Opinion
No. 07-619.
Filed November 6, 2007.
Mecklenburg County Nos. 06-JT-447, 06-JT-448.
Appeal by respondent from an order entered 20 March 2007 by Judge Lisa C. Bell in Mecklenburg County District Court. Heard in the Court of Appeals 25 September 2007.
Mecklenburg County Attorney's Office, by Tyrone C. Wade, for petitioner-appellee. Sofie W. Hosford for respondent-appellant father. Teague, Campbell, Dennis Gorham, L.L.P., by Robert C. Kerner, Jr., for guardian ad litem.
Respondent father appeals from an order terminating his parental rights to S.M.S. and P.J.S. On appeal, respondent primarily argues that the evidence he presented at trial justifies reversal of the trial court's order terminating his parental rights. Under our standard of review, however, we consider only whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support the conclusions of law. We cannot accept respondent's invitation that we reweigh the evidence. Because we hold, under our standard of review, (1) that the trial court properly concluded that respondent failed to make reasonable progress over three years in correcting the conditions that led to the removal of his children, and (2) that the court did not abuse its discretion in finding that termination of parental rights is in the children's best interests, we affirm.
In order to protect the privacy of the children, we will refer to the children by the pseudonyms "Sarah" and "Peter."
Facts
The Mecklenburg County Department of Social Services ("DSS") first became involved with this family in December 2001. At that time, DSS received a report that respondent father physically injured the mother, in front of their children, when she tried to leave the house with the children. Initially, DSS was concerned about inappropriate discipline, substance abuse by respondent father, and domestic violence between the children's parents. DSS provided family intervention services, but still received additional reports of inappropriate discipline. The parents disciplined Sarah by taping her mouth shut with duct tape, placing hot sauce on her tongue, and locking her in her room. DSS also learned of continued alcohol and drug usage by respondent father.
DSS and the parents entered into case plans to address the issues. Although the mother partially completed her case plan, the father did not comply with any of his case plan objectives. At one point, the mother obtained a domestic violence protection order against the father, but subsequently she caused it to be dismissed.
During this period of involvement by DSS, the parents lived for a time with the paternal grandparents. On one occasion, Sarah was inappropriately touched sexually by her father's teenage son, who was also living there. The mother eventually moved into a shelter, during which time a sister of Sarah and Peter drowned while in the mother's care. After the child's death, the mother returned to reside in the home of the paternal grandparents where Sarah had been sexually abused.
On 2 July 2004, DSS filed a petition alleging that Sarah and Peter were neglected and dependent juveniles. On 30 August 2004, the trial court entered an order adjudicating the children to be neglected and dependent juveniles based on certain stipulations of the parents. In the dispositional portion of the order, the court adopted and incorporated by reference DSS' proposed case plans for the parents. The court also specifically noted that the father was "made aware of consequences for failing to participate in NOVA. He showed for assessment and denied any acts of violence."
NOVA is the New Options for Violent Actions Program.
Respondent's case plan required that he attend parenting classes and "demonstrate a clear understanding of the children's developmental, emotional, and physical needs." He was also required to obtain substance abuse and mental health treatment and follow all recommendations, as well as address domestic violence issues by attending meetings at NOVA and following all of their recommendations. With respect to the need to obtain a stable income, respondent was required to provide information about his application for disability benefits and to communicate with the social worker about his plan for obtaining income if found not disabled.
In a review hearing order filed 9 November 2004, the court also directed respondent to provide documentation that he was attending NA/AA three times a week and required that he obtain a sponsor. The order stated that the father had been told that he must complete NOVA or the court would not consider returning the children to his care.
After conducting a review hearing on 28 February 2005, the court entered an order on 15 March 2005. The court found that the father was not in a position to be a placement for his children and had not complied with his case plan. The court further found that the father's failure to comply with NOVA was willful rather than an inability to pay the fee requirement. The court ordered that efforts to reunite the children with the father were to cease. The order indicated that the father consented to the suspension of reunification efforts.
In a review hearing order filed 11 May 2005, the court found that both parents had begun to make progress on their case plan objectives. The court found further, however, that although the father had completed the NOVA assessment and had begun to attend group sessions, "there are concerns regarding his level of participation." The court ordered that "the father must fully comply with the rules of NOVA or he runs the risk of not having visits with his children." The court also stressed that even though reunification efforts had been "suspended" as to the father,"he must nonetheless comply with the case plan if he wishes to be considered at any time in the future as a placement option."
After a permanency planning hearing on 30 June 2005, a review hearing on 3 October 2005, and a review hearing on 13 December 2005, the court found each time that both parents were complying with their case plans. In a permanency planning order entered 15 March 2006, the court acknowledged that the father had made progress, but found that "[t]he father has not made significant enough progress for reunification with the juveniles to occur." The court noted that DSS still had concerns about the father's drinking and that "[a]s recently as September 2005, the father was detained by law enforcement with his adult son for stealing beer." The court also found that the father had not provided proof of attendance at NA/AA meetings or of obtaining a sponsor, he was living with his niece, and he had not obtained employment, but was still awaiting a determination on disability.
On 17 April 2006, DSS filed a petition to terminate respondent father's parental rights. DSS alleged three grounds for termination: (1) that respondent had neglected his children (N.C. Gen. Stat. § 7B-1111(a)(1) (2005)); (2) that respondent had willfully left the children in foster care for more than 12 months without showing that reasonable progress under the circumstances had been made in correcting those conditions that led to the children's removal (N.C. Gen. Stat. § 7B-1111(a)(2)); and (3) that respondent, for a continuous period of six months immediately preceding the filing of the petition, had failed to pay a reasonable portion of the cost of care for the juveniles although physically and financially able to do so (N.C. Gen. Stat. § 7B-1111(a)(3)).
On 12 June 2006, the mother relinquished her parental rights. Respondent father did not attend a review hearing on 7 August 2006. The order entered the same day required "complete and full compliance by father with case plan and demonstrated ability to meet needs of juveniles."
Hearings were held on the petition to terminate respondent father's parental rights on 17 October, 7 November, and 18 December 2006, and on 2 and 21 February 2007. The trial court concluded that each of the grounds for termination of respondent's parental rights alleged in the petition existed. The court further concluded that it was in the children's best interests that respondent's parental rights be terminated. Respondent filed a timely appeal from this order.
Discussion
We first consider respondent's argument that the trial court erred by finding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111 to terminate his parental rights. A finding of any one of the separately-enumerated grounds in N.C. Gen. Stat. § 7B-1111 is sufficient to support a termination of parental rights. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). "The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law." In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005).
Because we hold that the trial court properly concluded that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(2), we do not address respondent's arguments regarding the other two grounds. 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[s] . . . found by the trial court."). This Court has stated that:
[T]o find grounds to terminate a parent's rights under G.S. § 7B-1111(a)(2), the trial court must perform 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.
In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (internal citations omitted), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005).
In this case, at the time of the termination of parental rights hearing, the children had been in DSS custody for 32 months. Among the reasons for the children's removal from respondent's home were respondent's alcohol and drug usage, his lack of stable income or housing, and domestic violence. In concluding that grounds existed under § 7B-1111(a)(2), the court explained that it was relying upon the facts that "respondent father waited several months before even beginning to work his case plan so that reasonable efforts were suspended by his consent and when he began to work the case plan, though he made some progress, the Court is not convinced that he participated fully to make sufficient progress for the juveniles to be returned into a safe and permanent home. . . . He currently does not have stable and appropriate housing; he is not employed; and this Court has concerns regarding the level of commitment to leading a sober lifestyle."
In its findings of fact, the court found that although the father's case plan went into effect in August 2004, the father was not making progress on his case plan until the 19 April 2005 review hearing. Specifically, he was not complying with requirements that he provide documentation of attendance at NA/AA, that he obtain a sponsor, and that he complete NOVA. The court pointed out that the father consented at the 28 February 2005 hearing to having reunification efforts with him suspended. The court noted that the father made progress from the 19 April 2005 hearing through the 28 February 2006 hearing, but had made insufficient progress to return the children to the father's custody within six months.
The court then made the following findings of fact in support of its conclusion that respondent had failed to make reasonable progress:
20. That the children, particularly [Sarah], has [sic] special needs. She was the victim of sexual abuse, experienced the death of her younger sibling, and demonstrated indiscriminant social attachment. [Respondent] had not participated in any services to equip himself to understand or meet his children's needs. That at the date of the TPR hearing, he had still not participated in any such services or demonstrated an ability to understand or meet the children's needs despite the fact that Social Worker Fleury advised him repeatedly that he needed to demonstrate what he learned through the services provided in parenting his children. Also, as of the date of the TPR hearing, [respondent] continued to reside with his son who was the perpetrator of the sexual abuse on [Sarah].
21. That DSS made reasonable efforts to implement a permanent plan but the parents had not made sufficient progress toward completion of the case plan goals. The Court did not minimize the parents' efforts but the court had made the mother and father aware that merely completing a checklist is not sufficient to demonstrate to the court that they can meet the children's needs. Neither the mother nor the father could demonstrate the necessary skills to the satisfaction of the court. . . .
22. That [in] March 2005, the father had completed parenting class and had begun NOVA. However, NOVA continued to have concerns about [respondent's] home life, in that he continued to reside in a very dysfunctional household and was still unable to demonstrate appropriate parenting decisions and judgment. [Respondent] was not able to demonstrate that he was able to incorporate anything he had learned in NOVA. The Court finds that he has not satisfactorily completed this aspect of his case plan.
23. That [in] September 2005, the father was detained by law enforcement with his adult son for stealing beer. He had recently moved in with his relative but had not obtained part-time or full-time employment. He indicated he was awaiting a decision on any disability claims he might have. He was not in a position to provide placement for the juveniles.
24. That [respondent] completed Chemical Dependency Center on 11 October, 2005. At the time of discharge, he had obtained a sponsor. In a letter dated on 10-10-2005, he was released from the Chemical Dependency Center but was advised to follow his after care plan which recommended ongoing attendance at 12 step meetings and utilization of his sponsor for continued recovery support. However, he never provided documentation of any NA/AA meeting attendance and was never able to show to the satisfaction of the court he was maintaining a sober lifestyle. He indicated to the social worker that he was attending meetings as he needed. Since [respondent] was detained for shoplifting beer at a convenience store near the time of completion of the CDC program, the Court finds that [respondent] does not understand substance abuse or dependency. He lacks an appreciation for a lifetime commitment to the recovery process in order to remain sober. Therefore, the Court finds he has not satisfactorily completed this aspect of his case plan.
. . . .
26. That according to the psychologist, Larry Yarbrough, [respondent] participated in therapy with him for a period of time and made progress, though in his opinion, [respondent] did not attend therapy on a regular and consistent basis. He missed several scheduled visits either by simply not showing or calling to cancel, and then after rescheduling, not showing for the subsequently rescheduled visit. Substance abuse, anger, grief and depression were issues being addressed.
. . . .
29. That [respondent] has not obtained employment or any other source of stable income during the entire time the children have been in the custody of DSS. He was initially denied disability and never demonstrated to the satisfaction of the court that he was unable to earn some income with which to contribute to the cost of the care of the children. The father has offered various explanations for his failure to secure employment.
Respondent challenges portions of each of these findings of fact, except for finding of fact 23, as unsupported by the evidence. We disagree.
With respect to finding of fact 20, respondent does not contest that his children have special needs, especially Sarah. He contends, however, that the fact he attended parenting classes precludes this finding. With respect to finding of fact 22, respondent challenges only the court's assertion that he had not demonstrated that he was able to incorporate anything he learned in NOVA, pointing to evidence that he had separated from the children's mother and had a healthy and stable relationship with his new girlfriend.
These arguments overlook the special needs of the children as a result of their experience with sexual abuse, domestic violence, and the death of their sister. The focus of finding of fact 20 was on respondent's failure to "equip himself to understand or meet" these special needs. The court's finding is supported by testimony of a DSS social worker that when she discussed the sexual abuse of Sarah by her half-brother, respondent never wavered from his conviction that the allegations of abuse were untrue. Consistent with this belief, he continued to live in the same home as the perpetrator of the sexual abuse on Sarah. A social worker testified that although for a month he lived with his sister — a residence appropriate for the children — he chose to move back in with his father even though DSS explained to him that his children could not live in the same house as the person who had sexually abused Sarah. Respondent also does not contest the portion of finding of fact 22, supported by a report from NOVA, that NOVA continued to have concerns about respondent's home life since he continued to live in a "very dysfunctional household." This evidence reveals, as found by the trial court, a lack of comprehension and ability to help Sarah and Peter with the "special needs" resulting from sexual abuse, domestic violence, and their sister's death.
Additionally, a DSS social worker testified that respondent was unable to implement what he learned from parenting classes during visitation with the children. Specifically, Fleury testified that DSS would often have to "redirect" respondent from engaging in inappropriate conversation in front of the children, including mentioning the drowning death of their sister, bringing up their mother, and swearing. A social worker assistant and a case worker similarly testified about respondent's making inappropriate statements in front of the children. A DSS social worker also pointed out that sometimes she would have to prompt respondent to actually engage with the children during visitation.
In addition, respondent does not specifically contest the trial court's finding that NOVA "continued to have concerns [that] respondent . . . was still unable to demonstrate appropriate parenting decisions and judgment." With respect to parenting decisions, the evidence indicated that respondent was detained with his son by law enforcement on allegations that they had stolen beer together.
With respect to finding of fact 21, we believe that this general finding of fact is supported by the more specific findings of fact 20 and 22, which are in turn supported by the evidence. Nonetheless, respondent contends that his failure to demonstrate that he could meet the children's needs was due to "the fact that he was not given the opportunity to apply his learned skills with unsupervised visitation."
We believe this argument addresses only the weight and credibility of the evidence, matters to be decided by the trial judge and not on appeal. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (holding that it is the responsibility of the trial judge to "weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom"). In any event, we fail to see how visitation out of the sight of a social worker would better demonstrate the father's ability to apply parenting skills for his special needs children when the father behaved inconsistently with those needs while observed by the social worker. We, therefore, hold that findings of fact 20, 21, and 22 are supported by clear, cogent, and convincing evidence. In regard to finding of fact 24, respondent first contends that the trial court erred in relying upon testimony about his being caught with his son trying to steal beer. Respondent did not, however, challenge finding of fact 23 in which the court found that in "September 2005, the father was detained by law enforcement with his adult son for stealing beer." This finding is binding on appeal and supports finding of fact 24. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Further, respondent does not challenge testimony that (1) respondent admitted to a social worker that he carried the beer up to the store counter (in his jacket), and (2) he did not deny purchasing the beer for his own consumption.
In rebuttal to finding of fact 24, respondent points to the testimony of his therapist, Larry Yarbrough, that respondent had made excellent progress in his sobriety. The trial court was, however, responsible for determining what weight to give Mr. Yarbrough's testimony and, in finding of fact 27, specifically explained why it did not find Mr. Yarbrough's opinion of respondent's progress compelling: "Mr. Yarbrough based much of his assessment on his observations and the self report of [respondent]. Mr. Yarbrough further testified and this court finds that [respondent] did not report to Mr. Yarbrough the incident regarding stealing the beer. Mr. Yarbrough further testified that had [respondent] reported that incident it could have affected his opinion as to the level of progress made by [respondent]." Notably, respondent did not assign error to finding of fact 27. Finally, respondent challenges finding of fact 24's assertion that "he never provided documentation of any NA/AA meeting attendance and was never able to show to the satisfaction of the court he was maintaining a sober lifestyle." Respondent counters that "[t]he fact that he did not provide certificates of attendance from the AA meetings does not indicate that he failed to attend. The petitioner had the burden of proof at this trial, after all." This argument disregards the requirement in respondent's case plan — incorporated in several orders — that respondent provide documentation of his attendance at NA/AA meetings. Given the confidentiality surrounding such meetings, a requirement of documentation is a reasonable means for verifying that a parent is being truthful about his or her attendance. The court is not required to accept on faith a parent's assertions of compliance.
Respondent also disputes the trial court's determination in finding of fact 26 that Mr. Yarbrough indicated in his testimony that respondent "did not attend therapy on a regular and consistent basis." We believe that the finding is a fair interpretation of Mr. Yarbrough's testimony that respondent attended about half of his appointments — both in 2005 and 2006 — and that respondent's attendance was not as "regular as [he] would like for it to be with any of [his] clients."
Finally, with respect to finding of fact 29, the uncontroverted evidence is that respondent did not have stable employment. Although respondent claimed that he could not work due to a disability, his application for disability was denied. The trial court was not required to accept respondent's claims, in the face of that denial, that he was unable to earn any income. Further, in the event of denial of respondent's application for disability benefits, respondent's case plan required him to communicate a plan for obtaining the income necessary to support his children. As the trial court noted, respondent "offered various explanations for his failure to secure employment." The record, however, contains no evidence of any explanation as to how respondent planned to support his children.
In short, the above findings are each supported by clear, cogent, and convincing evidence. Respondent does not contend that these findings are insufficient to support the conclusion of law that respondent willfully left the children in foster care placement for more than 12 months without showing reasonable progress in correcting those conditions that led to the removal of the children. Instead, respondent simply reargues the evidence. The trial court's findings, however, establish that respondent failed to make reasonable progress as to sobriety, employment, housing, and understanding and addressing his children's special needs.
Grounds to terminate parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) may be found even where a parent has made some progress. "This Court has held that `[e]xtremely limited progress is not reasonable progress.' This standard operates as a safeguard for children. If parents were not required to show both positive efforts and positive results, `a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose.'" B.S.D.S., 163 N.C. App. at 545, 594 S.E.2d at 93 (internal citation omitted) (quoting In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995)). Accordingly, we hold that the trial court did not err in concluding that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Respondent lastly argues that the trial court erred in concluding that it was in the best interests of the children to terminate his parental rights. "The trial court has discretion, if it finds that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the child's best interests." In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). As a discretionary decision, the trial court's dispositional order will not be disturbed unless it is so arbitrary that it could not have been the result of a reasoned decision. In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385, 387, aff'd per curiam, 360 N.C. 165, 622 S.E.2d 495 (2005).
In arguing that the trial court's decision constituted an abuse of discretion, respondent again reargues the evidence. Respondent asserts: "Temporary situations rendering a parent unable to care for their children should not result in an automatic termination of parental rights. [Respondent] demonstrated his fitness as a parent and the ability to reacquire custody of his children." Contrary to respondent's suggestion, this case did not involve a "[t]emporary situation." Rather, DSS had been involved with the family since 2001, the children had been in custody since 2004, and respondent was given almost three years to work on the issues necessary to regain custody of his children. He waited for a substantial period of time before beginning to address his case plan and even consented to a suspension of reunification efforts. Even after belatedly commencing work on his case plan, however, respondent, at the end of an almost three-year period of time, still had alcohol abuse issues, did not have proper housing, had no plan to support his children, was living with the alleged abuser of Sarah, and still exhibited questionable parenting judgment.
In making its determination to terminate respondent's parental rights, the trial court stated:
The juveniles have been in care for over thirty-two (32) months and remained in one home for almost the entire time they have been in custody. Termination will aid in the accomplishment of the permanent plan for the juveniles which this court finds to be adoption, which then is in the juveniles' best interests. The age and likelihood of adoption for the juveniles also support a conclusion that termination is in the juveniles' best interests.
Given the trial court's findings of fact made after a lengthy hearing, we cannot find manifestly unreasonable the trial court's determination that, given the children's ages and the likelihood of adoption, termination of parental rights was in the children's best interests. We, therefore, affirm.
Affirmed.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).