Opinion
No. COA10-919
Filed 15 March 2011 This case not for publication
Appeal by respondent from judgment entered 6 May 2010 by Judge Dennis J. Redwing in Buncombe County District Court. Heard in the Court of Appeals 2 February 2011.
Charlotte W. Nallan for petitioner-appellee. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-appellant.
Buncombe County No. 08 JT 89.
Respondent mother appeals from a judgment of the district court terminating her parental rights as to her daughter, D.N.W. ("Diana"). We hold that the trial court's findings of fact support its conclusion of law that grounds existed to terminate respondent mother's parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) (2009) (willfully leaving juvenile in foster care or placement outside home for more than 12 months without reasonable progress in correcting conditions that led to removal of juvenile). Because respondent mother has not further challenged the trial court's decision that termination is in Diana's best interests, we affirm.
The pseudonym "Diana" is used throughout this opinion to protect the minor's privacy and for ease of reading. Respondent father is not a party to this appeal. For that reason, the portions of the record relating to respondent father are not discussed in detail.
Facts
The Buncombe County Department of Social Services ("DSS") became involved with respondent mother's family prior to Diana's birth in February 2007. As a child, respondent mother had been subjected to physical abuse by her mother, "Ms. Wallace." Respondent mother was a minor when she gave birth to Diana and was living with her maternal grandmother, "Ms. Peterson," pursuant to a kinship agreement set up by DSS. Several other individuals lived in that home, including Ms. Peterson's boyfriend, an uncle, respondent mother's two brothers, and respondent mother's twin cousins.
The termination of parental rights ("TPR") judgment lists a date in July 2005 as Diana's birth date. This date appears to be in error based on multiple other references in the record to the February 2007 date.
Pseudonyms have also been used for Diana's family members to protect her privacy.
DSS had been involved with the family due to concerns about domestic violence and substance abuse. Accordingly, DSS developed multiple safety plans for respondent mother and Diana from September through December 2007. The terms of the safety plans required that Diana and respondent mother not be allowed alone with Ms. Wallace; that there be no verbal abuse toward respondent mother; and that there be no drugs in the home. The safety plans also specified who could and could not be alone with Diana.
Respondent mother reached the age of majority in January 2008. On 5 March 2008, DSS filed a juvenile petition alleging that Diana was neglected in that she did not receive proper care, supervision, or discipline from her parent, guardian, custodian, or caretaker and lived in an environment injurious to her welfare. The petition alleged that in February 2007, DSS had received reports that drugs were being sold out of Ms. Peterson's home, that there was activity in and out of the house at all hours of the night, and that the adults in the home were frequently yelling and fighting. Additionally, in the spring, respondent mother's brother became involved in a gang, had a gun, assaulted Ms. Peterson's boyfriend, and assaulted a police officer.
The petition also contained several allegations specific to respondent mother. DSS alleged that in August 2007, Ms. Peterson reported that respondent mother was sneaking out of the house and leaving Diana alone in respondent mother's bed. On 9 September 2007, DSS learned that Ms. Wallace and her girlfriend picked up Diana from day care on several occasions in violation of the safety plans. DSS also learned that respondent mother removed Diana from Ms. Peterson's home for three days without notifying Ms. Peterson. Respondent mother left Diana in the care of Ms. Wallace and her girlfriend. Finally, the petition alleged that respondent mother had been suspended from high school for fighting and was arrested as a result. Respondent mother attempted to transfer to another school, but was unable to do so due to excessive absences.
DSS did not seek custody of Diana at the time it filed the juvenile petition, but filed a motion for nonsecure custody on 30 June 2008 after discovering that respondent mother had moved out of Ms. Peterson's home with Diana. In the motion, DSS alleged that respondent mother had an outstanding warrant for her arrest, and her whereabouts were unknown. The trial court granted DSS nonsecure custody of Diana on 30 June 2008.
On the following day, 1 July 2008, a police officer and a DSS social worker went to respondent mother's apartment to attempt to locate Diana and take her into custody. Respondent mother refused to answer the door. When the police officer gained entry to the apartment, respondent mother, Diana, and a man known to be a gang member and drug dealer were inside. That man was alone with Diana in the upstairs bedroom.
In an order entered 7 October 2008, the trial court adjudicated Diana a neglected juvenile pursuant to N.C. Gen. Stat. § 7B-101(15) (2009). In support of this adjudication, the trial court made the following findings. Respondent mother had, on several occasions, left Diana in bed alone while she went out — she did not tell anyone she was leaving and did not make arrangements for Diana's care. At times, Ms. Peterson observed respondent mother high or intoxicated on an unknown substance. Respondent mother is depressed and has suicidal thoughts, has a flat affect, has issues with her temper, and has unresolved mental health issues, all of which contribute to an environment injurious to Diana. The trial court also made a finding regarding respondent mother and Diana being found at the apartment with the gang member and drug dealer, and the court noted that respondent mother took Diana there in intentional violation of the safety plan.
In the disposition portion of the order, the court maintained custody with DSS with a permanent plan of reunification with respondent parents. The court found that respondent mother had a strong bond with Diana, had attended a shared parent meeting with Diana's foster parents, and had regularly attended visits with Diana when she was first taken into DSS custody. Respondent mother, however, stopped attending visits, failed to schedule a substance abuse assessment, and failed to enter a court-ordered anger management program called Women at Risk.
Based in part on the recommendations of DSS and the guardian ad litem, the trial court ordered respondent mother to comply with the following directives:
5. That there shall be no contact between the minor child and [Ms. Wallace] until such time as [Ms. Wallace] presents herself to the court and proves she has completed mental health and substance abuse assessments and complied with all recommendations.
6. That there shall continue to be no contact between [Ms. Wallace's girlfriend] and the minor child.
7. That the minor child shall have no contact with known drug dealers and/or gang members.
8. That visits between the respondent mother and the minor child shall be on Thursdays at 4:00 p.m. If the respondent mother misses visits, the Child and Family Team shall have discretion to stop visits until this matter can be heard in court again.
9. That the respondent mother shall be enrolled in an education program or working full time. That if the respondent mother is enrolled in an education program, she shall work part time.
10. That the respondent mother shall complete a hair follicle substance use test and provide the results to [DSS].
11. That if the respondent mother's hair follicle test is positive, the respondent mother shall comply with substance abuse treatment, including SOAR Court.
12. That the respondent mother shall attend parenting classes deemed appropriate by [DSS].
13. That the respondent mother shall maintain suitable housing for her and the minor child.
14. That the respondent mother shall complete anger management classes.
15. That the respondent mother shall complete a psychological evaluation and comply with any and all recommendations.
The trial court held a permanency planning hearing on 16 October 2008. In a written order entered 3 December 2008, the court found that Diana was in foster care and that her needs were being met. Although respondent mother appeared to love Diana, she struggled with various issues including her unstable upbringing, immaturity, and substance abuse. She attended every visit with Diana and was appropriate and loving with her. She was enrolled full-time in high school, was taking childhood development classes, and said she had enrolled in anger management classes. She had not, however, completed the hair follicle test because she said she could not afford it. The court continued custody with DSS and the permanent plan remained reunification with respondent parents.
The trial court held another permanency planning hearing on 12 February 2009 and entered a corresponding order on 4 May 2009. In addition to making findings similar to those in previous orders, the court found that respondent mother's Intensive Family Visitation ("IFV") supervisor, Carolyn Downey, had noted that respondent mother seemed to struggle with learning how to say "no," and mean "no," when others disregarded what she said and overrode important decisions that could cause her to lose Diana permanently. Ms. Downey believed that although respondent mother loved Diana, she had no other support system. It appeared to Ms. Downey that respondent mother was being forced to choose between Diana and her family, "and this is something that no parenting class can address."
Further, respondent mother had not been compliant with court-ordered services such as anger management classes and had not obtained the hair follicle test. She had undergone a psychological evaluation with Dr. Barry Rand, who observed scars on her wrists where she attempted to cut them. He diagnosed her as suffering from major depression with psychotic features, post-traumatic stress disorder, generalized anxiety disorder, compulsive behavior, and prominent borderline personality disorder traits. At this time, the trial court continued custody of Diana with DSS and changed the permanent plan to reunification with respondent mother only.
Following the next permanency planning hearing on 14 July 2009, the trial court found that respondent mother reported that she started working at K-Mart on 1 June 2009 and was taking classes at a community college. Additionally, she reported that she was taking anger management classes, had participated in parenting classes, and was in counseling. She was not, however, attending the type of counseling recommended by her psychological evaluation. In addition, respondent mother still had not completed her substance abuse assessment or her hair follicle test. In an order entered 14 August 2009, the trial court continued custody with DSS and maintained the permanent plan of reunification with respondent mother, but suspended visitation until respondent mother completed the hair follicle test.
After the next permanency planning hearing on 15 September 2009, the court entered an order on 13 October 2009 finding that respondent mother had still not completed her hair follicle test, preventing the court from determining if she was using illegal substances; respondent mother was attending therapy, but not obtaining the services recommended in her psychological evaluation; respondent mother allegedly committed fraud on a food stamp application by claiming that Diana had been living with her; and respondent mother had been seen in the company of Ms. Wallace in violation of court orders. The court relieved DSS of further reunification efforts with respondent mother and changed the permanent plan for Diana to adoption.
On 13 November 2009, DSS filed a petition to terminate respondent mother's parental rights to Diana, alleging the following grounds: (1) neglect, N.C. Gen. Stat. § 7B-1111(a)(1); (2) willfully leaving the juvenile in foster care for more than 12 months without showing reasonable progress to correct the conditions that led to removal, N.C. Gen. Stat. § 7B-1111(a)(2); (3) willfully failing to pay a reasonable portion of the cost of care for the juvenile for a continuous period of six months next preceding the filing of the TPR petition, N.C. Gen. Stat. § 7B-1111(a)(3); and (4) dependency, N.C. Gen. Stat. § 7B-1111(a)(6). In the petition, DSS also sought to terminate the parental rights of Diana's putative father.
The TPR hearing was conducted over three days in March 2010. On 6 May 2010, the trial court entered a judgment terminating respondent mother's parental rights, finding that all four grounds for termination of her parental rights alleged by DSS existed and that it was in Diana's best interests to terminate respondent mother's parental rights. Respondent mother timely appealed to this Court.
Discussion
A termination of parental rights proceeding involves two separate phases: an adjudicatory stage and a dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, "the party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist." In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). This Court determines on appeal whether "the court's findings of fact are based upon clear, cogent and convincing evidence and [whether] the findings support the conclusions of law." In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996). Factual findings that are supported by the 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, 321 (1988). "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal." Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Respondent mother contends that the trial court erred in the adjudicatory stage by concluding that grounds existed to terminate her parental rights. We first address N.C. Gen. Stat. § 7B-1111(a)(2). Under § 7B-1111(a)(2), the trial court may terminate parental rights upon finding:
The 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. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
To terminate parental rights on the ground of § 7B-1111(a)(2), the trial court must make findings of fact addressing "willfulness" and lack of "reasonable progress under the circumstances" following the initial removal. In re Anderson, 151 N.C. App. 94, 99, 564 S.E.2d 599, 603 (2002). The word "willfulness" imports knowledge and a stubborn resistance, In re Matherly, 149 N.C. App. 452, 455, 562 S.E.2d 15, 18 (2002), and "is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort[,]" In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
In this case, the trial court noted in the TPR judgment that respondent mother had been "ordered, inter alia, to do the following in order to be reunited with the minor child: enroll in an education program or work full time, and if she is enrolled in an education program to work part time; complete a hair follicle substance use test and provide the results to [DSS]; if the hair follicle test is positive the respondent mother was to comply with substance abuse treatment including SOAR Court; attend parenting classes deemed appropriate by [DSS]; maintain suitable housing for her and the minor child; complete a psychological evaluation and comply with recommended treatment; and complete anger management classes." The trial court then went on to make a number of findings pertinent to respondent mother's lack of progress with respect to these requirements.
As to the education and work requirement, the court found that respondent mother had enrolled in school by 28 August 2008, as required, but that she left school in December 2008 because she had already missed 30 days of school. The court noted that she testified she left school because she was "`going to be removed anyway'" and she felt overwhelmed with her reunification requirements. She did not, however, notify her social worker or seek help from DSS. Although she obtained part-time employment from June through October 2009, she left that job to obtain a full-time job, which "quickly became part time employment."
With respect to the substance abuse testing requirement, the trial court found that throughout the IFV program, Ms. Downey had stressed to respondent mother that she needed to complete the hair follicle test. Although respondent mother knew that she should be obtaining a hair follicle test, knew the cost of the hair follicle test, and had the funds to pay for it once she became employed, she instead used those funds to buy property and drugs. Despite repeated reminders that she needed to complete the hair follicle test, she did not get the test until 14 September 2009, the day before the permanency planning hearing where the court terminated reunification efforts with her.
The trial court also made several findings regarding respondent mother's drug use and lack of truthfulness about her drug use. The hair follicle test that she took on 14 September 2009 was positive for cocaine. Respondent mother also testified, and the court found, that she began using ecstasy with cocaine or some derivative in July 2009, after she was sexually assaulted by a family member in April 2009. Respondent mother said that, at that point, she was tired of DSS and was no longer interested in reunifying with Diana. While she was participating in anger management classes and substance abuse services, she was using drugs at the same time that she was denying substance abuse to the Court, to DSS, and to everyone in the treatment process. She also denied using controlled substances from the 28 August 2008 hearing through the 15 September 2009 hearing. The court further found that respondent mother had not completed a substance abuse treatment program and that her testimony at the TPR hearing about her progress in substance abuse treatment was not truthful.
With respect to the psychological evaluation and treatment requirement, the trial court found that respondent mother had completed a psychological evaluation with Dr. Rand. The evaluation indicated, and respondent mother testified, that she has a history of self-inflicted injuries, including 18 visible scars on her arms and wrists, with the last episode of self-inflicted injuries occurring after Diana was born. Following the evaluation, Dr. Rand diagnosed respondent mother with major depression with psychotic features, post-traumatic stress disorder, generalized anxiety disorder, compulsive behavior, and prominent borderline personality disorder traits. Dr. Rand recommended that she have a psychotic consultation to assess use of medication for psychosis and depression, as well as anxiety and post-traumatic stress; that she participate in and complete Dialectical Behavior Therapy ("DBT"); and that she have a substance abuse evaluation. Respondent mother did not comply with any of these recommendations prior to the filing of the TPR petition. She began participating in the Women at Risk program on 7 December 2009 and in SOAR Court on 17 December 2009, but she never participated in DBT.
The trial court further found that Ms. Downey had determined that it was necessary for respondent mother to address her history of physical and sexual abuse in order to improve her mental health, which impacted her parenting skills. Although Ms. Downey referred respondent mother to counseling services designed to address that issue, and even offered to provide transportation to the sessions, respondent mother refused to participate. Moreover, the trial court found that respondent mother's testimony concerning her progress in anger management was not truthful and that she had not completed an anger management program as of the TPR hearing. The court found that respondent mother testified she had participated in therapy with Dr. Maggie Weshner since April 2009, attending therapy every other week, when in fact she had actually only seen Dr. Weshner three times — once in April 2009, once in June 2009, and once in February 2010. In addition, the trial court pointed out that while respondent mother did make some efforts to comply with the order arising out of the 28 August 2008 hearing, the majority of her efforts were only started in earnest after 15 September 2009, when the court ceased reunification efforts.
Finally, the trial court found that respondent mother was unable to provide a safe environment for Diana, as demonstrated by her inability to limit the number of family members who attended Diana's birthday party. Respondent mother was told that only five people approved by DSS could attend, but 15 family members still came. The court found that respondent mother was unable to place the best interest of Diana over her extended family.
In sum, these findings show that respondent mother failed to adhere to the court's requirement for school and work, failed to complete substance abuse treatment despite her cocaine and ecstasy use, and failed to comply with the recommendations of her psychological evaluation. She also turned down offers to assist her in obtaining counseling, chose to spend her money on property and drugs rather than spending it on the court-ordered hair follicle test, and lied about her progress at the TPR hearing. Finally, although respondent mother made some efforts toward fulfilling the court-ordered requirements, she did not make earnest efforts until after reunification efforts ceased.
We conclude that these findings sufficiently supported the trial court's conclusion that respondent mother willfully failed to make reasonable progress to correct the conditions that led to the removal of Diana from her custody. See In re O.C. O.B., 171 N.C. App. 457, 466-67, 615 S.E.2d 391, 396-97 (holding that trial court's findings that respondent did not make progress toward securing housing, completed only first session of GED program, made no progress on case plan goals of education and employment, failed repeatedly to address substance abuse issues, and never addressed issue of domestic violence supported N.C. Gen. Stat. § 7B-1111(a)(2) conclusion where conditions that led to removal were largely due to domestic violence and mother's substance abuse), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005); In re Becker, 111 N.C. App. 85, 95, 431 S.E.2d 820, 827 (1993) (upholding conclusion as to respondent's willful failure to make reasonable progress where "[t]he evidence show[ed] that the mother was aware of what she needed to do to regain custody of the children, but she nevertheless failed to improve her condition[]").
Respondent mother argues, however, that certain evidence and findings of fact show that she did make reasonable progress to correct the conditions that led to Diana's removal. It is well established that the fact that respondent mother made some efforts to correct the situation does not preclude a finding of willfulness. See In re S.N., X.Z., 194 N.C. App. 142, 149, 669 S.E.2d 55, 60 (2008) ("Although respondent made some attempts to correct the conditions which led to the removal of her children, she did not make any attempt to regain custody of her children until after she was in jeopardy of losing them, and termination of her parental rights was proper."), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009); In re Oghenekevebe, 123 N.C. App. 434, 437, 440, 473 S.E.2d 393, 397, 398 (1996) (when respondent failed to show any progress in her therapy until her parental rights were in jeopardy, holding that "willfulness is not precluded just because respondent has made some efforts to regain custody of the child").
We recognize that the trial court found respondent mother participated in IFV, had significant bonding with Diana, completed the psychological evaluation, and participated in SOAR Court and Women at Risk. Yet, in view of the other findings regarding her lack of progress, we cannot say that the court erred in concluding that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(2) to terminate respondent mother's parental rights. To the extent respondent mother argues that the evidence supported findings that she made reasonable progress, those arguments were for the trial court. So long as the trial court's findings of fact are supported by competent evidence and those findings support the conclusions of law, we must affirm regardless whether the evidence would also have supported alternative findings of fact.
Respondent mother also argues that the court's conclusion under N.C. Gen. Stat. § 7B-1111(a)(2) was not supported because the trial court failed to address whether her failure to make progress was related to poverty. We note that although respondent mother asserts that a trial court "should consider whether the tasks assigned to the parent were within her means to achieve and whether the tasks required financial or social resources beyond her means," the trial court did find that she had the money to pay for a hair follicle test, but she prioritized buying drugs and other things over obtaining the test. We further note that respondent mother does not argue in her brief that her failure to make progress was actually due to poverty.
In any event, we are not aware of any authority requiring the trial court to make a specific finding regarding a parent's poverty if the trial court does not find sufficient evidence that poverty contributed to the failure to make progress. See In re O.C. O.B., 171 N.C. App. at 464-65, 615 S.E.2d at 396 (explaining that N.C. Gen. Stat. § 7B-1111(a)(2) requires " two part analysis" — finding (1) that child has been willfully left by parent in foster care or placement outside home for over 12 months, and (2) that as of time of hearing, parent has not made reasonable progress under circumstances to correct conditions which led to removal of child (emphasis added)).
Because we hold that the trial court properly found a sufficient basis for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)(2), we need not address respondent mother's arguments as to § 7B-1111(a)(1), (3), or (6). See In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004) ("Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground . . . found by the trial court."). Since respondent mother has not challenged the dispositional ruling that termination of her parental rights was in the best interests of Diana, we affirm the trial court's judgment terminating respondent mother's parental rights.
Affirmed.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).