Opinion
No. COA12–51.
2012-06-5
In the Matter of M.Z.C., M.T.P.
New Hanover County Department of Social Services, by Regina Floyd–Davis for Petitioner–Appellee. Rebekah W. Davis for Respondent–Appellant Mother.
Appeal by Respondent from order entered 2 November 2011 by Judge J.H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 14 May 2012. New Hanover County Department of Social Services, by Regina Floyd–Davis for Petitioner–Appellee. Rebekah W. Davis for Respondent–Appellant Mother.
Pamela Newell for Guardian ad Litem.
BEASLEY, Judge.
Respondent appeals from the trial court's 2 November 2011 order terminating her parental rights to the juveniles M.Z.C. and M.T.P. We affirm.
To protect the privacy of the victims, their initials are used in this opinion.
The New Hanover County Department of Social Services (DSS) began working with Respondent to address her drug abuse issues in 2009. In March and May of 2010, Respondent tested positive for PCP. During the same time period, the minors' father (Father) and Respondent engaged in frequent acts of domestic violence. During a March 2010 confrontation, Father struck Respondent while the minors were present and caused a gash that required stitches, a broken nose, and a dislodged tooth. On 11 May 2010, DSS filed a petition alleging that the minors were neglected based on Respondent's continuing drug abuse and domestic violence.
On 23 June 2010, Respondent and Father stipulated to the allegations in the petition and the minors were adjudicated neglected. DSS assumed legal custody of the minors, and they were placed in the home of their great aunt and uncle. Respondent was ordered to participate in mental health treatment and follow all recommendations; to complete a substance abuse assessment and comply with treatment recommendations; to submit to random drug screens; and to attend all scheduled meetings facilitated by DSS to review the case plan. In a review order entered 2 September 2010, the trial court awarded legal custody to the great-aunt and uncle and ordered DSS to cease reunification efforts with Respondent and Father. In a 15 March 2011 review order, the trial court changed the minors' permanent plan to adoption.
On 15 August 2011, DSS filed a petition to terminate the parental rights of Respondent and Father as to both of the minors. DSS alleged the same grounds to terminate parental rights as to both parents: (1) neglect; (2) willful failure to make reasonable progress; and (3) willful abandonment. On 2 November 2011, the trial court entered an order terminating Respondent's parental rights to the minors. As to Respondent, the trial court concluded that she had neglected the minors and willfully failed to make reasonable progress, and found that it was in the minors' best interests to terminate her parental rights. Respondent appealed.
Respondent argues on appeal that the evidence does not support the trial court's conclusion that grounds existed to terminate her parental rights or that it was in the minors' best interests to terminate her parental rights. We disagree.
At the adjudicatory stage of a termination of parental rights hearing, the burden is on the petitioner to prove that at least one ground for termination exists by clear, cogent, and convincing evidence. N.C. Gen.Stat. § 7B–1109(f) (2011); In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). Review in the appellate courts is limited to determining whether clear and convincing evidence exists to support the findings of fact, and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
We note that although the trial court concluded grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and (2) (2011) to terminate Respondent's parental rights, we find it dispositive that the evidence supports termination of her parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), based on her willful failure to make reasonable progress. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (a finding of one statutory ground is sufficient to support the termination of parental rights).
In terminating parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), the trial court must conduct a two-part analysis:
The trial court must determine by clear, cogent and convincing evidence that a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and, further, that as of the time of the hearing, as demonstrated by clear, cogent and convincing evidence, the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child. Evidence and findings which support a determination of “reasonable progress” may parallel or differ from that which supports the determination of “willfulness” in leaving the child in placement outside the home.
In re O.C., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396, (2005).
A respondent's failure to make reasonable progress must be willful, which is established when the respondent had the ability to show reasonable progress but was unwilling to make the effort. “A finding of willfulness does not require a showing of fault by the parent.” In re Fletcher, 148 N.C.App. 228, 235, 558 S.E.2d 498, 502 (2002) (citation omitted). “ ‘Willfulness' when terminating parental rights on the grounds of N.C. Gen.Stat. § 7B–1111(a)(2), is something less than ‘willful’ abandonment when terminating on the ground of N.C. Gen.Stat. § 7B–1111(a)(7).... A finding of willfulness is not precluded even if respondent has made some efforts to regain custody of the children.” In re Shepard, 162 N.C.App. 215, 224, 591 S.E.2d 1, 7 (2004) (internal citation omitted).
In this case, the evidence and the trial court's findings of fact support the conclusion that Respondent failed to make reasonable progress. Those findings include, in relevant part:
3. That the New Hanover County Department of Social Services' initial involvement with the family stemmed from substance abuse issues, anger issues and domestic violence between [Respondent] and [Father]. [DSS] referred Respondent–Parents for substance abuse treatment, anger management, empowerment classes and parenting classes.
...
....
5. That the case was transferred to Social Worker Johnson in June of 2010 and remained with said worker through March of 2011. An Out of Home Services Agreement was completed during the Child and Family Team Meeting on June 24, 2010. [Respondent] agreed to obtain a mental health assessment, complete a substance abuse assessment, maintain housing, seek employment, complete the empowerment course and submit to random drug screens. During said period, [Respondent] failed to maintain housing, failed to complete the empowerment course and failed to obtain employment. She did complete the mental health assessment.
....
7. At the ninety day review held on August 18, 2010, [Respondent] acknowledged her inability to provide for her children and noted her agreement with the Court granting legal custody to the maternal great aunt and uncle[.]
....
9. [Respondent] acknowledged that she initiated mental health therapy with ACI between 2009 and 2010. Therapy was then transferred to A Helping Hand. She went 2–3 times, but subsequently quit. She has not engaged in therapy since. Having been diagnosed with Bipolar Disorder and Depression, [Respondent] started taking prescribed medications, but discontinued the same, as she “could not tell any difference.” She acknowledged submitting two drug screens which were positive for PCP. She acknowledged maintaining a relationship with [Father] and continued domestic violence.
10. [Respondent] had the opportunity for unlimited visitation with her children in the home of her aunt[.] Visitation was sporadic and she last visited in early June.
11. [DSS] and caretakers for the children were unaware of [Respondent's] whereabouts from early June of 2011 until August 2, 2011. [Respondent] was on the run from outstanding warrants for her arrest. She is currently incarcerated for assault with a deadly weapon with intent to kill inflicting serious injury, possession of a firearm by [a] felon and probation violation.
These findings support the trial court's conclusion that Respondent failed to make reasonable progress during the relevant time period. Although Respondent at times made some progress toward her case plan, such as completing a mental health assessment, she also consistently disregarded other elements of the plan, by failing to maintain housing and employment, by refusing to complete and cooperate with mental health treatment, and by continuing her violent relationship with Father. We further hold that these findings of fact, including the findings challenged by Respondent, are supported by the testimony of the social workers and Respondent herself at the adjudication phase of the termination hearing. Although some of Respondent's testimony contradicted some of the testimony by the social workers, the trial court, as the finder of fact, was not bound to accept Respondent's testimony in its entirety as true or to interpret that testimony as respondent desires. Thus, the trial court acted within its discretion in making findings of fact that are supported by the evidence, and we hold that the trial court properly concluded that a ground existed to terminate Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2).
Once the trial court has determined that a ground for termination exists, it must determine whether termination is in the best interest of the minor. N.C. Gen.Stat. § 7B–1110(a) (2011). In determining the best interest of the minor, the trial court must consider the factors listed in N.C. Gen.Stat. § 7B–1110(a). In re S.T.P., 202 N.C.App. 468, 473–74, 689 S.E.2d 223, 227–28 (2010). The trial court's decision at this stage is reviewed for an abuse of discretion. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002).
Here, the trial court made the following relevant dispositional finding of fact:
17. That [the minors] are in a stable home with their great-aunt and uncle [.] [M.P.] is twenty months old and has lived with [the aunt and uncle] since birth. [M.C.] is three and a half years old and has lived with the [aunt and uncle] off and on since birth, but consistently for the past twenty (20) months. The children are very bonded with [the aunt and uncle] and their three children. [The minors] have no bond with [Father], and their bond with [Respondent] has lessened over time. [The great aunt and uncle] would like to adopt the [minor] and terminating the parental rights of [Respondent] and [Father] will assist in accomplishing the permanent plan of adoption.
This finding of fact directly addresses the factors listed in N.C. Gen.Stat. § 7B–1110(a), and is supported by the evidence. Respondent's argument otherwise is without merit. Accordingly, we affirm the order terminating Respondent's parental rights.
Affirmed. Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).