IN THE MATTER OF:
Buncombe County
JKH, DWH, BTRH, Nos. 00 J 1, 2, 3
Minor Children
No brief filed by petitioner-appellee Buncombe County
Department of Social Services.
Judy Rudolph, Attorney Advocate, for guardian ad litem-
appellee Jack Hoglan.
Michael E. Casterline for respondent-appellant.
WALKER, Judge.
JKH, DWH, and BTRH are the minor children of respondent-father
(father) and respondent-mother (mother). On 17 October 1997, the
Buncombe County Department of Social Services (DSS) filed a
juvenile petition alleging the minor children were neglected.
After a hearing on 2 February 1998, the district court adjudicated
the children as neglected “in that they did not receive the proper
care and supervision from their parents and lived in an environment
injurious to their welfare due to the domestic violence in the home
and the substance abuse of the father.”
The trial court ordered custody to remain with the mother with
DSS providing protective supervision and all visits between thechildren and their father were to be supervised at DSS. It also
ordered the father to set up child support payments through the
Buncombe County IV-D Agency and to “obtain a psychological
evaluation and a substance abuse assessment and [to] follow all
recommendations of the evaluation and the assessment.” The trial
court also ordered the children placed in counseling for as long as
the counselor recommended.
At a review hearing on 29 April 1998, the trial court noted
that the father had failed to establish child support for the
children or to obtain the previously ordered psychological
evaluation. The trial court again ordered the father to comply
with these requirements. At a review hearing on 18 August 1998,
the trial court found “[t]hat [the father] has not had any contact
with the minor children nor has he followed through with the
previous orders of the Court for child support and a substance
abuse evaluation.”
On 30 September 1998, DSS filed petitions alleging sexual
abuse of the minor children by the father and the children were
taken into custody by the DSS where they have remained. After DSS
presented evidence at the hearing, the father denied the charges of
sexual abuse but indicated to the trial court that he did not
contest the matter. The trial court found “that based on the
evidence already presented by the Department that the evidence
supports, by clear and convincing evidence, that the father has
sexually abused his children.” The trial court further adjudicated
the children as abused and ordered their custody to remain withDSS. The father was ordered to have a sex offender specific
evaluation by a psychologist approved by the social worker, to
fully comply with prior orders of the court including obtaining a
psychological evaluation and immediately contacting the IV-D Agency
for child support payments, and not to visit the children until
approved by the children's psychological care providers.
On 7 July 1999, the trial court held a Permanency Planning and
Review hearing. On 26 July 1999, the trial court found the
following in part:
8. That [the father] has an outstanding Order
for Arrest for nonsupport. [The father]
informed the court that he has paid $200.00 in
child support.
9. That there has been no significant progress
by either parent towards reunification of the
minor children in either of their homes;
therefore, custody of the minor children needs
to remain with the Buncombe County Department
of Social Services with placement in the
discretion of the Department.
. . .
11. That the Buncombe County Department of
Social Services made reasonable efforts to
prevent removal of the minor children from the
home but removal was necessary to protect the
safety and health of the children; and, the
Buncombe County Department of Social Services
has made reasonable efforts to return the
children to the home.
12. That it is in the best interest of the
minor children that their custody remains with
the Buncombe County Department of Social
Services with placement in the discretion of
the Department.
13. That it is in the best interest of the
minor children that any contact with their
father be first approved by the children's
therapists on their terms and that thetherapists be provided a copy of the Sex
Offender Specific Evaluation on [the father].
After another Permanency Planning and Review hearing on 23
November 1999, the trial court concluded in part the following:
3. That it is in the best interest of the
minor children that the plan in this case
should be change[d] from reunification to
termination of parental rights due to the fact
that this family has been involved with the
Buncombe County Department of Social Services
for two years. The Buncombe County Department
of Social Services has made every possible
effort to reunite this family, but the parents
will not comply with Court orders and work
towards reunification with the minor children.
There are no appropriate relative placements
available for the minor children.
On 23 December 1999, DSS filed petitions for termination of
parental rights. On 8 August 2000, after having heard evidence
over several days of hearings, the trial court concluded the
following in part:
4. That grounds exist for termination of
parental rights of the Respondent Father, [ ]
as follows:
a. The Respondent Father has neglected each of
the minor children and there is a high
probability that each minor child would
continue to be neglected if returned to the
Respondent Father's physical and/or legal
custody based upon the evidence of changed and
unchanged circumstances since DSS initially
obtained legal custody on September 30, 1998.
b. The Respondent Father has willfully left
the minor children in foster care for more
than twelve months without showing any
reasonable progress under the circumstances
within the twelve months to correct the
conditions which led to the removal of the
children.
c. The Respondent Father has failed, for a
continuous period of six months next precedingthe filing of the petitions, to pay a
reasonable portion of the cost of care for the
juvenile although physically and financially
able to do so.
The trial court then ordered that it was in the best interest of
the children for the parental rights of the mother and father to be
terminated. Only the father appeals the termination of his
parental rights.
N.C. Gen. Stat. § 7B-1111 (1999) states the following in part:
(a) The court may terminate the parental
rights upon a finding of one or more of the
following:
(1) The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
(2) The 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
within 12 months in correcting those
conditions which led to the removal of the
juvenile. Provided, however, that no parental
rights shall be terminated for the sole reason
that the parents are unable to care for the
juvenile on account of their poverty.
(3) The juvenile has been placed in the
custody of a county department of social
services, a licensed child-placing agency, a
child-caring institution, or a foster home,
and the parent, for a continuous period of six
months next preceding the filing of the
petition, has willfully failed for such period
to pay a reasonable portion of the cost of
care for the juvenile although physically and
financially able to do so.
Our Courts have held that any one of these findings by the trial
court is sufficient to support an order for the termination of
parental rights.
On appeal, the standard of review is whether the findings are
supported by “clear, cogent and convincing evidence” and whether
those findings in turn support the conclusions of law. In re:
Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc.
rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001). Even though there
might be evidence to the contrary, if there is competent evidence
to support the findings, they are binding on this Court.
The father first contends that the trial court erred in
finding that he willfully failed to provide child support. The
trial court found that the father was ordered to pay a total of
$530.00 per month, beginning on 1 June 1998, for child support and
to pay off previously accumulated arrears. Further, from June
through December 1999, the father made one payment on 8 July 1999
in the amount of $1,590.00, which “was an amount paid by the
Respondent Father to purge himself of contempt in the chid support
case.” This was the only payment made from 1 June 1998 through 2
March 2000, when $122.31 per week was paid pursuant to a wage
garnishment. The trial court also found that the father “has been
able bodied, employed or capable of employment and he has had the
ability to pay his child support obligation.”
After a review of the record, we find there is competent
evidence to support the findings and conclusion that the father has
failed to provide a reasonable portion of the cost of care for thechildren in the six months prior to filing the petition. Thus,
this assignment of error is overruled.
The father also asserts that the trial court erred in
concluding that he had neglected the children and that he would
continue to neglect the children if custody were returned to him.
Parental rights may be terminated “if there is a showing of a past
adjudication of neglect and the trial court finds by clear and
convincing evidence a probability of repetition of neglect if the
juvenile were returned to the parent.” In re Pope, 144 N.C. App.
32, 37, 547 S.E.2d 153, 156, aff'd, 354 N.C. 359, 554 S.E.2d 644
(2001). Here, the children were adjudicated neglected on 7 January
1998 and were adjudicated abused on 26 April 1999. The trial court
found that all of the children have “significant special needs.”
The present social worker for the children has had no contact from
the father since his being assigned to the case in November 1999.
The trial court found the following in part:
The Court specifically reserved the right of
the father to work towards visitation with the
children by specifying he could meet with each
of the children's therapist[s] to address, in
a therapeutic setting his visitation with the
children. The purpose of this provision was
to protect and promote the welfare and best
interests of the children and not to simply
deny the Respondent Father the opportunity to
work towards reunification.
The Respondent Father made no effort to
schedule an appointment or meet with the
therapists for the children. As a result he
was unable to enter into a therapeutic plan
for visitation with his children. The
father's failure to meet with the therapists
and enter into a plan for therapeutic
visitation was contrary to the best interests
of the children.
The trial court also found that “both parents were
irresponsible, abusive, manipulative and at times, violent, with
each other and that this high level of marital and personal
dysfunctional [sic] had a damaging and detrimental effect on each
of their minor children.” There was extensive evidence of domestic
violence committed by both parents in the presence of the children
before and after DSS became involved.
After a careful review of the record, we find there was
sufficient evidence to support the findings and the conclusion that
the father had neglected the children and that he would continue to
neglect them.
Finally, the father contends that the trial court erred in
concluding that he had not made reasonable progress in correcting
the conditions that led to the removal of the children. Under the
present statute, N.C. Gen. Stat. § 7B-507, DSS has a responsibility
to reasonably promulgate plans which could support reunification
efforts. When there is substantial compliance with these plans by
the parents, reunification should take place.
However, here, evidence is lacking of compliance by the father
of the requirements set forth by the trial court and DSS. The
trial court found that “[d]uring a portion of the time the children
were in custody of the Department of Social Services, the
Respondent Father refused to cooperate with DSS in working towards
reunification. The Respondent Father testified he was angry at DSS
and that is why he was uncooperative.” The father also failed to
take actions required to renew visitation with his children byscheduling appointments with their counselors. He had “sporadic
and inconsistent contact with DSS during the entire time the
children were in DSS custody.”
Although he did submit to Sex Offender Specific Evaluation, he
failed to disclose that he was adjudicated by the trial court to be
a sexual offender of his children. Furthermore, after he was
adjudicated to have sexually abused his children, he refused to
participate in therapy or treatment and he continues to deny that
any sexual abuse occurred.
After a careful review of the record, we find there was
substantial evidence to support the findings and the conclusion of
the trial court that the father did not show reasonable progress to
correct the conditions which led to the removal of the children
from his custody.
In conclusion, we find there was clear and convincing
evidence, as found by the trial court, to support its findings and,
in turn, its conclusion that the parental rights of the father be
terminated. The decision of the trial court is
Affirmed.
Judges McGEE and BIGGS concur.
Report per Rule 30(e).
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