Opinion
No. COA08-1384.
Filed May 5, 2009.
Durham County Nos. 05 J 279-80.
Appeal by respondent from an order entered 15 August 2008 by Judge Ann E. McKown in Durham County District Court. Heard in the Court of Appeals 13 April 2009.
Assistant County Attorney Cathy L. Moore, for Durham County Department of Social Services, petitioner-appellee. Christy Hamilton Malott, for Guardian ad Litem. Joyce L. Terres, for respondent-appellant mother.
Tammy Herring ("respondent") appeals from the trial court's order terminating her parental rights as mother to daughters M.D., born in 1993, and J.D., born in 1994, on the grounds of (1) neglect, (2) willfully leaving the children in foster care for more than twelve months without making reasonable progress to correct the conditions which led to the removal of the children, and (3) willful failure to provide support. After careful review, we affirm the order of the trial court.
The trial court's order also terminated the parental rights of the children's father, R.D. He is not a party to this appeal.
The family has a long history with social services, beginning in 1993 when allegations against respondent first were brought to the attention of Durham Department of Social Services ("Durham DSS"). In 1995, respondent contacted Durham DSS and asked that her children be placed in foster care because she no longer could care for them. The children, who were two and three years of age at the time, were placed in the custody of their maternal grandmother, Yvonne Mack ("Mack"). She relocated the family to Charlotte, and in 2001, she became involved with child protective services. Allegations indicated that Mack had substance abuse issues and was involved in relationships in which domestic violence occurred. After Mack failed to address her issues, the children were placed in foster care in 2002.
The children each had several different placements until they were placed with their maternal aunt and uncle, Veronica Gilchrist ("Ms. Gilchrist") and Eric Gilchrist ("Mr. Gilchrist") (collectively, "the Gilchrists"), on 13 June 2005 in Durham County. In August 2005, the Gilchrists were awarded guardianship by a Mecklenburg County trial court. On 18 August 2005, Durham DSS received a report that Mr. Gilchrist hit J.D. several times and that he expressed inappropriate sexual behaviors toward neighborhood boys in front of the girls. The report also contained alleged incidents of domestic violence between the Gilchrists, as well as an incident in which Mr. Gilchrist shoved M.D. so hard into her bedroom wall that she left a hole in the wall. Further, Ms. Gilchrist refused to care for M.D. any longer, but indicated that J.D. could stay. In the course of investigating the allegations, Durham DSS also discovered that Mr. Gilchrist had been convicted of a sexual offense with a minor in 1990. On 20 September 2005, M.D. was removed from the Gilchrists' home, and J.D. was removed the following day. The separate juvenile petitions filed by Durham DSS on 21 September 2005 as to M.D. and J.D. each alleged neglect. Durham DSS was granted nonsecure custody, and the children were placed in a foster home.
The trial court adjudicated the children dependent on 16 November 2005. The trial court found that the conditions leading to the adjudication included the respondent's inability to take care of the children and noted that the children had a chaotic lifestyle after being in the care of respondent, various foster parents, and relatives. The trial court determined that the children should not be returned to the Gilchrists' home and ordered that the children be placed in the legal custody of Durham DSS. The trial court granted supervised visitation to respondent and ordered that an assessment be conducted of respondent's home.
On 23 May 2006, the trial court entered an order relating to a review hearing held on 14 February 2006. The trial court made findings regarding the behavioral and mental health problems of both girls. The trial court found that respondent was employed, but she had not found housing independent of her mother, Mack, nor had she begun parenting classes or therapy. The trial court also noted that respondent continued to make an effort to be involved with the girls in that she was traveling to Durham from her mother's home in Charlotte. The trial court ordered that if respondent desired reunification, she needed to cooperate with mental health services, attend bi-monthly visitation with the children, and obtain and maintain independent housing and employment.
At the 31 July 2006 review hearing, the trial court found that M.D. was in her fourth placement since leaving the Gilchrists' home and that she had been diagnosed with post traumatic stress disorder, oppositional defiant disorder, and severe attachment issues. J.D. was in her fifth placement and had been diagnosed with post traumatic stress disorder, oppositional defiant disorder, and severe attachment issues. Both children expressed enjoying their visits with respondent, but doubted whether she ever would be able to care for them. Both girls also expressed an interest in being adopted. The trial court found that respondent only visited the girls four times between 14 February 2006 and 31 July 2006, and that Durham DSS had paid for train tickets two of those times. Respondent continued to live with her mother, and she had not signed up for parenting classes or mental health treatment. The trial court stated that the permanent plan was reunification with a concurrent plan of custody to a court-approved caretaker, and ordered respondent to obtain a psychiatric evaluation including an IQ assessment, in addition to attending bi-monthly visitation, obtaining independent housing, and maintaining employment.
By order entered on 28 November 2006 after a hearing held on 30 October 2006, the trial court found that J.D. was in jeopardy of losing her placement due to behavioral problems. Both children were receiving services for their respective behavioral and mental health issues. Respondent was more active in her efforts at reunification, including calling the social worker frequently and visiting with the children once a month. Her trips to Durham from Charlotte were paid for by Durham DSS. By that hearing date, respondent still had not established independent housing, but was on lists for public housing in both Mecklenburg and Durham counties. She had not signed up for parenting classes or mental health treatment. She was unable to obtain a psychiatric evaluation due to having taken an exam already. The trial court ordered respondent (1) to obtain a psychiatric evaluation, (2) to continue visitation, (3) to obtain independent housing, (4) to participate in family therapy, (5) to "prove [herself] able to appropriately parent her children despite their significant mental health issues," and (6) to maintain employment.
By the 29 January 2007 review hearing, both children had made some positive changes in behavior. Respondent was unemployed after having been fired from a job due to an altercation. Although she had applied for public housing in both Charlotte and Durham, she indicated to Durham DSS that she was considering moving to Wyoming to live with a cousin. She was unable to visit the children because she had no money for bus or train tickets. Durham DSS offered to pay for a ticket, but respondent declined, stating her preference to wait until 6 February after a court date. The trial court found a compelling reason not to proceed with termination of respondent's parental rights in that respondent's anticipated move might improve her circumstances, and ordered that reunification efforts with respondent should continue for the next six months.
By order entered 13 August 2007 after a review hearing held on 31 July 2007, the trial court found that both girls exhibited deterioration in their behavior after learning that prospective adoptive parents had been identified. Respondent decided not to move to Wyoming and in fact moved into public housing in Charlotte on 9 June 2007, independent from her mother. Although she was still unemployed, she continued to search for a job. Respondent did not visit the children due to lack of money for transportation. Durham DSS offered to pay, but respondent declined, stating that she would prefer to wait until she had to attend court. The trial court noted compelling reasons not to pursue termination of parental rights given that respondent's condition may improve and the children have significant mental health needs, which need to be addressed before locating adoptive homes for them. The trial court stated that the permanent plan still was reunification with respondent, with a concurrent plan of adoption. Durham DSS was ordered to provide assistance with transportation for respondent to attend visitation, and respondent was ordered to comply with the same requirements from the previous order.
On 23 January 2008, Durham DSS filed a motion for termination of parental rights, alleging as grounds: (1) neglect; (2) willfully leaving the children in foster care for more than twelve months without making reasonable progress to correct the conditions which led to the removal of the children; (3) dependency due to respondent's inability to provide proper care and supervision; and (4) willful failure to pay a reasonable cost of care for the children. The matter came on for hearing on 27 June and 15 July 2008.
At the hearing, respondent testified with regard to her efforts to comply with the case plan. She testified that she (1) had secured a three-bedroom apartment through the Housing Authority in Charlotte in May 2007, (2) had found employment as a packer for an airline food service, (3) had completed evaluations, (4) had attended counseling sessions, (5) had attended parenting classes, (6) had signed up for vocational rehabilitation services, and (7) had paid child support every time she was able.
However, when she was questioned further, respondent admitted that she had seen a counselor only once, and that she had a series of jobs, each of which lasted from one to two months with occasional periods of unemployment. She stated she visited with the children twice a month, although she admitted that the last time she had seen them was in November 2007. Furthermore, respondent testified that, at the time of the hearing, M.D. was fifteen years old and J.D. was thirteen years old, but that the last time M.D. and J.D. had lived with respondent, M.D. was two years old and J.D. was one year old. Respondent said that she spoke with the children regularly by phone, but she had not participated in any therapy sessions with either child. Between the two hearing dates, 27 June and 15 July 2008, respondent was laid off from the job she had secured as a packer, but had found another job through vocational services with a cleaning service at the airport.
Durham DSS social worker Robin Walton ("Walton") testified that she was assigned to the case in December 2006. Durham DSS supervisors were ready to change their suggestion for the permanent plan to adoption in January of 2007, but Walton asked for more time to try to assist respondent with regaining custody of the juveniles because she was new to the case. However, by the termination hearing it was the opinion of Durham DSS that respondent had not complied with the recommendations of her psychological examination, which were that she participate in therapy sessions with the children and receive counseling for herself. Nor had respondent adequately demonstrated to Durham DSS that she could effectively parent the juveniles, particularly given their mental health issues. It was Walton's opinion that respondent had not demonstrated an adequate understanding of the mental health needs of her children. Furthermore, respondent had not maintained employment to the Department's satisfaction. Walton testified that
[t]he [Durham DSS] wants to see that [respondent]'s able to care for her girls-be-be the parent and not allow the girls to direct her, to take the initiative to go out and seek services for herself instead of having her children do it for her or calling them asking for funds, um, money, and, um, also when she came for visits she would look for the girls to provide her with food or to ask the social worker, um, for money for food.
With respect to visitation with the children, respondent had not attended regularly. Walton testified that respondent's last visit with M.D. was in September 2007, and her last visit with J.D. was in August 2007. There were problems with these visits, including a visit during which respondent convinced M.D.'s group home staff to let them leave unsupervised, notwithstanding the fact that visits were supposed to be supervised. Respondent took both of her daughters to the Gilchrists' home, even though the girls were not supposed to have any contact with the Gilchrists. Respondent never established regular visitation with the children-even when Durham DSS provided assistance for transportation from Charlotte to Durham. Walton also noted that respondent had given the girls contact information for their biological father, even though he had been convicted of incest and was not supposed to have contact with them. Respondent would raise the possibility of termination of her parental rights, and tell the girls that they would not have any more contact with their family, thereby upsetting them. She also asked M.D. for money, exacerbated tension and conflict with the girls, and frustrated the progress that the girls had been making.
Prospective adoptive parents were identified for each child. Tiffany Williams ("Williams") is a former foster parent of the girls who lives in Charlotte, and she was willing to take M.D. Sonya Shelby ("Shelby") was identified as the prospective adoptive parent for J.D. Shelby's daughter was J.D.'s teacher for a time, and the two got to know each other. Shelby lives in South Carolina, close to Mecklenburg County, North Carolina. Shelby and Williams know each other and intend to allow the girls to visit with each other and with respondent in Charlotte. Each child wants to be adopted by her respective proposed-adoptive parent. Since the children were placed in Durham DSS custody in 2005, M.D. has lived in eleven different placements, and J.D. has lived in nine different placements. The girls expressed interest in having a stable home life, but neither want to live with their mother because they do not feel that she can take care of them, and they will be forced to return to foster care again.
On 15 August 2008, after hearing all of the evidence, the trial court entered an order which concluded that grounds existed to terminate respondent's parental rights on the bases of (1) neglect, (2) willfully leaving the children in foster care for more than twelve months without having made reasonable progress towards correcting the conditions which led to their removal, and (3) failure to pay a reasonable cost of care of the children. The trial court then considered the best interests of the children, and determined that termination of respondent's parental rights would be in their best interests. Respondent appeals and challenges each of the grounds for termination found by the trial court.
Proceedings in termination of parental rights cases are divided into two parts: (1) the adjudication phase, governed by North Carolina General Statutes, section 7B-1109, and (2) the disposition phase, governed by North Carolina General Statutes, section 7B-1110. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). "`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 (2004) (quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)). Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). An order terminating parental rights will be upheld if one or more grounds for termination is found. N.C. Gen. Stat. § 7B-1110(a) (2007). Once a trial court has determined that at least one ground exists, the trial court then decides whether termination of parental rights is in the best interests of the child. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
Parental rights may be terminated when "[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) (2007). Parental rights shall not be terminated under this section "for the sole reason that the parents are unable to care for the juvenile on account of their poverty." Id. Willfulness does not imply fault on the part of the parent, but may be "`established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.'" In re O.C. O.B., 171 N.C. App. 457, 465, 615 S.E.2d 391, 396 (quoting In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001)), disc. rev. denied, 360N.C. 64, 623 S.E.2d 587 (2005). "`A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.'"
Id. (quoting In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995)).
Respondent challenges the conclusion that she willfully left the children in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress had been made to correct the conditions which led to the removal of the children. She contends the trial court erred by failing to make any findings that her actions were willful in leaving the children in foster care, because financial hardship and mental limitations prevented her from participating more fully in visits and other matters. Since the court failed to find that she was actually capable of making reasonable progress, respondent argues, she cannot be found to have acted willfully. Respondent further contends the court erred in failing to make findings regarding whether her progress was reasonable under the circumstances. We disagree.
Preliminarily, we note that while respondent assigned error to several of the trial court's findings of fact, she has not brought forward any of those assignments of error in her brief. The trial court's findings of fact, therefore, are deemed to be supported by competent evidence and are binding upon the parties and this Court. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Assignments of error that were not brought forward in the brief are deemed abandoned. N.C. R. App. P., Rule 28(b)(6) (2007). In the case sub judice, the relevant time period is twelve months prior to the filing of the motion for termination of parental rights on 23 January 2008. The trial court made the following findings relating to respondent's progress on her case plan:
9. At the first review on February 14, 2006, or at various other review hearings, the mother, Tammy Herring, was ordered to complete and adhere to the recommendations of a psychological evaluation; attend bimonthly visitations with [M.D. and J.D.], maintain housing which is independent from the maternal grandmother; participate in family therapy, if recommended by the therapists for the children; complete a parenting program; demonstrate the ability to appropriately parent her children despite their significant mental health issues; maintain employment; and visit the children consistently.
10. The respondent mother, Tammy Herring, has complied with the court orders in part as follows: She has obtained a psychological evaluation. She had secured employment through a temporary agency but the work was sporadic resulting in unstable income. By her own testimony, the mother has worked at Sky Chef, SMX at two separate times, and Kellogg's. Ms. Herring has secured housing independent from the maternal grandmother. She attended some vocational rehabilitation services in Charlotte.
11. Respondent mother, Tammy Herring, has not complied with the court orders as follows: Ms. Herring does not regularly visit with her children because she is not able to travel from Charlotte, NC due to lack of transportation and funds. She has not utilized travel assistance provided by Durham DSS to visit with her children. The date of her last visit with [M.D.] was September 29, 2007, and her last visit with [J.D.] was in August of 2007. She attended more visits with the child, [M.D.], than the child, [J.D.]. She has not attended parenting classes. She has not attended individual therapy or therapy with the children. She has absolutely no insight into these girls, who they are, and what their needs are. She has not visited in order to learn how they behave and how to help them.
. . . .
13. The social worker expressed a willingness and interest to continue to work with the mother to help her regain custody of the children. The mother was not willing to move to Durham, and consequently did not participate in the children's therapy and her own therapy. She continued to live in Charlotte and saw the children infrequently.
We find that the findings fully support the trial court's conclusion that respondent willfully left the children in foster care for more than twelve months without showing to the satisfaction of the trial court that she had made reasonable progress in correcting the conditions which led to the removal of the children from her home. The trial court stated that the children were removed due to respondent's inability to care for them. The findings above show respondent's lack of progress in particular areas of her case plan to address that problem, including maintaining stable employment, visiting with the children on a regular basis, completing parenting classes, and participating in individual therapy or the children's therapy. The trial court considered and acknowledged respondent's financial and mental health limitations in other findings.
However, respondent showed that she was capable of complying with court orders in that she did make some progress, such as obtaining independent housing, signing up for vocational rehabilitation services, and finding jobs on occasion.
Notwithstanding this apparent capability, her failure to keep a steady job, her refusal to visit the children even when offered assistance by Durham DSS, as well as her failure to address any of her own mental health needs or her children's mental health needs are more than sufficient to support the trial court's conclusion that she has not made reasonable progress under the circumstances to correct her inability to take care of the children. Although respondent made some progress, limited progress is not necessarily reasonable progress under the circumstances, and the trial court is not precluded from finding that respondent willfully left the children in foster care. See In re O.C. O.B., 171 N.C. App. at 465, 615 S.E.2d at 396. We conclude, therefore, that the trial court did not err in finding as a ground for termination that respondent willfully left the children in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress was made to correct the conditions which led to the removal of the children.
Because we find that the termination of respondent's parental rights properly was supported by the ground of failure to make reasonable progress, we need not address respondent's arguments with regard to the other two grounds found by the trial court. N.C. Gen. Stat. § 7B-1110(a) (2007). The trial court's order terminating respondent's parental rights is hereby affirmed.
Affirmed.
Judges STEPHENS and STROUD concur.
Report per Rule 30(e).