Opinion
No. COA09-1713
Filed 1 June 2010 This case not for publication
Appeal by respondent from order entered 22 September 2009 by Judge Ali Paksoy, Jr. in Lincoln County District Court. Heard in the Court of Appeals 28 April 2010.
Carolyn Crouch for petitioner-appellee. Hartsell Williams, P.A., by Christy E. Wilhelm, for respondent-appellant. N.C. Administrative Office of the Courts, by Pamela Newell, for guardian ad litem.
Lincoln County Nos. 07 JT 146, 07 JT 147.
Respondent mother appeals from the trial court's order terminating her parental rights to her minor children, "Carl" and "Beth." Respondent mother contends that the trial court's findings of fact do not support its conclusion that she failed to make reasonable progress in correcting the conditions that led to the children's removal and, therefore, that grounds existed for termination under N.C. Gen. Stat. § 7B-1111(a)(2) (2009). We hold that the trial court's findings, supported by clear and convincing evidence, that respondent mother continually failed to obtain stable employment and independent housing until two weeks before the termination hearing amply support the court's conclusion that grounds existed to terminate respondent mother's parental rights.
This opinion uses pseudonyms for the names of the minor children in order to protect the children's privacy and for ease of reading.
Respondent mother also asserts that the trial court erred in failing to make findings of fact regarding the tribal status of the minor children. Because the trial court previously found in two separate orders that no evidence had been presented that the minor children were Indian children as defined by the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 et seq. (2006), and there was no further evidence offered at the termination of parental rights ("TPR") hearing tending to show otherwise, we hold that the trial court was not required to make additional findings in the TPR order as to the children's tribal status. We, therefore, affirm.
Facts
On 21 September 2007, the Lincoln County Department of Social Services ("DSS") filed a juvenile petition alleging that Carl, born on 15 March 2002, and Beth, born on 23 May 2001, were dependent juveniles. Prior to the filing of the petition, respondent mother, while living in Lincoln County, had placed the minor children with their paternal grandmother and moved to Wilmington, North Carolina. The children's father was in South Carolina. When the paternal grandmother was arrested and incarcerated, the children stayed with another unrelated individual who became unable to care for them and contacted DSS. DSS took custody of the minor children pursuant to a non-secure custody order. On 13 December 2007, the trial court entered an order adjudicating the minor children dependent because respondent mother was unable to provide for the children's care and lacked a suitable alternative arrangement for their care. Respondent mother had stipulated that the children were dependent.
Neither parent attended the disposition hearing held on 10 December 2007. In the dispositional order entered 3 March 2008, the trial court found that respondent mother still lived in Wilmington and had transportation problems, while respondent father was in South Carolina. Both parents were ordered to complete substance abuse evaluations, to comply with treatment recommendations, and to submit to random drug screens. Respondent mother was also ordered to obtain and maintain a stable residence and employment and to complete parenting classes.
On 10 March 2008, the trial court entered a review order finding that since the minor children had been in DSS custody, respondent mother had been living in Wilmington with her mother. When respondent mother was asked to leave her mother's residence on 27 December 2007, she first moved to a homeless shelter in Wilmington. Respondent mother then relocated to Fort Mill, South Carolina, where she was living with her boyfriend, Charles Hardy, his mother, and her youngest child. Mr. Hardy is a registered sex offender. Respondent mother told the court she planned to live there until she could get back on her feet. The trial court also found that respondent mother was unemployed, had failed to initiate any of the court-ordered services, had registered for parenting classes and scheduled her substance abuse assessment, had visited the children only once, and had sporadic phone contact with them. The trial court determined that the conditions that led to the removal of the children from the home continued to exist.
The trial court found in a review order entered on 12 May 2008 that respondent mother had, at that point, made substantial progress. She had completed an intensive out-patient substance abuse program and parenting classes. She had submitted to random drug screens that were all negative. She had also found employment and independent housing as of 20 March 2008. She was visiting the minor children more regularly and contacted them by phone at least once a week.
On 29 July 2008, the trial court entered a review order finding that although respondent mother had been making progress, that "direction now seems to be reversing." The court found that during a visit to respondent mother's new home in South Carolina, it was discovered to be extremely dirty and unkempt. Respondent mother's finances were unstable. She had only visited the minor children on four occasions since April 2008, although she could have visited more often. During one of the visits, the children spoke to Mr. Hardy on the telephone although that was not permitted. At least three of the visits took place only because DSS or the foster parents provided transportation.
After a permanency planning hearing, the trial court entered an order on 13 August 2008 finding that during a visit to the respondent mother's home, there were dog and cat feces in the home and several areas saturated with dog and cat urine. Respondent mother was employed, but had no transportation. She had been in contact with respondent father, and he had broken into her home and a domestic violence incident occurred. On 30 June 2008, respondent mother moved back in with Mr. Hardy, but a subsequent home study conducted by DSS was not approved. The trial court expressed its dissatisfaction with respondent mother's progress and admonished her that she would need to improve her situation dramatically and quickly if she wished to have a relationship with her children.
On 2 October 2008, after a hearing, the trial court entered a permanency planning order concluding that the conditions leading to the removal of the children continued to exist and that respondent mother had made minimal progress towards correcting those conditions. The court determined that due to respondent mother's failure to make reasonable progress, she was not "at all likely" to have the minor children returned to her in the next six months. Reunification efforts were ceased, and the permanent plan for the children was changed to adoption.
On 14 November 2008, DSS filed a petition to terminate respondent mother's parental rights. In the petition, DSS alleged that three grounds existed for termination: N.C. Gen. Stat. § 7B-1111(a)(1) (neglect), N.C. Gen. Stat. § 7B-1111(a)(2) (willfully leaving child in foster care without making reasonable progress towards correcting conditions leading to removal), and N.C. Gen. Stat. § 7B-1111(a)(3) (failure to pay child support). On 31 December 2008, respondent mother filed her answer, alleging that the trial court lacked subject matter jurisdiction in that the minor children were registered members of the Cherokee and Choctaw Indian tribes, that the ICWA applied, and that the Indian Tribal courts had exclusive jurisdiction. Respondent mother denied the allegations in the petition.
On 13 March 2009, the trial court entered an order finding that respondent mother continued to lack permanent housing and employment, stressing that "[t]his has been a problem throughout the life of this case." Respondent mother did not visit with her children at all between July 2008 and October 2008. After that, she attended three of five visits, but had not scheduled a visit since December 2008. The court found that conditions leading to removal continued to exist.
In an order entered 3 April 2009, the trial court found that while respondent mother was in the process of applying to be a member of the Choctaw Indian Tribe in Mississippi, "there is no evidence, at this time, that she currently is a member of an Indian tribe such that her son would qualify under the Indian Child Welfare Act." On 29 June 2009, the trial court entered another order finding that "there has been no evidence submitted to the Court that either of the children come within the terms of the Indian Child Welfare Act."
The TPR hearing was held on 11 August 2009, and on 22 September 2009, the trial court entered an order terminating respondent mother's parental rights to both minor children. The trial court found that the minor children had been in DSS custody for over a year, and respondent mother "had never established a stable home nor had adequate housing while the children were in the custody of the Petitioner." Two weeks before the hearing, respondent mother had obtained independent housing, a job, and transportation. Respondent mother acknowledged that up until 30 July 2009, she had not been in the position to care for her children.
The court found that respondent mother had attended parenting classes and had two negative drug tests. Respondent mother tested negative in January 2008, but refused to be screened on her last two occasions in March and July 2009, although she also tested negative in a drug test for her employer on 30 June 2009. The trial court found that respondent mother had approximately 63 opportunities to visit her children since they were taken into DSS custody, but she only exercised visitation 17 times and went long periods of time without visiting. Although respondent mother visited regularly from 28 January 2008 through 17 May 2008, after that point until 7 July 2009, she only visited seven times.
The trial court also found that "the conditions that led to the removal of the children have not been corrected." It emphasized that any progress was not made until shortly before the TPR hearing began and "well after" the TPR petition was filed. The court found that respondent mother's "prolonged inability to improve her situation, despite some progress, shows a lack of progress in correcting those conditions that led to the removal of the children in the first place." The court further found that although respondent mother had worked while her children were in DSS custody, she had not paid any child support.
The court then concluded that grounds for termination existed "based on neglect, and willfully leaving the children in foster care for more than twelve (12) months without making reasonable progress and failing to pay adequate child support." It determined termination to be in the best interests of the minor children and ordered respondent mother's rights terminated. Respondent mother timely appealed to this Court.
I
Respondent mother first contends the trial court did not make its own ultimate findings of fact, but improperly relied upon findings of fact and conclusions of law from previous orders in the underlying juvenile case. Specifically, respondent mother objects to the following findings of fact:
5. That the Court reviewed and considered the findings of fact, conclusions of law, and decretal portions of the Orders in the underlying juvenile case, including, but not limited to, the Adjudication and Disposition, Reviews, and Permanency Planning Orders, but did not consider the contents of any report which may have been incorporated by reference in any of said Orders. The Court hereby incorporates by reference the findings of fact, conclusions of law, and decretal portions of all said Orders into this Order, and furthermore takes judicial notice of all those Orders. That the Court does not incorporate the contents of any report mentioned as being incorporated in those said Orders.
. . . .
47. That whenever the Court has in this Termination of Parental Rights Order referred to or otherwise set out a portion of an Order in the underlying case, said portion referred to or set out is found as fact by this Court in this Termination of Parental Rights Order.
Respondent mother also points to various findings of fact in the TPR order that reference prior orders.
Respondent mother contends that the trial court could not properly take judicial notice of prior court orders because "[a] court cannot take judicial notice of a disputed matter." The law is, however, to the contrary. See In re J.W., K.W., 173 N.C. App. 450, 455-56, 619 S.E.2d 534, 539-40 (2005) (acknowledging appropriateness of judicial notice of prior proceedings and rejecting argument that trial court improperly considered "previous order of adjudication, review orders, and permanency planning orders"), aff'd per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006).
Respondent mother further contends that "[i]n stating that it reviewed the findings of fact, conclusions of law, and decretal portions of these orders, which were based upon the allegations in the reports of Lincoln DSS, the trial court was in effect adopting `whole cloth' the allegations made by the Lincoln DSS, without exercising any independent judicial review." Our review of the order indicates that the trial court made proper independent findings of fact. We cannot understand how the trial court could be seen as not exercising independent judicial review simply because it reviewed prior orders entered in the juvenile proceedings.
In In re J.S., 165 N.C. App. 509, 511, 598 S.E.2d 658, 660 (2004), this Court held the trial court improperly delegated its fact-finding duties where it entered a cursory two-page juvenile order incorporating a DSS court report and a mental health report as a finding of fact. The Court explained that although "it is permissible for trial courts to consider all written reports and materials" submitted in a juvenile proceeding, the trial court "should not broadly incorporate these written reports from outside sources as its findings of fact." Id.
In contrast to In re J.S., here the trial court made numerous independent findings of fact unrelated to prior orders. In addition, the court specifically stated that it did not consider the reports attached to the previous trial court orders. Rather, the trial court merely incorporated findings made by previous trial judges into its own findings of fact, which the Court in In re J.S. recognized as permissible. Id. See also In re Byrd, 72 N.C. App. 277, 279, 324 S.E.2d 273, 276 (1985) ("As to the court file generally, a court may take judicial notice of earlier proceedings in the same cause."). We, therefore, hold that the trial court properly exercised its judicial function.
II
Respondent mother next challenges the trial court's conclusion that grounds for termination existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), which provides for termination of parental rights if "[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." "`The standard of 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 Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)), disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004).
Respondent mother contends first that "the conditions leading to removal were not the result of [respondent mother's] actions, but the result of the paternal grandmother's arrest." Respondent mother overlooks the fact that she left her children with the paternal grandmother because she did not have employment or a suitable place to live.
Respondent mother next argues that the trial court's findings of fact that she attended parenting classes, obtained a substance abuse assessment and treatment, and finally obtained stable housing, employment, and transportation in July 2009 show that she made reasonable progress. We disagree. It is well established that in the context of N.C. Gen. Stat. § 7B-1111(a)(2), "`[e]xtremely limited progress is not reasonable progress.'" In re J.W., K.W., 173 N.C. App. at 465, 619 S.E.2d at 545 (quoting In re B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004)). "[O]ur Courts 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,' and will support a finding of lack of progress during the year preceding the DSS petition sufficient to warrant termination of parental rights under section 7B-1111(a)(2)." Id. at 465-66, 619 S.E.2d at 545 (quoting In re B.S.D.S., 163 N.C. App. at 546, 594 S.E.2d at 93).
The trial court made unchallenged findings of fact that although respondent mother initially made some progress towards completing the plan designed for reunification, she began reversing her progress in July 2008. The court found that after July 2008, although respondent mother attended substance abuse treatment and parenting classes, she rarely visited or contacted the children and continually failed to meet the goals of obtaining stable housing and employment. Indeed, as the court found, respondent mother only obtained stable housing and employment in July 2009, eight months after the TPR petition was filed and only two weeks before the TPR hearing.
These findings of fact — together with the unchallenged finding that the minor children were in DSS custody for over 12 months — support the trial court's conclusion that grounds existed for termination under N.C. Gen. Stat. § 7B-1111(a)(2). See In re S.N., X.Z., 194 N.C. App. 142, 147-48, 669 S.E.2d 55, 60 (2008) (upholding conclusion of no reasonable progress when uncontested findings established that although mother had completed majority of requirements for substance abuse treatment and obtained stable employment, she did not have stable and suitable housing and had not successfully completed parenting classes), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009); In re N.A.L A.E.L., Jr., 193 N.C. App. 114, 120, 666 S.E.2d 768, 772 (2008) (affirming conclusion that respondent father had not made substantial progress based on findings that respondent father made some progress, but still had not maintained suitable housing or participated in anger management counseling).
Respondent mother urges that she was in full compliance by the time of the TPR hearing. A trial court is not, however, required to consider as reasonable progress efforts occurring only when parental rights are in jeopardy. See In re B.S.D.S., 163 N.C. App. at 546, 594 S.E.2d at 93 ("[R]espondent went to see a counselor only three weeks prior to the [TPR] hearing. Such a delayed effort has been deemed to be insufficient progress. . . ."); In re Oghenekevebe, 123 N.C. App. 434, 437, 473 S.E.2d 393, 397 (1996) (holding that trial court could rely upon "respondent's failure to show any progress in her therapy until her parental rights were in jeopardy").
Because of our resolution of this issue, it is unnecessary to address the other grounds for termination found by the trial court. See 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). As respondent mother makes no argument that the trial court's decision to terminate her parental rights was not in the best interests of the minor children, we do not address that issue.
III
Finally, respondent mother argues that the trial court erred in failing to make findings of fact about the tribal status of the minor children. The ICWA "is intended to regulate placement and custody proceedings involving Indian children in order to strengthen and preserve Native American families and culture." In re C.P., L.P. N.P., 181 N.C. App. 698, 701, 641 S.E.2d 13, 16 (2007).
The ICWA provides:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
25 U.S.C. § 1912(a). The ICWA further provides that an "Indian child's tribe shall have a right to intervene at any point in the proceeding.'" 25 U.S.C. § 1911(c). Finally, it allows an Indian tribe to "`petition any court of competent jurisdiction to invalidate [any action for foster care placement or termination of parental rights under State law] upon a showing that such action violated' the sections of the Act that outline the proper procedures to follow." In re C.P., L.P. N.P., 181 N.C. App. at 702, 641 S.E.2d at 16 (quoting 25 U.S.C. § 1914).
"`Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" 25 U.S.C. § 1903(4). "The burden is on the party invoking the Act to show that its provisions are applicable to the case at issue. . . ." In re C.P., L.P. N.P., 181 N.C. App. at 701-02, 641 S.E.2d at 16.
There is no contention that the minor children are members of an Indian tribe. Therefore, respondent mother had the burden of showing that the minor children were (1) eligible for membership in an Indian tribe and (2) the biological children of a member of an Indian tribe. The parties dispute whether the children are eligible for membership in any tribe. As to the second prong, however, the trial court in two previous orders found there was no evidence that respondent mother was a member of an Indian tribe, and respondent mother admitted she was not registered with either the Cherokee or Choctaw tribes. Respondent mother did not offer any further evidence at the TPR hearing that she had obtained membership in any Indian tribe.
Since there was no evidence that the minor children met the definition of "Indian children" under the ICWA at the time of the TPR hearing, it was not necessary for the trial court to make any findings in the TPR order as to the applicability of the ICWA. Accordingly, respondent mother has presented no persuasive basis for setting aside the TPR order, and we affirm.
Affirmed.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).