Opinion
No. COA12–1082.
2013-03-5
In the Matter of T.F., N.S.
No brief filed for Petitioner Warren County Department of Social Services. Marie H. Mobley for Guardian ad Litem.
Appeal by Respondent from order entered 12 June 2012 by Judge Randolph Baskerville in Warren County District Court. Heard in the Court of Appeals 31 January 2013. No brief filed for Petitioner Warren County Department of Social Services. Marie H. Mobley for Guardian ad Litem.
Ryan McKaig for Respondent.
DILLON, Judge.
Respondent appeals from the trial court's order terminating her parental rights. For the following reasons, we affirm in part and remand to the trial court for additional findings of fact in part.
Respondent is the mother of N.S., born in May 2005, and T.F., born in August 2006 (collectively, the children). On 6 September 2007, the Warren County Department of Social Services (DSS) filed a juvenile petition alleging that the children were neglected and dependent juveniles. DSS took non-secure custody of the children.
The trial court adjudicated the children dependent juveniles based upon issues of substance abuse, unstable housing, and unsafe living arrangements. Respondent was ordered to (1) attend and successfully complete parenting classes; (2) obtain and maintain stable housing; (3) comply with the children's treating therapist; and (4) obtain mental health and domestic violence assessments and follow recommendations. The trial court ordered that the permanent plan for the children be reunification with a concurrent plan of custody with a court-appointed caretaker.
The trial court ceased reunification efforts in January 2010 and ordered a concurrent plan of adoption and custody with a court-appointed caretaker. DSS filed a motion to terminate Respondent's parental rights in June 2010. After conducting a hearing in November 2010, the trial court concluded that it was not in the best interest of the children to terminate Respondent's parental rights and denied the motion to terminate.
DSS subsequently filed a motion to terminate Respondent's parental rights based upon failure to make reasonable progress, seeN.C. Gen.Stat. § 7B–1111(a)(2) (2011); failure to pay a reasonable portion of the cost of care, seeN.C. Gen.Stat. § 7B–1111(a)(3) (2011); and dependency, see N.C. Gen.Stat. § 7B1111 (a)(6) (2011). The trial court held hearings on the motion in February and March 2012. Subsequently, the trial court entered an order terminating Respondent's parental rights under sections 7B–1111(a)(2) and (3), concluding that it was in the best interest of the children to terminate Respondent's parental rights. Respondent appeals.
Respondent first contends that the trial court erred by concluding that sufficient grounds existed to terminate her parental rights. Preliminarily, we note that although the trial court concluded that grounds existed pursuant to sections 7B1111(a)(2) and (3), we find it dispositive that the evidence is sufficient to support termination of Respondent's parental rights under section 7B–1111(a)(2). See In re Pierce, 67 N.C.App. 257, 261, 312 S.E .2d 900, 903 (1984) (explaining that a finding of one statutory ground is sufficient to support the termination of parental rights).
Our General Statutes provide that a court may terminate parental rights on the ground 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). The willful leaving of the child is “something less than willful abandonment” and “does not require a showing of fault by the parent.” In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 398 (1996) (citations omitted). A finding of this ground may be made when the parent has made some attempt to regain custody of the child but has failed to show reasonable and positive progress. In re Nolen, 117 N.C.App. 693, 699–700, 453 S.E.2d 220, 224–25 (1995).
To support its conclusion that Respondent willfully left the children in foster care for more than 12 months without making reasonable progress under the circumstances, the trial court set forth the following findings in its termination order:
6. In January, 2011, the mother was residing with her boyfriend (now fiancé), [Mr. M. ].
....
8. In late January, early February, 2011, the mother secured her own housing on Haddad Drive. This was government subsidized housing. The housing was secured for herself, her other child who is not in care with [Mr. M.] and the two children who are the subject of this action.
9. The mother resided at the Haddad Drive residence until May 31, 2011 when she was evicted. The mother was evicted for excessive activity around the home.
10. The mother then secured housing at [ ] Highway East. This too was government subsidized housing. The mother told her social worker, Ms. Elam, that she had secured the housing. Ms. Elam attempted to send the mother a notice of a permanency planning action team meeting but the mail was returned undeliverable. The mother never moved into [ ] Highway East.
11. The mother has lived with [Mr. M.] since June, 2011 despite telling [DSS] that she had secured housing of her own.
12. The mother does not have a lease at [Mr. M.'s] residence.
13. The mother cannot obtain and maintain secure and appropriate housing for the children on her own and has not been able to do so during the life of this matter.
....
21. The mother was participating in psychotherapy with Triumph. The mother missed numerous appointments at the therapist and the mother has not provided any documentation of any further therapy appointments or ongoing treatment.
22. Shannon Hargrove–Scott was the therapist who saw the children and the mother at Success and Beyond.
23. One of the goals of therapy was to help the family bond and for the mother to demonstrate parenting skills.
24. During therapy, the mother did not exhibit growth in terms of her parenting skills but the bond between the children and their mother became more apparent.
....
28. The mother missed at least six appointments and was late for at least five appointments. When the mother missed appointments, the children's negative behaviors increased.
....
32. The mother was unable to process the purpose of the therapy sessions or what the sessions were to be used for. She could not determine how to accomplish the goal of the session or grasp the point of the therapy sessions. Because the children were Ms. Hargrove–Scott's client, Ms. Hargrove–Scott could only make suggestions to the mother.
....
38. The mother was to attend individual counseling [at] Triumph. Triumph closed its case with the mother because the mother did not comply with her appointments.
Of these findings, Respondent purports to challenge findings of fact 10, 13, 24, 28, 32 and 38, but provides no specific argument that these findings lack evidentiary support. Additionally, Respondent does not challenge the remaining findings of fact. We therefore presume the above findings of fact are supported by competent evidence, and, consequently, they are binding on appeal. See In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009).
Respondent argues that the trial court erred in concluding that she did not make reasonable progress because she “made significant efforts to comply with her case plan.” The unchallenged findings of fact, however, show that Respondent was unable to maintain stable housing, missed her own therapy appointments, and failed to attend therapy appointments for her children. We hold that these findings of fact provide ample support for the trial court's conclusion of law that grounds existed for termination of Respondent's parental rights under N.C. Gen.Stat. § 7B–1111(a)(2).
Respondent further contends that the trial court abused its discretion in determining that it was in the best interest of the children to terminate her parental rights. Respondent asserts that the trial court's order fails to demonstrate that the court considered the requisite statutory factors in rendering its decision. We agree.
The governing statute provides, in pertinent part, as follows:
(a) After an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest.... In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen.Stat. § 7B–1110(a) (2011). “This Court has held that use of the language ‘shall’ is a mandate to trial judges, and that failure to comply with the statutory mandate is reversible error.” In re Eades, 143 N.C.App. 712, 713, 547 S.E.2d 146, 147 (2001).
Here, the trial court made findings only as to the ages of the children and the bond between the children and Respondent. The issues of whether termination will aid in the accomplishment of the permanent plan, the quality of the relationship between the children and any prospective adoptive parents, and the likelihood of adoption were raised during the termination hearing, but the trial court did not make any written findings regarding these factors. As a result, the trial court's order does not comply with the requirements of N.C. Gen.Stat. § 7B1110. Because the record contains evidence from which the court could make findings as to these factors, we remand the disposition portion of the trial court's order for entry of appropriate findings pursuant to N.C. Gen.Stat. § 7B–1110(a). See In re E.M., 202 N.C.App. 761, 765, 692 S.E.2d 629, 631 (2010).
AFFIRMED IN PART; REMANDED IN PART. Judges STEPHENS and STROUD concur.
Report per Rule 30(e).