At the hearing on a petitioner's motion for termination of
parental rights, the burden of proof shall be upon the petitioner
or movant to prove the facts justifying such termination by clear
and convincing evidence. N.C.G.S. § 7B-1111(b) (2001).
Thus, in order to prevail in a termination of
parental rights proceeding . . . the
petitioner must: (1) allege and prove all
facts and circumstances supporting the
termination of the parent's rights; and (2)
demonstrate that all proven facts and
circumstances amount to clear, cogent, and
convincing evidence that the termination of
such rights is warranted.
In re Pierce, 356 N.C. 68, 70, 565 S.E.2d 81, 83 (2002). A clear,
cogent and convincing evidentiary standard is a higher standard
than preponderance of the evidence, but not as stringent as the
requirement of proof beyond a reasonable doubt. In re Hardesty,
150 N.C. App. 380, 385, 563 S.E.2d 79, 83 (2002).
A proceeding for termination of parental rights requires the
trial court to conduct a two part inquiry. N.C.G.S. § 7B-1109(e)(2001) directs that the court first shall take evidence, find the
facts, and shall adjudicate the existence or nonexistence of any of
the circumstances set forth in G.S. [§] 7B-1111 which authorize the
termination of parental rights of the respondent. Disposition is
governed by N.C.G.S. § 7B-1110 (2001), which provides in relevant
part that upon a finding that any one or more of the conditions
authorizing a termination of the parental rights of a parent exist,
the court shall issue an order terminating the parental rights of
such parent . . . unless the court shall further determine that the
best interests of the juvenile require that the parental rights of
the parent not be terminated. N.C.G.S. § 7B-1111(a) (2001).
On appeal, [o]ur standard of review for the termination of
parental rights is whether the court's 'findings of fact are based
upon clear, cogent and convincing evidence' and whether the
'findings support the conclusions of law.' In re Pope, 144 N.C.
App. 32, 40, 547 S.E.2d 153, 158 (quoting In re Huff, 140 N.C. App.
288, 292, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C.
374, 547 S.E.2d 9 (2001)), aff'd, 354 N.C. 359, 554 S.E.2d 644
With regards to each respondent, the trial court found that
the following ground for termination of parental rights existed:
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
in correcting those conditions which led to
the removal of the juvenile.
N.C.G.S. § 7B-1111(a)(2) (2001). Respondents have each argued on
appeal that this finding was not supported by clear, cogent, and
convincing evidence. However, respondents failed to assign this
issue in their assignments of error, in violation of N.C.R. App. P.
10(a) (scope of review on appeal is confined to a consideration of
those assignments of error set out in the record on appeal in
accordance with this Rule 10). Nonetheless, in the interests of
justice, and pursuant to our authority under N.C.R. App. P. 2, we
elect to review the merits of respondents' argument.
In the case sub judice
, it is undisputed that the juvenile was
in foster care for more than twelve months prior to the filing of
the petition. However, to sustain the trial court's finding that
grounds existed for termination of parental rights under G.S. § 7B-
1111(a)(2), we must also determine that there was clear, cogent,
and convincing evidence that (1) respondents willfully left the
juvenile in foster care for more than twelve months, and (2) that
each respondent had failed to make reasonable progress in
correcting the conditions that led to the juvenile's removal from
the home. In re Bishop
, 92 N.C. App. 662, 667, 375 S.E.2d 676, 680
A parent's willfulness in leaving a child in foster care may
be established by evidence that the parents possessed the ability
to make reasonable progress, but were unwilling
to make an effort.
See, e.g., In re McMillon
, 143 N.C. App. 402, 410, 546 S.E.2d 169,
175 (2001) (holding willful refusal to make progress demonstrated
where tasks assigned to [respondent] were within her ability to
achieve, and did not require financial or social resources beyondher means); In re Nolen
, 117 N.C. App. 693, 453 S.E.2d 220 (1995)
(holding respondent's refusal to seek treatment for alcoholism
constituted willful failure to correct conditions that had led to
removal of child from home).
Regarding the requirement that for at least twelve months
respondents failed to make reasonable progress in addressing the
problems underlying their child's removal from the home, the North
Carolina Supreme Court recently held:
The legislature specifically delineated that
the reasonable progress evidentiary standard
be measured in a twelve-month increment, and
in our view, the twelve-month standard
envisioned by lawmakers was
within 12 months
from the time the petition
for termination of
parental rights is filed
with the trial court.
In re Pierce
, 356 N.C. at 75, 565 S.E.2d at 86 (emphasis added).
In the instant case, the petition for termination of parental
rights was filed 2 August 2001, so our focus is on respondents'
progress during the year preceding that date.
The record indicates that petitioners had an extensive
history with [respondents,] and that DSS had investigated 16
reports on [respondents] between 1990 and the date of the hearing.
In 1992, two reports of improper discipline of the juvenile's
sister were substantiated, and a petition was filed. Testimony
from a DSS social worker indicated that both respondents were
perpetrators of the improper discipline substantiated in 1992.
After the petition was filed in 1992, Ms. Baker attended parenting
classes. In 1996, two more reports of improper discipline of the
juvenile's sister were substantiated, and another petition was
filed against Ms. Baker. In 1997, DSS substantiated a report ofsexual abuse of the juvenile's sister by Mr. Baker, and the girl
was placed in DSS custody. The remaining investigations were
On 7 March 2000, DSS investigated a report that the juvenile,
then ten years old, had marks and bruises on his arms, back, and
legs. Melissa Cloer, a DSS social worker, examined the juvenile
at school and found linear belt marks [on] the inside of his
forearm[,] . . . linear marks on his back and on the front of his
left thigh. Later that day, Cloer went to respondents' home to
discuss the situation. When confronted about the marks on her son,
Ms. Baker began yelling at the juvenile that it was his fault
that DSS was at the house, because he had gone to school and run
his mouth. She stated that Mr. Baker had spanked the juvenile
with a belt because he had lied to his parents about tearing up
his underwear. When Mr. Baker arrived home, he admitted to
spanking the juvenile for tearing up his underwear. Meanwhile,
Ms. Baker continued to shout that she would not cooperate with DSS.
That evening, Cloer removed the juvenile from his home because he
had marks and bruises on him, the family had a history of improper
discipline, we'd offered services[, but] the mother stated that she
was going to continue to spank him and was not going to comply with
[DSS] and [at] that time we could not ensure his safety. . . .
The following day, respondents met with Cloer, who discussed
with them the steps they would have to take to regain custody of
the juvenile. Although respondents agreed to attend parenting
classes, they refused to call around and find out about them, and
at the time of the hearing on termination of parental rights,respondents had not completed parenting classes. Respondents also
refused to sign a DSS family plan for reunification. In April,
2000, respondents did attend a one-day workshop on child
discipline. However, respondents both refused to go to any type
of services offered by Johnston County Mental Health, either to be
evaluated, to obtain individual counseling, or to complete a Child
Abuse Potential Inventory. Their refusal to cooperate with
individual therapy is particularly significant given Cloer's
testimony that, although respondents had previously attended group
classes on parenting and discipline, bruises are continuing to be
left on the children. . . .
Ms. Baker has argued that she demonstrated reasonable progress
towards addressing the issues underlying the juvenile's placement
in foster care. We disagree. Attendance at a one-day workshop was
not evidence of any real effort on the respondent's part.
Moreover, Ms. Baker invalidated the results of the only diagnostic
test she completed by failing to give truthful answers; she
steadfastly refused to participate in counseling; and she would not
agree to change her methods of disciplining the juvenile. We also
reject Ms. Baker's argument that her improper discipline of the
juvenile is mitigated by the subsequent diagnosis that the juvenile
may be suffering from obsessive compulsive disorder. Respondent's
discipline was improper because it involved whipping the juvenile
with a belt, to the extent that marks and bruises resulted, not
because she lacked a complete understanding of his problems.
Mr. Baker also argues that he showed reasonable progress in
his case because he completed an anger management class. However,the therapist who conducted the course observed that Mr. Baker had
only a limited understanding of the concepts presented. This is
corroborated by the following testimony from Mr. Baker:
Q. And what are those [documents]?
A. Dealing with the anger management classes,
how you're supposed to whip your children
how you're supposed to discipline them. How
you're supposed to _ when you're angry and
supposed to whip them when you're mad.
got some true and false questions up here.
Extremely limited progress is not reasonable progress.
, 117 N.C. App. at 700, 453 S.E.2d at 224-25; see also In re
, 148 N.C. App. 228, 235-36, 558 S.E.2d 498, 502 (2002)
(upholding termination of parental rights order where [al]though
the respondent mother made some efforts, the evidence supports the
trial court's determination that she did not make sufficient
progress in correcting conditions that led to the child's
, 92 N.C. App. at 670, 375 S.E.2d at 681 (holding
trial court's finding was supported by clear, cogent, and
convincing evidence where although respondent has made some
progress in the areas of job and parenting skills, such progress
has been extremely limited).
The record evidence amply supports the trial court's finding
that respondents willfully left the juvenile in foster care . . .
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[.] Respondents have also challenged the trial court's
finding that they neglected the juvenile. However, [i]n light ofour holding that the trial court did not err in finding that
grounds exist to terminate respondent[s'] parental rights under
[N.C.G.S. § 7B-1111(a)(2)], we need not discuss the remaining . .
. grounds for termination asserted by petitioner. In re Brim
N.C. App. 733, 743, 535 S.E.2d 367, 373 (2000). Moreover,
respondents have not challenged the trial court's determination
that it was in the child's best interests for their parental rights
to be terminated. We conclude the trial court properly found the
existence of a statutory ground for termination of parental rights.
Judges WYNN and TIMMONS-GOODSON concur.
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