attend every scheduled visit unless excused by a doctor.
On 1 December 2010, the trial court established a permanent plan of adoption for both children and ordered DSS to pursue termination of parental rights. Although father was attending domestic violence counseling, mother had not attended therapy sessions since September. Both parents had negative drug screens, but they had again failed to attend visitation “in a consistent and sustained pattern” when required to arrange their own transportation. The court found that the relationship between the couple had grown “severely strained [.]” Having unsuccessfully sought her own housing and lacking income, mother remained dependent on father. Father claimed that mother “provided very little child care for [L.W., who] lives in their home and that he was considering pursuit of sole custody of [J.V.W.].”
DSS filed a motion to terminate mother and father's parental rights as to J.V.W. on 19 January 2011. The trial court entered permanency planning orders for both children on 9 May 2011, finding “no qualitative change” since the 12 November 2010 order. Mother and father had not visited V.C.B. or J.V.W. on their own initiative since visiting V.C.B. on 21 December 2010 and J.V.W. on 3 January 2011. At none of the visits did mother and father stay with the child longer than one hour of the two hours allotted for visitation. Neither parent provided Christmas cards or gifts to the children, although they gave V.C.B. a birthday present on 5 January 2011. Mother had not attended therapy since 10 February 2011, and father had not attended domestic violence counseling since 2 March 2011. Father asked mother to vacate his residence on 15 February 2011, but they reconciled in mid-March. Mother had again assaulted father in L.W.'s presence after finding another woman in the home.
The district court entered additional permanency planning orders on 28 November 2011. Mother did not attend the hearing, and father stated that she did not live with him. Mother had informed DSS that she was moving to Georgia and was no longer visiting the children after 13 May 2011, but later reported that she was moving to a new address in Williamston, North Carolina. Mother had not submitted a drug screen since February of 2011, and had failed to attend a visitation and drug screen scheduled for 16 September 2011. Mother had not visited the children since 2 September 2011, and had not attended therapy sessions since 11 July 2011. Father tested positive for cocaine use on 4 October 2011, and had been discharged from domestic violence counseling for non-attendance.
The district court held another permanency planning hearing on 9 March 2012, which neither parent attended. In orders entered 2 April 2012, the court found that both mother and father had submitted drug screens on 11 January 2012. Mother's screen was negative, while father tested positive for cocaine. Mother had pending charges of financial card theft and financial card fraud in Martin County, which involved father's credit card. She submitted an affidavit in the criminal case on 26 October 2011, stating that she was homeless. Mother and father had attended only a single visitation when not provided with transportation, a 55–minute visit with V.C.B. on 6 December 2011.
The district court held a hearing on the motion to terminate parental rights on 7 and 22 May 2012, and took judicial notice of its prior orders. Mother and father attended the proceeding but did not testify or offer evidence. On 3 July 2012, the court entered orders terminating both mother and father's parental rights. The grounds for termination as to V.C.B were that mother had (1) neglected V.C.B., and (2) willfully left V.C.B. in foster care for at least twelve months prior to DSS's filing of the motion to terminate parental rights without making reasonable progress to correct the conditions that led to his placement. N.C. Gen.Stat. §§ 7B–1111 (a)(1)-(2) (2011). The court found the same grounds for termination of the parental rights of both mother and father as to J .V.W.
Mother and father appeal.
II. Mother's appeal
In her first argument, mother contends that the district court erred in terminating her parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2). We disagree.
A. Standard of Review
“The standard for 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 Clark, 72 N.C.App. 118, 124, 323 S .E.2d 754, 758 (1984). Uncontested findings “are deemed to be supported by sufficient evidence and are binding on appeal.” In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009). We review the district 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).
B. Willful Failure to Make Reasonable Progress
In order to establish grounds for termination under N.C. Gen.Stat. § 7B–1111(a)(2), the movant must demonstrate that the parent (1) willfully left the child in placement outside the home for more than twelve months, and (2) as of the time of the termination hearing, failed to make reasonable progress under the circumstances to correct the conditions that led to the child's removal. In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396 (2005). “Willfulness” under subpart (a)(2) “does not require a showing of fault by the parent.” In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 398 (1996). We have long 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,’ and will support a finding of lack of progress ... sufficient to warrant termination of parental rights under section 7B–1111(a)(2).” In re J.W., 173 N.C.App. 450, 465–66, 619 S.E.2d 534, 545 (2005) (quoting In re B.S.D.S., 163 N.C.App. 540, 546, 594 S.E.2d 89, 93 (2004)), aff'd per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006).
Mother contests the court's findings of fact that “[t]he conditions of neglect at the time of [J.V.W.'s and V.C.B's] had “fully corrected” those conditions at the time of the termination of parental rights hearing. Mother points to the fact that DSS left L.W. in her care since his birth in September 2009. She further argues that she completed parenting classes, resided “with a man who had considerable income[,]” and had not tested positive for drugs since May 2009. Mother acknowledges that V.C.B. and J.V.W. have been in their respective foster homes since August 2007, and September 2008, well beyond the twelve-month period required in § 7B–1111(a)(2).
In support of its conclusion to terminate mother's parental rights pursuant to § 7B–1111(a)(2), the trial court made detailed evidentiary findings of fact consistent with its prior orders, as well as the following ultimate findings of fact:
... [M]other has willfully left the juvenile[s] in foster care for more than 12 months without showing reasonable progress in correcting the conditions which led to removal. Her failure to attend therapy, failure to initiate visits with the juvenile[s] every other week as ordered by the Court, her prolonged unstable home environment, and her failure to submit to drug screens between February 8, 2011, and January 11, 2012, demonstrate a settled intent to forgo her parental duties and to relinquish her parental claims to the child[ren]. Although she has made some efforts by attending parenting classes and by visiting the juvenile[s] every other week when [DSS] transports the child to the Department for a visit, she has otherwise failed to take the steps to improve her situation after 54 months [for V.C.B. and 41 months for J.V.W.] of the juvenile[s] remaining in the custody of [DSS].
To the extent that these findings of fact are not conclusions of law, we note that mother has not challenged any portion of this finding of fact found by the court, and it is therefore binding on appeal. In re M.D., 200 N.C.App. at 43, 682 S.E.2d at 785. At the time of the original adjudications of dependency and neglect, mother was ordered to address her mental health and substance abuse issues, to improve her caregiving ability, and to work on bonding with the children through visitation. Mother made initial progress, going to therapy, completing parenting classes, and submitting negative drug screens. However, she ceased regular attendance at mental health therapy and substance abuse counseling in 2009, and did not attend any therapy sessions after 11 July 2011. She also failed to attend domestic violence counseling following her violent exchange with father in May 2010. Despite persistent directives by the trial court, mother failed to consistently attend visitation with the children when DSS did not provide transportation. The court further found that she did not contact the foster parents or DSS to inquire about the children and failed to “leave pictures or other mementos [with the children] to help keep ... mother alive in the child[ren]'s mind[s] between visits.” Nor did mother make any progress toward functional independence by obtaining employment or a driver's license. Mother concedes that she simply “refused [drug] testing in 2011[.]”
Because the court's findings of fact and conclusions are the same for V.C.B. and J.V.W., and mother makes a single argument embracing both cases, we consider the two orders together.
Insofar as mother relies on her cohabitation with father as proof of reasonable progress, we note the trial court's uncontested findings that the couple's relationship “has been unstable and uncertain since ... February 12, 2010[;]” that mother was in and out of the residence in 2011 and told DSS that she intended to leave; that she declared herself homeless in an affidavit filed on 26 October 2011; that she and father engaged in acts of domestic violence in the presence of L.W.; and that father had failed to complete domestic violence classes and had tested positive for cocaine use in two recent drug screens. At the termination of parental rights hearing, there was no evidence offered of domestic stability in the home.
Finally, we are not persuaded by mother's argument that L.W.'s presence in father's home precludes an adjudication under § 7B–1111(a)(2) that she willfully failed to make reasonable progress. DSS supervisor Gloria Braddy testified that “[w]e had concerns about the entire situation,” and she explained that “we do not supervise child protective services in Martin County [.]” We note the finding that father had complained of mother's “lack of child care assistance with [L.W.],” as well as the absence of any evidence regarding mother's involvement with L.W., save for the acts of domestic violence in his presence. We hold that the trial court's findings of fact support the conclusion of law that mother willfully failed to make reasonable progress to eliminate the conditions that led to the juveniles' foster placements.
This argument is without merit.
C. Neglect
In mother's second argument, she contends that the trial court erred in terminating her parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1). Because a single ground for termination under N.C. Gen.Stat. § 7B–1111(a) is sufficient to support an order terminating parental rights, we need not address her remaining argument. In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
III. Father's Appeal
In father's first argument, he contends the trial court erred in terminating his parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2). We disagree.
Father argues that irrespective of his “shortcomings,” “[t]he elephant in the room in this case” is his successful rearing of J.V .W.'s sibling, L.W., since September 2009 in father's home. Father avers that his “sole offense” at the time of the initial adjudication of neglect as to J.V.W. was his failure to “devote himself solely to care of [J.V.W.] or to provide a suitable child care arrangement that does not include unsupervised care by ... mother.” Father contends that by completing parenting classes, he fulfilled the only obligation imposed by the court's disposition. Father argues that since he lived an hour away from J.V.W's foster parent and did not have a driver's license, he should not be held accountable for failure to visit J.V.W. where transportation was not provided by DSS. He contends that neither domestic violence nor his own drug use was a condition that led to J.V.W's placement in foster care.
The trial court made evidentiary findings of fact consistent with those contained in its prior orders and made the following ultimate findings of fact:
... [F]ather has willfully left the juvenile in foster care for more than 12 months without showing reasonable progress in correcting the conditions which led to removal. He continues to live in an unstable and strained relationship with ... mother, and he has failed to provide the Court or [DSS] a plan of care for the child that does not include unsupervised care by ... mother. He has failed to complete domestic [violence] counseling as ordered by this Court despite his admission of domestic violence issues with ... mother, and he has tested positive for cocaine at his last two drug screenings despite the Court's efforts to address issues of substance abuse involving ... mother's care for the juvenile. Although he has made some efforts by attending parenting classes and by visiting the juvenile every other week when [DSS] transports the child to the Department for a visit, he has failed to demonstrate initiative on his part by visiting the child during the intervening weeks as ordered by the Court. In addition, the unstable home environment and his failure to develop a satisfactory child care plan demonstrate a failure to take the [necessary] steps to improve his situation after 41 months of foster care....
Because father does not contest any of the court's findings of fact, they are binding on appeal. In re M.D., 200 N.C.App. at 43, 682 S.E.2d at 785.
We agree with the trial court's conclusion that grounds for termination of father's parental rights exist under § 7B–1111(a)(2). During J.V.W.'s forty-one months in foster care, father completed parenting classes, but failed to propose any plan of care for J.V.W. as ordered by the trial court. Moreover, the court properly considered father's subsequent acts in violation of the permanency planning orders as bearing upon his lack of reasonable progress. Cf. In re Leftwich, 135 N.C.App. 67, 72, 518 S.E.2d 799, 803 (1999) (citing the mother's noncompliance with her case plan and the recommendations of her caseworker to show a lack of “meaningful progress in eliminating the conditions that led to the removal of her children”). Father's refusal to show initiative in visiting J.V.W., his continuing cocaine use, and his failure to complete domestic violence counseling were all relevant to the trial court's inquiry under § 7B–1111(a)(2), showing a continuing need for an acceptable plan of care for J.V.W. We hold the findings of fact support the trial court's conclusion of law that father's parental rights should be terminated under § 7B–1111(a)(2).
This argument is without merit.
Having upheld the ruling of the trial court under § 7B–1111(a)(2), we need not review the second ground for the termination of father's parental rights as found by the district court.
IV. Conclusion
Mother and father do not challenge the trial court's determination that it is in the best interests of V.C.B and J.V.W. to terminate the parental rights of mother and father and move forward with adoption. We note that “[t]he North Carolina Juvenile Code stresses the paramount importance of the child's best interest and the need to place children in safe, permanent homes within a reasonable time.” In re T.H.T., 362 N.C. 446, 448–49, 665 S.E.2d 54, 56 (2008) (quotations omitted). Both mother and father were afforded ample opportunity to meet the conditions imposed for reunification. See In re Nolen, 117 N.C.App. 693, 699–700, 453 S.E.2d 220, 224–25 (1995) (finding the parent's “sporadic efforts” over three and one-half years insufficient to forestall termination).
We affirm the orders terminating the parental rights of both mother and father.
AFFIRMED. Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).