Opinion
No. COA04-1121
Filed 3 May 2005 This case not for publication
Appeal by respondent father from order entered 3 November 2003 by Judge Michael R. Morgan in Wake County District Court. Heard in the Court of Appeals 9 March 2005.
Corinne G. Russell and Juanita B. Twyford, for petitioner Wake County Department of Human Services. James P. Hill, Jr., for respondent father. Richard Crouthamel, for respondent mother. Holtkamp Law Firm, by Lynne M. Holtkamp and Gregory Rampage, for the Guardian ad Litem.
Wake County 03 J 71.
Respondent-father (respondent) appeals from an order terminating his parental rights in the minor child E.L.L. We affirm.
The relevant evidence presented at trial may be summarized as follows: The trial court took judicial notice of juvenile file #01 J 738 "as well as the judicial orders contained in that file." Both of the Wake County Human Services child protective caseworkers assigned to E.L.L. since she first came into care testified. Jackie Hall was the caseworker assigned to E.L.L from approximately January or February 2002 until April 2003. In April 2003, Susan Lee became E.L.L.'s caseworker. Jackie Hall testified to the initial circumstances creating E.L.L.'s need for placement and to E.L.L.'s history in foster care from December 2001 until April 2003. Susan Lee testified to E.L.L.'s subsequent history in care from April 2003 until the termination of parental rights hearing in August and October 2003.
Jackie Hall testified that on 19 December 2001, a Child Protective Services report was received by Wake County Human Services that E.L.L. "was in a day care without anyone to pick her up [.]" E.L.L. was two and one half years old. On that day, E.L.L.'s mother "had made statements regarding her intention to harm herself and the child [and] was involuntarily committed for mental health services[.]" She was admitted to Wake Medical Center. A domestic violence protective order, entered 6 August 2001, was in effect at the time against respondent and Wake County Human Services could not determine if respondent was authorized to pick E.L.L. up from her day care center. At the time the minor child came into care, she was residing in the home with both her mother and respondent. Wake County Human Services assumed custody of E.L.L. and she remained in nonsecure custody until the adjudication and disposition of her case 4 March 2002.
On 4 March 2002, the trial court entered an order adjudicating E.L.L. an abused, neglected and dependent juvenile.
During the time that Wake County Human Services was working towards family reunification, E.L.L. was placed with her maternal grandparents. She remained in the home of her maternal grandparents from February, 2002 to February, 2003. The maternal grandparents were able to care for E.L.L. on a temporary basis, but they were not in a position to care for E.L.L. on a long term, permanent basis. Once the planning goal was changed to adoption, E.L.L. was removed from her grandparents' home. On 1 February 2003 E.L.L. was placed in the home of her first foster mother. E.L.L.'s foster mother had maintained regular contact with her while she was in her grandparents' home and had served as E.L.L.'s respite care provider.
At the time of the termination hearing, E.L.L. was in the home of her original foster mother. Her foster mother is a "foster-to-adopt" foster parent. She is committed to caring for E.L.L. long term and would like to adopt her if E.L.L. is available for adoption.
On 12 February 2002 respondent signed a case plan and visitation plan with the agency. Both caseworkers testified that respondent did not comply with either the court's order of 4 March 2002 or with the requirements of the Wake County Human Services case plan and visitation plan. Respondent did not pay any child support for the support of the minor child while she was in care. Jackie Hall testified further that respondent failed to comply with the ordered psychological evaluation, with completing the domestic violence program through DOSE, or with completing the court ordered anger management classes. Respondent also did not maintain housing or stable employment. Respondent did not provide his address as required by the court order, complete parenting classes, or comply with the domestic violence protective order. On 19 March 2002 respondent called Ms. Hall and told her he was in jail because the mother "had entrapped him" and "made him shoot at her boyfriend by telling him the boyfriend had molested [E.L.L.]." Respondent requested visitation and was told by Ms. Hall that he would have to meet with her and her supervisor first because he had violated the court order. Respondent called back several times over the next few days requesting visitation and stating he was upset over the placement of the child with the maternal grandparents. A visit was arranged for 3 April 2002 but was not held due to the child's severe emotional reaction to the prospect of the visit. Ms. Hall met with respondent on 3 April 2002 to explain why the visit had been canceled. Respondent became hostile and threatening to the caseworkers, and was asked to leave the Wake County Human Services building by security personnel. Respondent's last visit with E.L.L. was in February 2002; from April 2002 until the date of the termination of parental rights hearing in October 2003, respondent had no authorized contact with E.L.L.
Wake County Human Services caseworker Susan Lee assumed responsibility for E.L.L.'s case in April of 2003. Lee testified she had not received any documentation demonstrating respondent's compliance with the Wake County Human Services case plan.
Respondent testified during the adjudication and best interest phases of the termination of parental rights hearing. He was currently employed in the fragrance industry and is "an executive distributor . . . with the Iceberg fragrance line." He had received a psychological evaluation which was "favorable." He had attended a series of anger management classes and had completed all but one class for the course. He admitted he was the father of E.L.L. Respondent testified he was currently on probation for two misdemeanors, one on "a matter" with E.L.L.'s mother and one for "an altercation with an individual." Respondent also admitted that he had been convicted of "some drug charges in New Jersey" around 1995, and that he still owed money toward the payment of fines as a condition of his probation.
Respondent testified he had not paid any child support and had not completed the DOSE program. Respondent testified, "I want certain services, I've got to pay. . . . So I was just very, very focused financially on getting more stable, getting more structure, to have that money to fight as hard as I want to fight." Respondent testified that he wanted the court to consider his mother, Sharon L., as a placement option for E.L.L.
At the conclusion of the hearing, the trial court found that there were sufficient grounds to terminate respondent's parental rights and that it was in the best interests of E.L.L. that respondent's rights be terminated. The trial court entered an order terminating respondent's rights 3 November 2003. From this order, respondent appeals.
On appeal, respondent argues that (1) the trial court erred by failing to appoint a guardian ad litem for the minor child E.L.L. to represent E.L.L.'s best interests pursuant to N.C.G.S. § 7B-1108, (2) that there was insufficient evidence to support the trial court's findings of fact and conclusions of law terminating respondent's parental rights, and (3) the trial court abused its discretion by finding that it was in the best interests of E.L.L. to terminate respondent's parental rights. For the reasons that follow, we disagree.
Respondent first argues that the trial court erred by failing to appoint a guardian ad litem to represent the best interests of the minor child E.L.L. pursuant to N.C.G.S. § 7B-1108. We disagree.
According to N.C.G.S. § 7B-601(a), a guardian ad litem must be appointed for every juvenile concerning whom a petition is filed alleging that the juvenile is neglected or abused. See N.C.G.S. § 7B-601(a) (2003). G.S. § 7B-601(a) provides in pertinent part:
When in a petition a juvenile is alleged to be abused or neglected, the court shall appoint a guardian ad litem to represent the juvenile. . . . The juvenile is a party in all actions under this Subchapter. The guardian ad litem and attorney advocate have standing to represent the juvenile in all actions under this Subchapter where they have been appointed. . . . The appointment shall terminate when the permanent plan has been achieved for the juvenile and approved by the court. . . . In every case where a nonattorney is appointed as a guardian ad litem, an attorney shall be appointed in the case in order to assure protection of the juvenile's legal rights throughout the proceeding.
N.C.G.S. § 7B-1108 (2003) provides in pertinent part:
(a) Any respondent may file a written answer to the petition or written response to the motion. The answer or response shall admit or deny the allegations of the petition or motion and shall set forth the name and address of the answering respondent or the respondent's attorney.
(b) If an answer or response denies any material allegation of the petition or motion, the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile, unless . . . a guardian ad litem has already been appointed pursuant to G.S. 7B-601. . . .
. . . .
(d) If a guardian ad litem has previously been appointed for the juvenile under G.S. 7B-601, and the appointment of a guardian ad litem could also be made under this section, the guardian ad litem appointed under G.S. 7B-601, and any attorney appointed to assist that guardian, shall also represent the juvenile in all proceedings under this Article, and shall have the duties and payment of a guardian ad litem appointed under this section, unless the court determines that the best interests of the juvenile require otherwise.
(emphasis added.)
In its order terminating respondent's parental rights, the trial court took judicial notice of juvenile file #01 J 738 and found as a fact that Heather Harreld was the appointed guardian ad litem for E.L.L. in that file. As the orders in 01 J 738 reveal, Harreld was appointed by the court and served as guardian ad litem for E.L.L. during the court events associated with the abuse, neglect and dependency adjudication order of 4 March 2002. The record is replete with evidence that Harreld served as the guardian ad litem for the child throughout the adjudication proceedings in 2002 and, later, during the termination of parental rights hearing that is the subject of this appeal. Furthermore, respondent's argument that a guardian ad litem was not properly appointed lacks merit because he made the contrary contention to the trial court. Here, respondent-mother filed a written answer which denied the material allegations of the petition to terminate parental rights. In open court, respondent-father orally adopted the mother's written answer, including paragraphs 1 through 9, 10, 11, 12, 13, and 14. Paragraph 9 of mother's answer admitted corresponding paragraph 9 of the petition, which alleged that Harreld was appointed guardian ad litem for the minor child in juvenile file #01 J 738. Respondent thus admitted Harreld was the appointed guardian ad litem for E.L.L.
Because Harreld had been appointed E.L.L.'s guardian ad litem pursuant to G.S. § 7B-601, the trial court had no need to enter a separate order reappointing her to represent E.L.L. in the termination proceedings. See G.S. § 7B-1108(b). Therefore, we hold that a guardian ad litem had been properly appointed to represent E.L.L.'s best interests at the termination proceeding in accordance with G.S. § 7B-1108. This assignment of error is overruled.
Respondent next argues that there was insufficient evidence to support the trial court's findings of fact and conclusions of law that respondent's parental rights should be terminated. For the reasons which follow, we disagree.
"An order terminating parental rights will be upheld if there is clear, cogent, and convincing evidence to support the findings of fact and those findings of fact support the trial court's conclusions of law." In re Clark, 159 N.C. App.75, 83, 582 S.E.2d 657, 662 (2003) (citation omitted). "Findings of fact to which a respondent did not object are conclusive on appeal. . . . A finding of any one of the enumerated grounds for termination of parental rights under N.C.G.S. § 7B-1111 is sufficient to support a termination." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (citations omitted).
Respondent's assignments of error challenge only the general sufficiency of the evidence before the trial court, and do not assign error to any specific findings of fact.
The scope of appellate review is limited to issues presented by assignments of error in the record on appeal and, if one of those issues includes a broadside exception, it "does not present for review the sufficiency of the evidence to support the entire body of the findings of fact.". . . Therefore, since respondent only brought forth a broadside exception in the record, our review is limited to whether the facts support the court's judgment.
In re Dhermy, 161 N.C. App. 424, 430, 588 S.E.2d 555, 559 (2003) (quoting In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001)). We therefore treat the trial court's findings of fact as conclusive on appeal.
The trial court made the following pertinent findings of fact:
22. That the father did not pursue domestic violence counseling through DOSE, and he failed to address issues related to the detrimental effect of domestic violence on children. The father is currently on probation pursuant to convictions for assault and communicating threats. . . . Due to the father's denial of domestic violence in his relationship with the mother and his failure to demonstrate that he has successfully addressed issues related to domestic violence, there is a significant risk that the father will continue to engage in destructive relationships and this pattern of behavior places the child at substantial risk of abuse.
. . . .
24. That the child's father failed to maintain safe, stable housing adequate for himself and the child. . . .
25. That the child's father failed to maintain financial stability adequate for himself and the child. . . .
. . . .
27. That the child's father failed to attend parenting classes at SAFEchild or Wake County Human Services to address issues related to positive parenting of a preschool child. The father was provided with referrals to parenting classes, but he never enrolled in classes.
28. That the child's father failed to contact Child Support Enforcement to establish paternity and pay child support based upon his ability. Paternity remains unrecorded for the child. The father was angry that the child was placed with her maternal grandparents, and attempted to justify his failure to pay child support based upon his disagreement with the placement. Wake County Human Services and the child's maternal grandparents have been financially responsible for the child's care since December 2001. The child's father is able-bodied and capable of paying some amount greater than zero for the support of the child.
. . . .
30. That the child's father failed to have regular, supervised visitation with the child in accordance with a visitation plan. . . . [T]he father has had no authorized contact with the child since February 2002.
31. That the circumstances of the mother and father are such that the mother and father did not make reasonable progress toward correcting the conditions which led to the removal of the child prior to the filing of the Petition for Termination of Parental Rights.
32. That there are facts sufficient to warrant a determination that grounds exist for the termination of parental rights, said grounds as follows:
. . . .
f. That the child has been placed in the custody of the Petitioner and the father, for a continuous period of six months next preceding the filing of the Petition, willfully failed for such period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so.
. . . .
34. That the conduct of the mother and father has been such as to demonstrate that they will not promote the healthy and orderly, physical and emotional well being of the child.
35. That the minor child has special needs. The child has been diagnosed with Post Traumatic Stress Disorder, and managing her behaviors can be a challenge. . . .
36. That the minor child is in need of stability. The child was removed from her home in December 2001, and placed in foster care. The child then went to live with her maternal grandparents in March 2002. The maternal grandparents were not in a position to provide a permanent plan for the child when the mother chose not to move into their home to assist in the care of the child. The child was angry and confused when she was once again placed in foster care in November 2002. The foster parent has demonstrated a commitment to provide the child with the requisite stability and nurturing, and is willing to provide a permanent home for the child.
. . . .
38. That the father has been unwilling to demonstrate that he is in a position to provide proper care and supervision for the child in a safe home as he has failed to demonstrate a commitment to reunification with the child. The father set his priorities, and chose to chase his dreams of fame and fortune. In his words, the father said he, "felt it best to get his money together first and then look to the child, but sometimes things don't happen as fast as you want." Two and one-half years later, the father is still trying to get himself together.
39. That the minor child is in need of a permanent plan of care at the earliest possible age which can be obtained only by the severing of the relationship between the child and her mother and father by termination of the parental rights of the mother and father.
40. That it is in the best interests of the child that the parental rights of the mother and father be terminated.
The trial court terminated respondent's parental rights based, in part, upon the ground set forth in N.C.G.S. § 7B-1111(a)(3) (2003):
The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.
The trial court determined that the father was able-bodied, able to pay "some amount greater than zero" towards the support of the child, and had willfully failed to pay child support. We hold that these findings and the others set forth supra support its conclusion that grounds to terminate existed pursuant to G.S. § 7B-1111(a)(3).
Because grounds for termination have been established under G.S. § 7B-1111(a)(3), we need not address respondent's further arguments regarding the other grounds relied upon by the trial court under G.S. § 7B-1111(a)(1), (2) and (5). See In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986) (once one statutory ground for termination is established, this Court need not address assignments of error challenging other grounds).
This assignment of error is overruled.
Respondent's final argument is that the trial court abused its discretion by concluding that it was in the best interests of E.L.L. to terminate respondent's parental rights. Respondent argues generally that the trial court abused its discretion and, more specifically, that because his mother was a potential caretaker for E.L.L., the child should have been placed with her and the petition for termination denied. We disagree.
Once grounds for termination of parental rights have been established, terminating a parent's rights is within the trial court's discretion. See In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174 (2001).
The trial court observed that respondent had not addressed issues of violence and anger management; that he had no stable home or finances; that the child had special needs and was in a stable pre-adoptive foster home placement; and that the child had been placed outside of the home since 19 December 2001 and needed a permanent home. As these circumstances and those established by the balance of the record demonstrate, the trial court did not abuse its discretion by concluding it was in the best interests of E.L.L. that respondent's parental rights be terminated. This assignment of error is overruled.
Affirmed.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).