IN RE:
SHEYENNE SHERRI ROCHA Cumberland County
and Nos. 98 J 346-47
CHARLES DAKOTA LOCKLEAR,
Juveniles.
Hatley & Stone, P.A., by Michael A. Stone, for respondent
appellant.
Cumberland County Department of Social Services, by John F.
Campbell, for petitioner appellee.
TIMMONS-GOODSON, Judge.
Wanda Gail Locklear Rocha (“respondent”) appeals from an order
terminating her parental rights. For the reasons stated herein, we
affirm the order of the trial court.
Respondent is the natural mother of the two minor children at
issue in the present case: Sheyenne Sherri Rocha (“Sheyenne”), born
10 July 1992, and Charles Dakota Locklear (“Charles”), born 16
March 1996. On 10 April 1996, the district court entered a
nonsecure custody order granting the Cumberland County Departmentof Social Services (“DSS”) custody of Charles, who was less than
one month old at the time. At an adjudication hearing on 13
November 1996 concerning the alleged neglect and dependency of
Charles, respondent stipulated through her attorney that she was
unable to care for the child due to her substance abuse problem.
The trial court therefore entered an order on 28 January 1997
adjudicating Charles to be a dependent child pursuant to the North
Carolina Juvenile Code.
On 13 May 1998, DSS filed a petition to terminate respondent's
parental rights regarding Sheyenne and Charles. Although a summons
was immediately issued to respondent, it was returned to the office
of the clerk on 15 May 1998 with a notation that respondent had not
been served because she had “moved to [Georgia].” Unable to
discover respondent's whereabouts, DSS took steps to serve
respondent by publication. On 8 July 1998, DSS filed an affidavit
stating that service by publication was necessary because
respondent's address was unknown, and that DSS had been unable,
through due diligence, to locate respondent. The affidavit further
stated that “[t]he Respondent Mother is believed to be concealing
her person or whereabouts to avoid service of process[.]” A Notice
of Service by Publication was thereafter published on 30 May, 6
June, and 13 June of 1998. On 22 June 1998, however, the
Cumberland County Sheriff's Department personally served notice on
respondent.
The matter came before the trial court on 8 May 2000, at which
time evidence tending to show the following was presented: Respondent is the mother of at least six children and has a history
of substance abuse. None of respondent's children resides with
her. At the date of the hearing, respondent was a resident of
Georgia, despite the fact that all of her children live in North
Carolina. Although Charles has lived in foster care with
respondent's relatives since he was one month of age, respondent
has never paid any support for his care. In April 1998,
respondent's visitation rights were terminated for failure to make
sufficient progress in her drug treatment. Respondent never made
sufficient progress in the estimation of DSS to have her visitation
rights restored. At the time of the hearing, respondent admitted
that she had seen Charles only once in the past two years.
The trial court found that there was clear, cogent and
convincing evidence to terminate respondent's parental rights on
the following grounds: (1) respondent “willfully left the minor
children in foster care for more than twelve months without showing
to the satisfaction of the Court that reasonable progress under the
circumstances has been made within twelve months in correcting
those conditions which led to the removal of the children[;]” (2)
respondent “failed to pay a reasonable portion of cost of care for
the minor children although physically and financially able to do
so[;]” (3) respondent was “incapable, as a result of substance
abuse, of providing for the proper care and supervision of the
children, such that the children are dependent children within the
meaning of N.C.G.S. § 7B-101(9), and that there is a reasonable
probability that such incapability will continue for theforeseeable future[;]” and (4) respondent “willfully abandoned the
minor child Charles Dakota Locklear for at least six consecutive
months immediately preceding the filing of the Petition.”
Based on the above-stated evidence and findings, the trial
court concluded that statutory grounds existed to terminate
respondent's parental rights as to Sheyenne and Charles. The court
therefore terminated respondent's parental rights with respect to
Charles, but ordered that, “[a]s to the minor child Sheyenne Sherri
Rocha disposition of this matter is continued for a period of
ninety (90) days.” The record, however, contains no further orders
concerning Sheyenne. Although the transcript from a 23 October
2000 hearing indicates that the trial judge ordered respondent's
parental rights as to Sheyenne terminated, no such written order
appears in the record on appeal.
Respondent now appeals from the trial court's order
terminating her parental rights.
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Respondent argues that the trial court's termination of her
parental rights is in error because (1) service of process
regarding the petition for terminating her parental rights was
defective; and (2) the trial court's findings of fact and
conclusions of law are not supported by the evidence. For the
reasons stated herein, we affirm the order terminating respondent's
parental rights.
As a preliminary matter, we note that respondent's appeal is
interlocutory, as the order from which she is appealing does notdispose of the case but requires further action by the trial court
in order to finally determine the rights of all the parties
involved in the controversy. See Veazey v. Durham, 231 N.C. 357,
361-62, 57 S.E.2d 377, 381 (1950). Although the order terminates
respondent's parental rights as to Charles, it reserves for future
determination respondent's parental rights as to Sheyenne. Thus,
the order is not final, but leaves further issues for resolution at
a later date. Although we do not generally review interlocutory
orders, such appeals are allowed if the order affects respondent's
substantial rights. See N.C. Gen. Stat. §§ 1-277(a), 7A-27(d)(1)
(2001). We conclude that the termination of respondent's parental
rights as to one of her children affects her substantial rights,
and we therefore address respondent's appeal. See Petersen v.
Rogers, 337 N.C. 397, 400-01, 445 S.E.2d 901, 903 (1994) (noting
that a parent's right to custody, care and control of his or her
child is a paramount and constitutionally-protected right). As
there is no order in the record terminating respondent's parental
rights over Sheyenne, however, we must dismiss respondent's appeal
as it concerns this child. We therefore limit our review of
respondent's appeal to her arguments concerning the termination of
her parental rights over Charles.
Respondent argues that the trial court erred in terminating
her parental rights because she did not receive proper notice of
the petition filed by DSS. Respondent asserts that there was no
summons issued in this matter until 4 August 1999, more than a year
after commencement of the action. Thus, argues respondent, the“entire action and cause was technically discontinued,” such that
the trial court lacked personal jurisdiction over respondent, as
well as subject matter jurisdiction over the case. This argument
has no merit.
The record clearly shows that a summons was issued within five
days after the petition for termination of parental rights was
filed, but it was returned because the sheriff could not locate
respondent. Respondent was then served by publication, and
respondent was personally served by the Cumberland County Sheriff's
Department on 22 June 1998. Moreover, respondent had adequate
notice of the proceedings against her, as she personally appeared
and was represented by counsel at the termination hearing. Thus,
the trial court properly concluded that it had jurisdiction to hear
the case, and we overrule respondent's first assignment of error.
By her next assignment of error, respondent argues that the
findings and conclusions by the trial court are unsupported by the
evidence. Respondent contends that none of the evidence presented
at trial was timely or relevant, but rather based on events
occurring more than a year before the termination hearing. We
disagree.
The trial court concluded that there existed four separate
grounds under section 7B-1111 of the North Carolina General
Statutes to terminate respondent's parental rights. Any one of
these grounds, if sustained by the evidence, is sufficient to
support a termination of parental rights. See N.C. Gen. Stat. §
7B-1111(a) (2001). The petitioner seeking termination of parentalrights has the burden of showing by clear, cogent and convincing
evidence that such grounds exist. See N.C. Gen. Stat. § 7B-1109(f)
(2001); In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232
(1984). The appellate court's task upon review is to “determine
whether the trial court's findings of fact were based on clear,
cogent, and convincing evidence, and whether those findings of fact
support a conclusion that parental termination should occur on the
grounds stated in N.C. Gen. Stat. § [7B-1111].” In re
Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395
(1996); see also N.C. Gen. Stat. § 7B-1109(f) (stating that “all
findings of fact shall be based on clear, cogent, and convincing
evidence”). Where the petitioner meets its burden, and the trial
court's findings of fact support any one of the statutory grounds,
we should affirm the order terminating parental rights. See In re
Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985). We
therefore examine the grounds for terminating respondent's parental
rights as found by the trial court and the evidence supporting such
findings.
First, the court determined that respondent willfully left
Charles in foster care for more than twelve months without making
reasonable progress in correcting the conditions which led to the
removal of the children. See N.C. Gen. Stat. § 7B-1111(a)(2)
(2001). Under this section, “[a] finding of willfulness is not
precluded even if the respondent has made some efforts to regain
custody of the children.” See In re Nolen, 117 N.C. App. 693, 699,
453 S.E.2d 220, 224 (1995). In the instant case, the primary condition leading to
respondent's loss of custody of her children was her substance
abuse problem. Respondent testified that she entered into five
separate intervention plans with DSS in order to regain custody of
her children. According to respondent, these plans called for her
“to get into an inpatient or outpatient program, have random drug
screens, parenting classes, [a] stable home and [to] have a job for
at least three months.” Although respondent produced evidence of
her active employment status, she admitted that she had not
enrolled in a drug treatment program, nor had she undergone random
drug testing in the past two years. Respondent affirmed that she
tested positively for marijuana and cocaine in 1996, on 27 February
1998, and on 23 March 1998.
We conclude that there was clear, cogent, and convincing
evidence to support the trial court's finding and conclusion that
respondent failed to make sufficient progress in correcting the
conditions that led to the loss of custody of her children. See
Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25 (stating that,
“[e]xtremely limited progress is not reasonable progress”).
Although this finding and conclusion, standing alone, adequately
serves as a basis for the termination of respondent's parental
rights, see In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900,
903 (1984), we address the remaining three grounds for termination.
As further grounds for terminating respondent's parental
rights, the trial court determined that respondent “failed to pay
a reasonable portion of cost of care for [Charles] althoughphysically and financially able to do so.” This finding was
clearly supported by the evidence of record. Respondent testified
that she had never paid any type of support for any of her
children, despite the fact that she was actively employed. Thus,
the trial court properly found and concluded that respondent failed
to pay a reasonable portion of the cost of Charles' care.
The trial court also found that respondent was incapable, as
a result of her substance abuse, of properly caring for and
supervising Charles, such that he was a dependent child within the
meaning of section 7B-101(9) of our General Statutes, and that
there was a reasonable probability that such incapability would
continue for the foreseeable future. See N.C. Gen. Stat. § 7B-
1111(a)(6) (2001). Such incapability by a parent to properly care
for a child may arise as a result of substance abuse. See id. A
dependent juvenile is one “in need of assistance or placement
because the juvenile has no parent, guardian, or custodian
responsible for the juvenile's care or supervision or whose parent,
guardian, or custodian is unable to provide for the care or
supervision and lacks an appropriate alternative child care
arrangement.” N.C. Gen. Stat. § 7B-101(9) (2001).
In the instant case, respondent lost custody of her children
as a result of substance abuse. Although she agreed to undergo
treatment for her drug problem, respondent has never completed a
drug treatment program as required by the DSS intervention plan,
nor has she undergone random drug testing. Although respondent
produced some evidence at trial of negative drug screening, thesetests were not conducted randomly and therefore lacked credibility.
There was little evidence before the trial court to demonstrate a
change in respondent's drug status. We conclude there was clear
and convincing evidence to support the trial court's determination
that respondent was incapable of properly caring for her child as
a result of her substance abuse.
Finally, the trial court found that respondent had “willfully
abandoned the minor child Charles Dakota Locklear for at least six
consecutive months immediately preceding the filing of the
Petition.” “Abandonment implies conduct on the part of the parent
which manifests a willful determination to forego all parental
duties and relinquish all parental claims to the child.” In re
Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514
(1986). Whether a parent has willfully intended to abandon his of
her child is a question of fact to be determined from the evidence.
See id. at 276, 346 S.E.2d at 514.
At trial, respondent admitted that she had seen Charles only
once in at least two years, because her visitation rights had been
suspended. Respondent lost her visitation rights due to her
failure to take sufficient steps to address her substance abuse
problem and never regained such rights. Thus, it was respondent's
own behavior which prevented her ability to visit her child, and
she cannot argue on appeal that the termination of her visitation
rights precludes a finding of abandonment by the trial court. See
In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802-03 (1982)
(holding that where a parent has the opportunity to provide for hischild but forfeits that opportunity due to his own behavior, the
parent cannot assert that he had no ability to provide for the
child). Moreover, the evidence showed that, shortly after her
children were taken into DSS custody, respondent moved to Georgia,
where she maintained only sporadic contact with DSS. We conclude
that the trial court had clear and cogent evidence to support its
finding that respondent willfully abandoned her child. We
therefore overrule respondent's final assignment of error.
A petition for termination of parental rights must be
carefully considered in light of all the circumstances and with the
children's best interests firmly in mind. “Although severing
parental ties is a harsh judicial remedy, the best interests of the
children must be considered paramount.” In re Adcock, 69 N.C. App.
222, 227, 316 S.E.2d 347, 350 (1984). In the case at bar, Charles
lives with his maternal great aunt and uncle, who are willing and
able to adopt him. While the decision to terminate parental rights
should never be lightly made, it is not in the best interests of a
neglected or dependent child to require that he languish
indefinitely in foster care in the dim hope of eventual
reunification with a parent. The order of the trial court
terminating respondent's parental rights as to Charles Dakota
Locklear is affirmed.
Affirmed.
Judges GREENE and HUNTER concur.
Report per Rule 30(e).
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