Opinion
No. COA02-901
Filed 7 October 2003 This case not for publication
Appeal by respondent mother from order entered 5 March 2002 by Judge Ted Blanton in Rowan County District Court. Heard in the Court of Appeals 3 June 2003.
Rowan County Department of Social Services, by Robert A. Lester and David B. Wilson, for petitioner appellee. Rebekah W. Davis for respondent appellant. Nancy Gaines as Guardian ad Litem for petitioner appellee.
Rowan County Nos. 00 J 194, 00 J 195.
Tambra Jo Beam Brown (respondent) appeals from an order terminating her parental rights to her daughter Cassidy Marie Brown (Cassidy), born 5 February 1988, and to her son Dylan Loren Taft Brown (Dylan), born 18 July 1991. For the reasons set forth herein, we affirm the trial court's order.
On or about 13 July 2000, the Rowan County Department of Social Services (DSS) assumed custody of Cassidy and Dylan after the mobile home in which they had been living with respondent was destroyed by fire. Respondent was unemployed at the time. On 24 July 2000, respondent, who was represented by counsel, and DSS agreed to entry of a consent order whereby Cassidy and Dylan were adjudicated neglected and dependent juveniles within the meaning of N.C. Gen. Stat. § 7B-101 (2001). The consent order included the following pertinent findings of fact:
. . . .
2) [Respondent], mother of the juveniles, abuses prescription medications;
3) Due to her drug abuse, [respondent] has passed out with a lit cigarette in her hand;
4) Due to her drug abuse, [respondent] has passed out on numerous other occasions;
5) [Respondent] does not have a place for herself or her children to live because her trailer burnt [sic] down;
6) [Respondent] has exercised a general lack of care and supervision for her children;
7) The father of the juveniles is deceased;
. . . .
On 15 August 2000, respondent entered into a service plan with DSS whereby she agreed to obtain a substance abuse assessment and psychological evaluation; find and maintain stable housing and employment; and enter into a child support order. Respondent, who was incarcerated from October 2000 until February 2001, and again from September 2001 until February 2002 on larceny and shoplifting charges, failed to comply with the service plan to the extent necessary to regain custody of Cassidy and Dylan. In the meantime, DSS placed Cassidy in foster care with a former neighbor family, the Proctors, and Dylan was placed in a children's home. On or about 23 July 2001, the permanent plan for Cassidy and Dylan was changed to termination of respondent's parental rights.
On 1 August 2001, after the juveniles had been in custody of DSS for just over one year, DSS filed a petition to terminate respondent's parental rights to Cassidy and Dylan. The trial court reviewed the matter on or about 15 October 2001 and found that because respondent had failed to make any substantial progress towards reunification with her children, it was in the juveniles' best interest for the permanent plan to remain termination of parental rights.
A hearing on DSS' petition for termination of parental rights was held on 28 January 2002. Respondent was present and represented by counsel. At the hearing, Lasheka White (White), Cassidy and Dylan's foster care social worker with DSS, testified that respondent had failed to enter a child support order or pay any portion of the cost of care for Cassidy and Dylan in the eighteen months since DSS assumed custody of the juveniles, although respondent did sometimes bring clothing to the children during her visits. White further testified that respondent did not comply with the service plan in that she only worked sporadically and was unable to maintain employment; she completed only the first half of her psychological evaluation and did not return for her appointment to complete the second half; and other than completing the DART program while incarcerated, she did not seek treatment for her substance abuse or participate in the DART aftercare program. White testified that respondent tested positive for a prescription drug following a random drug screen on 27 April 2001, that she had tested negative on a previous occasion, and that her opportunities to administer further drug screens were limited by respondent's frequent incarceration. White testified that respondent attended fifteen of the thirty scheduled visitations with Cassidy and Dylan, with three "no-shows" and the balance of the missed visitations due to respondent's incarceration. White testified that she visited the trailer where respondent was living in August 2001 and found it to be an unsuitable home for the juveniles in that it lacked running water, electricity, and bedding. White also testified that Cassidy and Dylan were doing well in their respective placements with the Proctor family and at the Nazareth Children's home, that both were doing well in school, and that the Proctors were interested in adopting both Cassidy and Dylan.
Respondent also testified at the hearing, stating that she has not entered a child support order or paid any portion of the cost of care for Cassidy and Dylan because she "wasn't never [sic] told to go talk to nobody" and that "nobody's never [sic] referred me to a child support agent." Respondent was incarcerated at the time of the hearing but testified that she expected to be released within two weeks. Respondent testified that she planned to live in a trailer on her father's land after her release; she stated that while the trailer currently had no electricity or running water, she planned to have those utilities connected. Respondent testified that she intended to use "vocational rehab" to find a job upon her release, and that she would be better able to maintain employment now because she had undergone surgery to correct a knee problem. Respondent acknowledged that her "main problem" was her abuse of prescription drugs and she stated that she "feel[s] like [she is] now, finally" dealing with that problem.
Perry DeWayne Proctor (Proctor), Cassidy's foster father, testified that he and his wife want to adopt Cassidy and Dylan. Proctor testified that he and his wife live in a five-bedroom house and that they have three children at home, two boys and a girl ages fourteen, twelve and eleven. Proctor testified that he and his wife are both employed and that one or the other is generally at home when the children return from school. Proctor testified that Cassidy is doing well living in their home, and that Dylan's visits, including a weeklong stay around Christmas, have gone well. Richard Alden Beam (Beam), respondent's father, testified that he has maintained contact with Cassidy and Dylan since DSS assumed their custody, as well as with respondent during her most recent incarceration. Beam testified that he "would like to see [respondent] have [Cassidy and Dylan] back if possible," but that respondent first "needs to show the Court that . . . she's going to straighten her life up" by "[g]etting off of the drugs and maintaining a home for the children, a good environment, not with some of the people that she associated with before."
Based on the foregoing evidence, on 5 March 2002 the trial court entered an order terminating respondent's parental rights to Cassidy and Dylan. The trial court made the following pertinent findings of fact, by clear, cogent and convincing evidence:
4. . . . on July 24, 2000, by Consent, the juveniles were adjudicated to be neglected and dependent juveniles within the meaning of G.S. 7B-101(9)(15) on the part of [respondent].
5. [Respondent] has willfully left the juveniles 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 within 12 months in correcting those conditions which led to the removal of the juveniles in that: both children were in the custody of [DSS] for twelve months as of the time of the filing of the Petition and have been in the custody of DSS [for] eighteen months at the time of the hearing.
6. A service plan was entered between [respondent] and the [DSS] . . . [Respondent] has not fully complied with [the service plan, as follows]:
a. Employment: [Respondent] has maintained sporadic employment but has been incarcerated for much of the period that her children have been in custody.
b. Psychological [E]valuation: [Respondent] completed only the first half of an evaluation.
c. Child Support: [Respondent] never entered a Child Support Order.
d. Seek substance abuse treatment: [Respondent] completed the DART program in the Department of Corrections in February 2001. She did not participate in any aftercare program as was recommended by DART.
e. Visitation: [Respondent] visited the children only sporadically when she was not incarcerated.
f. Drug Screens: [Respondent] submitted to random drug screens and tested positive in April, 2001 for prescription medication.
g. Residence: [Respondent] has failed to maintain an appropriate residence. She continues to own a mobile home that has no electricity and no running water.
7. . . . [respondent], for a continuous period of six months next preceding the filing of the petition, has willfully failed for such period to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so.
8. LaSheka White, the Social Worker assigned to these children, summarized her testimony on [respondent] by saying, whether she is in jail or not she can't hold a job; she has not shown the ability to nurture her children, and she has an unsuitable home without water and electricity.
9. [Respondent] has a history of criminal activity and incarceration.
. . .
10. [Respondent's] father, Richard Beam, the maternal grandfather of [Cassidy and Dylan], describes his daughter as having a serious addiction to prescription drugs. The only serious treatment for her addiction comes involuntarily as a result of incarceration. . . .
. . . .
13. The Court reviewed this matter on October 15, 2001 . . . and the Court found that it was in the best interest of the juveniles for the permanent plan to remain termination of parental rights and adoption as [respondent] had failed to make any substantial progress during the ninety day period since the last review.
14. The Court takes judicial notice of all the Orders, attached Court Reports and attached documents as set forth in the Rowan County Juvenile Court proceedings bearing the File Number 00 J 194 195 and all of the findings of facts, . . . are herein adopted by this Court as findings of facts in this proceeding and incorporated herein by reference . . . as if set forth herein in full.
Based on the above-stated findings, the trial court entered the following conclusion of law:
. . . .
2. That pursuant to G.S. 7B-1111 sufficient grounds exist to terminate the parental rights of [respondent], namely G.S. 7B-1111[(a)] (1)[,] (2) [and] (3).
After reaching this conclusion, the order indicates that the trial court "conduct[ed] a dispositional hearing on the issue of whether it is in the minor children's best interest for the parental rights of the Respondent to be terminated," and that the trial court made the following additional findings of fact:
. . . .
3. The children are in need of a permanent plan of care at the earliest possible age, and this can be accomplished only by the severing of the relationship between the juvenile[s] and [respondent] by termination of the parental rights of the respondent.
4. The oldest of the two children in these actions[,] . . . Cassidy[,] is presently in the physical custody of the Proctor foster home and Mr. and Mrs. Perry Proctor have both expressed a desire to adopt. Cassidy has expressed both to her DSS social worker and Guardian ad Litem that she [does] not wish to return to [respondent's] home and wants to be adopted by the Proctors. Dylan . . . is presently in the physical custody of the Nazareth Children's Home in Rowan County. . . . Dylan has expressed his desire to live with his sister Cassidy at the Proctor's home, and the Proctors indicate their willingness to keep Cassidy and Dylan together.
5. Both [DSS] and the Guardian ad Litem for the children recommend the termination of [respondent's] parental rights.
Based on the foregoing findings, the trial court further concluded that "the grounds for termination exist and it is in the best interest of the minor children, . . . for the parental rights of [respondent] to be terminated and for [DSS] to begin the adoption process in hopes that . . . Mr. and Mrs. Perry Proctor, can adopt Cassidy and Dylan." Respondent timely filed notice of appeal to this Court on 15 March 2002. Respondent presents four assignments of error on appeal, asserting (1) the trial court erred in concluding respondent willfully failed to pay a reasonable portion of the costs of care for her children, because the findings of fact do not support this conclusion and because respondent was physically unable to make such payments; (2) the evidence and findings of fact were insufficient to support the trial court's conclusion that respondent neglected her children; (3) the evidence and findings of fact were insufficient to support the trial court's conclusion that respondent willfully left her children in foster care for more than twelve months without making reasonable progress; and (4) the trial court erred in concluding that the termination of respondent's parental rights was in her children's best interests. For the reasons stated herein, we affirm the trial court.
A proceeding for termination of parental rights involves two phases: (1) the adjudicatory phase, governed by section 7B-1109, and (2) the dispositional phase, governed by section 7B-1110. See N.C. Gen. Stat. §§ 7B-1109, 7B-1110 (2001); In re Huff, 140 N.C. App. 288, 290, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9-10 (2001). In the adjudication phase, the petitioner must prove by "clear, cogent and convincing evidence" the existence of one or more of the statutory grounds for termination of parental rights set forth in section 7B-1111. N.C. Gen. Stat. § 7B-1109(e) and (f) (2001); In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). The clear, cogent and convincing evidentiary standard is a more rigorous standard than the preponderance of the evidence standard, but not as rigorous as the proof beyond a reasonable doubt requirement. See Montgomery at 109-10, 316 S.E.2d at 252. The trial court may properly terminate parental rights on the basis of several different grounds, and "[a] finding of any one of the . . . separately enumerated grounds is sufficient to support a termination." In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). In a proceeding to terminate parental rights, this Court "should affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law." In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).
In the case sub judice, the trial court concluded grounds existed to terminate respondent's parental rights under section 7B-1111(a)(2), which provides that parental rights may be terminated upon a finding that "[t]he parent has willfully left the juvenile 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 has been made in correcting those conditions which led to the removal of the juvenile." N.C. Gen. Stat. § 7B-1111(a)(2) (2001). Willfulness under this section means something less than willful abandonment, and does not require a finding of fault by the parent. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). Willfulness may be found where a parent has made some attempt to regain custody of the child but has failed to exhibit "reasonable progress or a positive response toward the diligent efforts of DSS." Id. at 440, 473 S.E.2d at 398. "[A] respondent's incarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care." In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987). In this case, it is undisputed that both Cassidy and Dylan had been left in foster care or placement outside the home for approximately eighteen months at the time of the termination hearing. Respondent contends the trial court's conclusion that she willfully left the juveniles in DSS custody during this period without showing reasonable progress in correcting the conditions which led to the juveniles' removal is not supported by sufficient evidence or findings of fact. After a careful review of the record, we find this assignment of error to be without merit.
The record shows that Cassidy and Dylan were adjudicated to be neglected and dependent juveniles by consent order entered 24 July 2000, less than two weeks after DSS assumed their custody. According to the consent order's findings of fact, which were incorporated by reference into the termination order, respondent acknowledged at that time abusing prescription drugs which caused her to pass out under circumstances potentially injurious to the juveniles, and having no place for herself or her children to live. Social worker White testified that respondent and DSS shortly thereafter agreed to a service plan whereby respondent agreed that to be considered for reunification, she would maintain stable employment and a suitable residence, obtain substance abuse and psychological evaluations, and enter a child support order. In the termination order's finding of fact number six, the trial court found that since agreeing to the service plan, respondent had (1) been only sporadically employed; (2) completed only half of a psychological evaluation; (3) never entered a child support order; (4) failed to participate in the DART aftercare program or any other substance-abuse treatment program outside of incarceration; (5) visited the juveniles sporadically; (6) tested positive once for a prescription medication; and (7) failed to maintain an appropriate residence, currently owning a mobile home with no electricity or running water. The trial court also found that respondent was incarcerated for approximately nine of the eighteen months Cassidy and Dylan were placed outside the home, and that respondent was incarcerated at the time of the termination hearing. The trial court's findings were supported by testimony at the termination hearing from White, respondent's father, Beam, and respondent herself. While respondent testified that she completed the DART program during her most recent incarceration, that she "feel[s] like [she is] now, finally" dealing with her substance abuse, and that she plans to get a job and connect the utilities on her mobile home after her release from the Department of Corrections, we conclude that the foregoing constitutes clear, cogent, and convincing evidence that respondent has failed to show reasonable progress or a positive response to the diligent efforts of DSS. See Oghenekevebe, 123 N.C. App. at 440, 473 S.E.2d at 398 (finding of willfulness not precluded simply because parent has made some efforts to regain custody); In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995) ("[e]xtremely limited progress is not reasonable progress not only must positive efforts be made towards improving the situation, but . . . these efforts [must be] obtaining or have obtained positive results.")
We hold that the evidence is sufficient to support the trial court's findings of fact, and that these findings of fact are sufficient to support its conclusion that respondent willfully left Cassidy and Dylan in DSS custody during this period without showing reasonable progress in correcting the conditions which led to the juveniles' removal from her custody. Respondent also challenges the trial court's conclusions that she willfully failed to pay a reasonable portion of the cost of her children's care and that she neglected her children. However, "[i]n light of our holding that the trial court did not err in finding that grounds exist to terminate respondent's parental rights under [N.C. Gen. Stat. § 7B-1111(a)(2)], we need not discuss the remaining . . . grounds for termination asserted by petitioner." In re Brim, 139 N.C. App. 733, 743, 535 S.E.2d 367, 373 (2000).
By her final assignment of error, respondent contends the trial court abused its discretion in concluding that it was in the best interests of Cassidy and Dylan to terminate respondent's parental rights. We disagree.
"Once the court has determined that grounds for terminating parental rights are present, the court then `moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights.'" In re Leftwich, 135 N.C. App. 67, 71, 518 S.E.2d 799, 802 (1999) (quoting In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 615 (1997)). Upon finding adequate grounds for termination of parental rights, the petitioner and respondent may each offer relevant evidence as to the child's best interests. In re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86 (2002). "Such evidence may therefore include facts or circumstances demonstrating either: (1) the reasonable progress of the parent, or (2) the parent's lack of reasonable progress that occurred before or after the twelve-month period leading up to the filing of the petition for termination of parental rights." Id. at 76, 565 S.E.2d at 86-87. We review the trial court's decision to terminate parental rights on an abuse of discretion standard. See In re Brim, 139 N.C. App. at 745, 535 S.E.2d at 374; see also In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).
Here, the evidence supports a finding and conclusion that respondent willfully left Cassidy and Dylan in foster care or placement outside the home for more than twelve months without showing reasonable progress towards correcting the conditions which led to the juveniles' removal from her custody. Social worker White testified that Cassidy and Dylan are doing well in their respective placements, Cassidy with the Proctors and Dylan at the Nazareth Children's Home, and that both are doing well in school. Moreover, Perry Proctor testified that he and his wife want to adopt Cassidy and Dylan. Proctor testified that Cassidy and Dylan get along well with their other children, and Proctor's testimony depicted a stable home environment with adequate support and supervision. Respondent's father, Beam, testified that respondent still needs to deal with her substance abuse, maintain a suitable home, and "not [associate] with some of the people that she associated with" before the juveniles should be returned to respondent's custody. Based on the record, we cannot say that the trial court abused its discretion in finding and concluding it was in the best interests of Cassidy and Dylan to terminate respondent's parental rights. This assignment of error is overruled.
We hold that the trial court did not err in terminating respondent's parental rights to Cassidy and Dylan.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).