Opinion
No. COA12–39.
2012-06-5
In the Matter of H.N.
Durham County Department of Social Services, by Assistant County Attorney Bettyna Belly, for Petitioner–Appellee. Assistant Appellate Defender Joyce L. Terres, for Respondent–Appellant.
Appeal by Respondent from order entered 19 October 2011 by Judge Brian C. Wilks in Durham County District Court. Heard in the Court of Appeals 2 May 2012. Durham County Department of Social Services, by Assistant County Attorney Bettyna Belly, for Petitioner–Appellee. Assistant Appellate Defender Joyce L. Terres, for Respondent–Appellant.
Pamela Newell for the Guardian ad Litem.
BEASLEY, Judge.
Respondent-mother (“Respondent”) appeals from an order terminating her parental rights to Hannah . We affirm.
A pseudonym was used to protect the juvenile's identity.
The Durham County Department of Social Services (“Petitioner”) filed a petition and was awarded custody while Respondent was receiving in-patient psychiatric care at the University of North Carolina Hospital. Because neither Respondent nor Hannah's father was able to care for her due to their respective mental illnesses and no alternative child care placement was available, the infant Hannah was adjudicated dependent on 3 February 2010.
On 25 May 2011, Petitioner filed a motion to terminate the parental rights of Hannah's parents on grounds: (1) her parents willfully left the child in foster care for more than twelve months without demonstrating that reasonable progress had been made in correcting the conditions which led to the removal of the child; (2) the parental rights of each parent had been involuntarily terminated with respect to other children and each parent lacks the ability or willingness to establish a safe home for the child; and (3) each parent is incapable of providing for the proper care and supervision of the child such that the child is a dependent juvenile and the incapability will continue for the foreseeable future. As additional grounds for termination of Father's rights, Petitioner alleged that Father neglected and abandoned the child. The trial court conducted a hearing upon the motion on 23 August 2011 and on 19 October 2011 filed an order terminating the parental rights of Respondent on grounds (1) and (2) listed above. The trial court also terminated the Father's parental rights on all of the alleged grounds. Father did not appeal.
Respondent contends the trial court erred by concluding (1) she left the child in foster care for more than twelve months without showing that reasonable progress had been made in correcting the conditions which led to the removal of the child; (2) Respondent's parental rights to another child have been involuntarily terminated and she lacks an ability or willingness to establish a safe home; and (3) it is in the child's best interest that Respondent's parental rights are terminated. We affirm.
In the adjudicatory stage of a proceeding to terminate parental rights, the burden is on the petitioner to prove by clear, cogent and convincing evidence that at least one ground for termination exists. N.C. Gen.Stat. § 7B–1109(f) (2011). The appellate court reviews the trial court's adjudication order to determine whether the findings of fact are supported by competent evidence and whether the findings of fact support the conclusions of law. In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6 (2004). Our review of a conclusion of law is de novo. In re J.S.L., 177 N.C.App. 151, 154, 628 S.E.2d 387, 389 (2006). After adjudicating the existence of a ground to terminate parental rights, the trial court then determines whether terminating the parent's rights is in the juvenile's best interest. N.C. Gen.Stat. § 7B–1110(a) (2011). The court's determination of the child's best interest is discretionary and is reviewed under an abuse of discretion standard. In re J.B., 172 N.C.App. 1, 24, 616 S.E.2d 264, 278 (2005).
To terminate parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) (2011), a petitioner must show by clear and convincing evidence that the parent (1) willfully left the child in placement outside the home for more than twelve months, and (2) as of the time of the termination hearing, failed to make reasonable progress under the circumstances to correct the conditions that led to the child's removal. In re O.C., 171 N.C.App. 457, 464 65, 615 S.E.2d 391, 396 (2005). The trial court's order must contain adequate findings of fact as to whether (1) the parent acted willfully and (2) the parent made reasonable progress under the circumstances. In re C. C., 173 N.C.App. 375, 384, 618 S.E.2d 813, 819 (2005).
Respondent argues that neither the evidence nor findings of fact show that Respondent willfully left Hannah in foster care without making reasonable progress in correcting the conditions which led to her removal. She submits that the court did not make sufficient findings of fact to support its conclusion and that there is no compelling evidence to support the conclusion.
The trial court's findings of fact in a termination of parental rights order are binding “where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110–11, 316 S.E .2d 246, 252–53 (1984). Findings of fact are also binding if the appellant does not challenge them on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). “Voluntarily leaving a child in foster care for more than twelve months or a failure to be responsive to the efforts of DSS are sufficient grounds to find willfulness.” In re A.R.H.B., 186 N.C.App. 211, 221, 651 S.E.2d 247, 255 (2007) (citation omitted).
The trial court's findings show that Hannah was adjudicated dependent and removed from Respondent's custody because Respondent has schizophrenia and had been in psychiatric hospitalization for months prior to the birth of Hannah. During Hannah's approximate two years of life, Respondent had four additional psychiatric admissions. Hannah was in foster care for 22 months and during that time period, Respondent's paternity ability had not improved such that she was capable of having unsupervised visits or overnight visits. Her visits continued to be supervised and Respondent was “no closer to the child returning to her care than she was at the adjudication on January 14, 2010.” She cohabits with Hannah's father, who does not want to care for and be a parent to the child.
Respondent does not dispute that she has had four inpatient psychiatric hospitalizations after the child was removed from her custody, that she has been unable to have unsupervised visits, and that she and Hannah's father “are not on the same page” with regard to their desires to parent Hannah. These findings are therefore binding. In addition, Respondent testified that she had not taken any parenting classes except for a class she attended five years prior to the hearing.
The foregoing supports the trial court's finding that Respondent has not made any significant progress toward having Hannah returned to her care during the extended period Hannah has been in foster care. A parent's “prolonged inability to improve [the parent's] situation, despite some efforts in that direction, will support a finding of willfulness ‘regardless of [the parent's] good intentions' “ and will “support the trial court's finding of respondent's lack of progress during the year preceding the DSS petition to warrant termination of [the parent's] parental rights under section 7B–1111(a)(2).” In re B.S.D.S., 163 N.C.App. 540, 546, 594 S.E.2d 89, 93 (2004).
We therefore hold the trial court's findings are supported by evidence and that these findings support the court's conclusion that Respondent has not made reasonable progress in correcting the conditions which led to the child's removal. Because we uphold termination of rights on this ground, it is not necessary for us to review the other ground for termination of parental rights found by the trial court. In re P.L.P., 173 N.C.App. 1, 8, 618 S.E.2d 241, 246 (2005), aff'd per curiam, 360 N.C. 360, 625 S.E.2d 779 (2006).
We next address Respondent's contention that the trial court abused its discretion by concluding that it is in Hannah's best interest to terminate Respondent's parental rights. In deciding whether to terminate parental rights, the trial court is statutorily required to consider the juvenile's age, the likelihood of the juvenile's adoption, the role of termination in accomplishment of the juvenile's permanent plan, the bond between the juvenile and the parent, the quality of the relationship between the juvenile and a proposed adoptive parent, or any other relevant consideration. N.C. Gen.Stat. § 7B–1110(a) (2011). Respondent argues the trial court should have considered how termination of parental rights affected the permanent plan of reunification. She also argues the trial court should have given more weight to the bond she has with the child.
“A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). The trial court's findings of fact indicate that while Respondent and the toddler Hannah do have a bond, their “interaction is playing” whereas the bond between Hannah and her foster parents, who have adopted Hannah's older sibling and who desire to adopt Hannah, is a parent/child bond. Hannah and her foster parents have a strong attachment. Hannah has lived with the foster parents since the age of five months and Hannah is sad when a foster parent leaves the home. Hannah has a hearing impairment and the foster mother has learned sign language to communicate with Hannah. The foster parents also understand Hannah's nonverbal cues. The trial court further noted that the concurrent plan was adoption and adoption was likely.
We conclude the trial court did not abuse its discretion in terminating Respondent's parental rights.
The order terminating Respondent's parental rights is
Affirmed. Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).