Opinion
No. COA04-531
Filed 19 April 2005 This case not for publication
Appeal by respondents from orders entered 29 September 2003 by Judge Franklin F. Lanier in Harnett County District Court. Heard in the Court of Appeals 1 December 2004.
E. Marshall Woodall, for petitioner-appellee Harnett County Department of Social Services. Mercedes O. Chut, for respondent-appellant father. Terry F. Rose, for respondent-appellant mother. McDaniel Anderson, L.L.P., by John M. Kirby, for the Guardian ad Litem-appellee.
Harnett County Nos. 02 J 23-27.
Ms. M.A.N. ("mother") and Mr. M.A.N. ("father") appeal orders terminating their parental rights as to B.N., M.N., T.N., N.N., and M.L.N. (collectively, the "children"). We affirm.
In 1998, the Harnett County Department of Social Services ("DSS") investigated two reports for neglect concerning the mother and the father with respect to their children. Both of these reports were unsubstantiated; however, two later reports for neglect and an environment injurious to the children were substantiated. The first substantiated report, which occurred in 2000, involved domestic violence and a situation where the parents took the children with them to purchase drugs for the father. A restraining order was necessary to protect the mother from the father, and case management services were established for the mother, with whom the children remained. The second substantiated report for neglect occurred in August of 2001. The children had ringworms and bug bites for which they had not received medical care. In addition, the family was living in a dirty camper with a yard enclosed by a fence in which trash and pigs were located, and the father had an outstanding warrant for his arrest. The children were removed from the home, and a family services case plan was developed.
M.L.N was born 1 November 2001. Accordingly, certain portions of the facts concerning events prior to 1 November 2001 do not apply to M.L.N. despite reference, collectively, to the children.
In January of 2002, the father was released from prison for approximately three days before he was arrested for new charges and was sentenced to a minimum term of thirty-five years in prison. The mother was also arrested but was subsequently released; however, on 29 January 2002, DSS filed juvenile petitions for neglect and dependency, and the court entered non-secure custody orders for all the children. In March of 2002, another DSS family services case plan instructed the mother to obtain and maintain employment and provide a stable, safe, drug-free home. In June 2002, a substantially-identical family services case plan was developed, except this plan indicated the mother had obtained employment. Nevertheless, on 1 July 2002, the court found the parents had not made reasonable progress and adjudicated the children neglected. Specifically, the court found the children had a ringworm infestation and bug bites, they did not receive proper medical care, and they lived in a filthy camper located inside an enclosed pigpen.
In September of 2002, another family services case plan required the mother to obtain and maintain full-time employment. The plan noted the mother had obtained and maintained part-time employment for approximately six months. On 18 November 2002, the court entered a disposition order finding that further reunification efforts would be futile on the basis that DSS had been providing services since 2001 and the parents did little to comply with DSS' efforts, particularly after the adjudication in April of 2002. The trial court ordered a home study of the paternal grandparents and ordered DSS to file termination proceedings in the event the home study was not approved. A home study was performed and not approved.
DSS subsequently filed petitions to terminate the parental rights of respondents on 24 March 2003, alleging respondents neglected the minor children as contemplated by N.C. Gen. Stat. § 7B-1111(a)(1) (2003) and willfully left the children in foster care or placement outside the home for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the juvenile as contemplated by N.C. Gen. Stat. § 7B-1111(a)(2) (2003). The paternal grandparents filed a motion to intervene, which was denied. On 29 September 2003, the trial court terminated respondents' parental rights based on the statutory grounds set forth in N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2). Respondents appeal from the orders terminating their parental rights.
I. Standard of Review
A termination of parental rights proceeding is comprised of two stages: adjudication and disposition. In re Faircloth, 153 N.C. App. 565, 575, 571 S.E.2d 65, 72 (2002). "At the adjudicatory stage, the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists." Id. "If a ground for termination is so established, the trial court must proceed to the second [dispositional] stage" and determine "whether termination is in the best interests of the child." Id. "Unless the trial court determines that the best interests of the child require otherwise, the termination order shall be issued." Id.
Our standard of review for the adjudication stage of an order terminating parental rights is limited to determining whether the trial court's findings of fact are supported by clear, cogent and convincing evidence. In re Blackburn, 142 N.C. App. 607, 612, 543 S.E.2d 906, 909 (2001). With respect to the dispositional stage, we review the trial court's ruling only for an abuse of discretion. Id., 142 N.C. App. at 614, 543 S.E.2d at 911.
II. Mother's Appeal
Only one of the statutory grounds under N.C. Gen. Stat. § 7B-1111(a) is required to support an order terminating parental rights. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). In the instant case, the trial court terminated the mother's parental rights pursuant to, inter alia, N.C. Gen. Stat. § 7B-1111(a)(2), where "[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile." Willfulness may be found where a parent has failed to exhibit reasonable progress or a positive response toward the efforts of DSS. In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996). "Implicit in the meaning of positive response is that not only must positive efforts be made towards improving the situation, but that these efforts are obtaining or have obtained positive results." In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
In the instant case, the lack of a stable and safe home environment and the lack of employment which would allow the mother to support her children were the two persistent concerns prompting intervention by DSS. Both of these concerns were emphasized as DSS' goals and were reflected in the family services case plans. Notwithstanding the efforts of DSS, the mother worked only eighteen hours in any given week despite being in good health. Moreover, although the mother moved out of the camper, resided with her mother, and applied for housing with the Sanford Housing Authority, she was placed on a wait list and never secured adequate housing. While the evidence of record shows the mother obtained some employment, paid minimal child support for a short period of time immediately before the termination of parental rights hearing, and applied a single time for housing, we disagree that the trial court's findings concerning reasonable progress were improper. The mother visited the children four times in a four-month period, made minimal efforts to find suitable housing, and, despite being in good health, failed to obtain full-time employment. Given this lack of progress in light of the assistance provided, we hold there was clear and convincing evidence the mother willfully left the children in foster care without making reasonable progress to cure the conditions which led to their removal. Accordingly, we need not address the mother's arguments as to the other ground found by the trial court in support of its termination order. The mother's generalized arguments concerning issues of poverty, her education level, and her qualifications for skilled labor lack any evidentiary support.
The mother also asserts the trial court erred in concluding as a matter of law that it was in the best interests of the children to terminate her parental rights in the absence of evidence as to the status of the children at the time of the termination proceeding. The mother's argument on appeal is devoid of any citation to supporting authority in violation of N.C.R. App. P. 28(b)(6) (2004). Accordingly, this assignment of error is overruled. Moreover, having established that grounds for termination existed given the mother's lack of reasonable progress, we cannot say the trial court abused its discretion in determining it was in the best interests of the children to terminate the mother's parental rights.
II. Father's Appeal
The trial court terminated the father's parental rights to the children pursuant to, inter alia, N.C. Gen. Stat. § 7B-1111(a)(1) after finding that the father had neglected the children within the meaning of N.C. Gen. Stat. § 7B-101 (2003). A neglected juvenile is one "who does not receive proper care, supervision, or discipline from the juvenile's parent . . . or who lives in an environment injurious to the juvenile's welfare. . . ." N.C. Gen. Stat. § 7B-101. Besides considerations regarding the care, supervision, discipline, and environment, this Court has noted a trial court may also consider a prior adjudication of neglect, see In re Beasley, 147 N.C. App. 399, 404, 555 S.E.2d 643, 647 (2001), and incarceration, see In re Williams, 149 N.C. App. 951, 960-61, 563 S.E.2d 202, 207 (2002).
In the instant case, the evidence at trial supported the following: (1) the father is currently serving a term of not less than thirty-five years, (2) the father was released from prison in January 2002 for only three days before committing the offense for which he is currently incarcerated and during those three days only spent approximately three minutes with the children, (3) the father has not supported the children in any way, (4) the father has not contacted DSS regarding the status or welfare of the children, (5) the father offered no placement for the children which was deemed suitable after a home study by DSS, (6) the children were previously adjudicated neglected given their living and medical conditions, and (7) the father had no contact with the children after his incarceration in January 2002. The trial court made findings of fact with respect to all but the last of these enumerated facts.
The majority of the father's arguments concern his parenting abilities in light of his incarceration and his proffer of his parents, the paternal grandparents, as placement for the children. We are unpersuaded. With respect to his incarceration, we note the father has not contacted DSS or the children. While he testified that he sent letters to his parents for his children, he also testified he knew the children did not receive the correspondence because his parents were unaware of the children's location. He testified he never contacted DSS because he believed "[t]hey wouldn't tell me nothing. If I need anything . . . I go to my attorney. I knew going to [DSS] would be useless." The father's forecast, even if genuinely believed, cannot hide the fact that he simply made no attempt at all to contact DSS or learn of his children's location or welfare. The father's letters to the children are also unavailing in light of the fact that he knew they were not receiving them and undertook no action which would help assure the letters would reach the children. While incarceration may impact a parent's ability to undertake traditional parental action, the father could still contact his children, offer suitable placement options, and otherwise exert some effort to be involved in the children's lives.
Given the record evidence, we find no error in the trial court's termination of the father's parental rights. As the trial court correctly found, the father was released from prison and, instead of visiting his children to offer familial support, love, care, and discipline, the father opted to engage in further criminal activity to the detriment of his children. While incarceration cannot, alone, justify terminating a parent's rights, a parent's choice to engage in actions which will deprive the children of the benefits of his presence is certainly a factor the trial court can consider. Simply put, defendant engaged in criminal activity instead of spending time with his children and spent only three minutes with his children over the course of three days when he had the opportunity to be with them. Such facts bear on the question of neglect. Likewise, the father's failure to support his children in any way since his incarceration is relevant. We speak of more than monetary support. As noted before, the father neither contacted his children directly nor contacted DSS in any manner to inquire as to their needs or welfare. Notwithstanding the father's ability or willingness to provide financial support, the father has taken no meaningful, affirmative actions in favor of the children. The findings of the trial court are supported by clear and convincing evidence, and we find no error in the trial court's adjudication that the father's parental rights could be terminated for neglect under N.C. Gen. Stat. § 7B-1111(a)(1).
In his last assignment of error, the father asserts the trial court erred in failing to conduct a separate, bifurcated hearing as to whether termination of his parental rights was in the best interests of the children. This Court has previously expressly rejected that a termination of parental rights proceeding had to take place in two separate hearings on the presumption that the judge knows the law and can "consider the evidence in light of the applicable legal standard and to determine whether grounds for termination exist before proceeding to consider evidence relevant only to the dispositional stage." In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38 (1986) (citing 1 H. Brandis, North Carolina Evidence § 4a (2d rev. ed. 1982)). This is true regardless of whether the trial court verbalizes that it has moved from one phase to another or whether it occurs in two separate hearings. This argument is without merit.
The father argues alternatively in this assignment of error that the trial court never undertook the dispositional phase concerning the best interests of the children because "no evidence [was heard] to support a finding or conclusion that termination of the [father's] parental rights is in [the children's] best interest." We disagree. First, the father fails to cite or argue the correct standard of review, which is whether the trial court abused its discretion with respect to this phase of the hearing. Second, we note that at the dispositional stage, "a court is required to issue an order of termination unless it determine[s] that the best interests of the child require that the parental rights of such parent not be terminated." In re Parker, 90 N.C. App. 423, 431, 368 S.E.2d 879, 884 (1988) (citation and internal quotation marks omitted). Here, the trial court expressly found that there was a "reasonable probability that the neglect of the [children] by [their] parents will continue for the foreseeable future" as well as that termination was in the children's best interests "in order to provide a safe and permanent home. . . ." Having found that termination was justified due to neglect and that such neglect was likely to continue, we find no abuse of discretion by the trial court in concluding it was in the best interests of the children to terminate the father's rights. This assignment of error is overruled.
We have carefully considered respondents' remaining arguments and find them to be without merit.
Affirmed.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).