Opinion
No. COA12–1482.
2013-06-4
In the Matter of L.D.W. and K.A.R.
Paul W. Freeman, Jr., for petitioner-appellee Wilkes County Department of Social Services. Louise M. Paglen, for guardian ad litem.
Appeal by respondent-mother from order entered 6 September 2013 by Judge Mitchell L. McLean in Wilkes County District Court. Heard in the Court of Appeals 6 May 2013. Paul W. Freeman, Jr., for petitioner-appellee Wilkes County Department of Social Services. Louise M. Paglen, for guardian ad litem.
Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-mother.
MARTIN, Chief Judge.
Respondent-mother appeals from the trial court's order terminating her parental rights to L.D.W. (“Logan”) and K.A.R. (“Kelly”) . For the following reasons, we affirm in part and remand for further proceedings.
Pseudonyms are being used to protect the juveniles' identities.
Yadkin County Department of Social Services (“DSS”) first became involved with the family after being alerted that Kelly's arm was severely bruised when she intervened in a domestic altercation between her mother and Logan's father on 3 September 2010. At the time, Kelly was seven years old and Logan was five.
Kelly's father is deceased.
DSS developed a safety plan for the family which required Logan's father to be at least 250 feet from mother; however, by 23 September 2010 the parents were found to be in violation of the plan. Based on its investigation of the home, DSS was concerned about lack of supervision, substance abuse, and the potential for recurring domestic violence. At this point, DSS took non-secure custody of Kelly and Logan and placed them at Ebenezer Children's Home. The same day, mother was arrested and charged with crimes associated with a sexual relationship she had with a minor.
On 21 October 2010 the children were adjudicated neglected and dependent. Mother remained incarcerated in Yadkin County Jail until 26 January 2011, at which time she pled guilty to indecent liberties with a minor and contributing to the delinquency of a minor and was placed on probation. Upon her release, mother returned to live with Logan's father. She visited with Kelly and Logan and entered into a family services plan with DSS in April 2011. Under the plan, mother was to obtain a substance abuse assessment, psychological evaluation, and sex offender specific evaluation, participate in counseling, refrain from domestic violence, maintain appropriate housing, obtain and maintain employment, attend parenting classes, and keep DSS updated with her current residence.
During this time, Heather Cain, a therapist working with the family, began to notice that the juveniles' behavior deteriorated before and after visits with mother. The trial court transferred the case to Wilkes County DSS and ceased visitation with mother. Mother's last visit with the juveniles was on 25 May 2011. In June 2011 Kelly's behavior began to worsen and she was hospitalized twice for unsafe and aggressive behaviors. Kelly was subsequently transferred to three different therapeutic foster homes, while Logan remained at Ebenezer Children's Home.
After violating the conditions of her probation, mother elected to activate her suspended prison sentence on 7 June 2011. While incarcerated, mother completed parenting classes, the DART Program, a small business class, and participated in monthly therapy. She did not, however, complete the majority of the requirements of her case plan, i.e., have a sex offender assessment or establish a place to live upon her release. Although mother was allowed to write to the juveniles while incarcerated, based on Ms. Cain's recommendation, the juveniles have not been given the letters.
At a review hearing on 3 October 2011, the trial court relieved DSS of the requirement to make reasonable efforts at reunification. Logan's permanent plan was changed to adoption, while Kelly's was changed to adoption and/or placement with an approved caregiver, as Kelly may not be a candidate for adoption based on her current behavior. Logan has been regularly visiting with a family that is interested in adopting him. Kelly has been in the same foster home since 9 November 2011.
After hearings on 29 May and 2 July 2012, the trial court entered an order terminating mother's parental rights under N.C.G.S. §§ 7B–1111 (a)(1), (a)(2), and (a)(6). Mother appeals.
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On appeal, mother contends the trial court erred by finding and concluding that grounds exist to terminate her parental rights based on willfully leaving the children in foster care for more than twelve months under N.C.G.S. § 7B–1111(a)(2). Mother also contends that the trial court abused its discretion in concluding that termination was in the juveniles' best interest because the court failed to make findings which reflected consideration of N.C.G.S. § 7B–1110(a)(3).
“Termination of parental rights is a two-step process involving an adjudicatory stage and a dispositional stage.” In re S.C.R., 198 N.C.App. 525, 532, 679 S.E.2d 905, 909,appeal dismissed,363 N.C. 654, 686 S.E.2d 676 (2009). Thus, this Court must first consider “whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.” In re Clark, 72 N.C.App. 118, 124, 323 S.E.2d 754, 758 (1984). At that point, “[i]f the petitioner meets the burden of proving that grounds for termination exist, the trial court moves to the disposition phase and must determine whether termination of parental rights is in the best interests of the child.” In re F.G.J., 200 N.C.App. 681, 686, 684 S.E.2d 745, 749 (2009). “The trial court's decision at this stage is reviewed for an abuse of discretion.” In re C.G.A.M., 193 N.C.App. 386, 394, 671 S.E.2d 1, 6 (2008).
Specifically, mother contends that the trial court erred in finding that grounds existed to terminate her parental rights based on willfully leaving the children in foster care for more than twelve months because she activated her sentence so that she could obtain treatment for substance abuse. Mother also argues she made sufficient progress in addressing the issues which triggered the juveniles being placed in DSS custody originally while she was incarcerated.
The trial court may terminate parental rights upon a finding that “[t]he 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.” N.C. Gen.Stat. § 7B–1111(a)(2) (2011). “Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort. A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.” In re C.G.A.M., 193 N.C.App. at 392, 671 S.E.2d at 5 (internal quotation marks omitted). “[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).
Here, the juveniles have resided outside the home since 23 September 2010, almost two years prior to the order terminating mother's parental rights. The trial court found that although mother was released from Yadkin County Jail on 26 January 2011, she “ elected to have her probation revoked so that she could begin serving a sentence in the North Carolina Department of Correction” on 7 June 2011. (Emphasis added). This decision caused the juveniles to remain in the custody of Yadkin County DSS. Furthermore, because she was incarcerated, mother was unable to complete the family services case plan that she entered into with Yadkin County DSS in order to address the circumstances which caused the children to be placed with DSS originally. Although mother completed a few of the requirements of her case plan, such as the DART program for substance abuse and parenting classes while incarcerated, she has failed to complete several other requirements; she has not had psychological, domestic violence, and sex offender evaluations performed, maintained an appropriate residence, refrained from domestic violence, or obtained gainful employment. See In re Nolen, 117 N.C.App. 693, 699–700, 453 S.E.2d 220, 224–25 (1995) (holding that a finding that the parent has failed to make reasonable progress is appropriate where the parent has made some attempt to regain custody of the child but has failed to show reasonable and positive results). Therefore, we hold that the trial court's finding that “the [p]etitioner has shown by clear and convincing evidence that grounds exist to terminate the parental rights of [mother] pursuant to [N.C.]G.S. § 7B–1111(a)(2)” is supported by valid findings of fact.
Because this Court has held that “the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact” when the parental rights have been “terminated pursuant to several of the statutory grounds,” we find it unnecessary to address mother's remaining arguments regarding additional statutory grounds for termination. See In re D.B., 186 N.C.App. 556, 561, 652 S.E.2d 56, 60 (2007), aff'd, 362 N.C. 345, 661 S.E.2d 734 (2008) (Tyson, J., dissenting) (emphasis added).
Next, mother contends the trial court abused its discretion in finding that it was in the juveniles' best interests to terminate her parental rights when the court failed to make findings considering N.C.G.S. § 7B–1110 (a)(3). After careful consideration, we agree.
N.C.G.S. § 7B–1110(a) states that the trial court “shall consider the following criteria and make written findings” about six relevant factors, including that “the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.” N.C. Gen.Stat. § 7B–1110 (a)(3) (2011). This Court recently held that discussing the child's likelihood of adoption but failing to make findings which “specifically state that termination of respondent's parental rights is necessary to achieve that permanent plan,” was not sufficient under N.C.G.S. § 7B–1110(a), which now “explicitly requires the trial court to make written findings of fact on all relevant factors” when assessing whether termination is in the juvenile's best interests. See In re J.L.H., ––– N.C.App. ––––, ––––, ––– S.E.2d. –––, ––– (4 December 2012).
Here, the trial court made the following findings:
46. [Logan] has not experienced the same behavior problems and difficulties as [Kelly].... [S]ince the summer of 2011, [DSS] and personnel with the group home have been seeking a possible adoptive home for [Logan]. At present, it is believed that such a home has been identified. [Logan] has been visiting with the potential adoptive parents on a regular basis and is currently spending the summer with this couple. The potential adoptive parents are licensed foster parents; and that all of their contact with [Logan] has gone well. This couple has expressed a desire to adopt [Logan]; and that there are no barriers to this adoption....
47. At present, [DSS] is not looking for an adoptive home for [Kelly]. However, in recent times, [Kelly] has told her foster mother that she wishes to be adopted and “move on” with her life....
48. Given [Kelly's] desires and the continued improvement in therapy, efforts will be undertaken to seek an adoptive home for Kelly.
Although the trial court discussed the likelihood of adoption and desire for adoption with regard to both Kelly and Logan, it did not state that the termination of parental rights will aid in the accomplishment of the permanent plan for the juveniles. Accordingly, based on this Court's decision in In re J.L.H., which we are bound to follow, see In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), we hold that the trial court's findings were not sufficient under N.C.G.S. § 7B1110 (a)(3).
Therefore, because the trial court correctly concluded that grounds existed to terminate respondent's parental rights on the ground of her willfully leaving Kelly and Logan in foster care for more than twelve months without showing reasonable progress, we affirm the adjudication portion of the trial court's order. However, the trial court failed to make findings on relevant factors included in N.C.G.S. § 7B–1110(a)(3) when determining whether termination of mother's parental rights was in the juveniles' best interests. “Since the record contains evidence from which the court could make findings as to this factor, we remand for entry of appropriate findings pursuant to [N.C.G.S.] § 7B–1110(a).” In re J.L.H, ––– N.C.App. at ––––, ––– S.E.2d at –––.
Affirmed in part and remanded in part. Judges BRYANT and DAVIS concur.
Report per Rule 30(e).