IN RE:
Cassidy Marie Brown Rowan County
DOB: 2/5/88 Nos. 00 J 194
Dylan Loren Taft Brown 00 J 195
DOB: 7/18/91
Minor Children.
RESPONDENT: Tambra Jo Beam Brown, Mother
Rowan County Department of Social Services, by Robert A.
Lester and David B. Wilson, for petitioner appellee.
Rebekah W. Davis for respondent appellant.
Nancy Gaines as Guardian ad Litem for petitioner appellee.
ELMORE, Judge.
Tambra Jo Beam Brown (respondent) appeals from an order
terminating her parental rights to her daughter Cassidy Marie Brown
(Cassidy), born 5 February 1988, and to her son Dylan Loren Taft
Brown (Dylan), born 18 July 1991. For the reasons set forth
herein, we affirm the trial court's order.
On or about 13 July 2000, the Rowan County Department of
Social Services (DSS) assumed custody of Cassidy and Dylan after
the mobile home in which they had been living with respondent was
destroyed by fire. Respondent was unemployed at the time. On 24July 2000, respondent, who was represented by counsel, and DSS
agreed to entry of a consent order whereby Cassidy and Dylan were
adjudicated neglected and dependent juveniles within the meaning of
N.C. Gen. Stat. § 7B-101 (2001). The consent order included the
following pertinent findings of fact:
. . . .
2) [Respondent], mother of the juveniles, abuses
prescription medications;
3) Due to her drug abuse, [respondent] has passed out
with a lit cigarette in her hand;
4) Due to her drug abuse, [respondent] has passed out on
numerous other occasions;
5) [Respondent] does not have a place for herself or her
children to live because her trailer burnt [sic] down;
6) [Respondent] has exercised a general lack of care and
supervision for her children;
7) The father of the juveniles is deceased;
. . . .
On 15 August 2000, respondent entered into a service plan with DSS
whereby she agreed to obtain a substance abuse assessment and
psychological evaluation; find and maintain stable housing and
employment; and enter into a child support order. Respondent, who
was incarcerated from October 2000 until February 2001, and again
from September 2001 until February 2002 on larceny and shoplifting
charges, failed to comply with the service plan to the extent
necessary to regain custody of Cassidy and Dylan. In the meantime,
DSS placed Cassidy in foster care with a former neighbor family,
the Proctors, and Dylan was placed in a children's home. On orabout 23 July 2001, the permanent plan for Cassidy and Dylan was
changed to termination of respondent's parental rights.
On 1 August 2001, after the juveniles had been in custody of
DSS for just over one year, DSS filed a petition to terminate
respondent's parental rights to Cassidy and Dylan. The trial court
reviewed the matter on or about 15 October 2001 and found that
because respondent had failed to make any substantial progress
towards reunification with her children, it was in the juveniles'
best interest for the permanent plan to remain termination of
parental rights.
A hearing on DSS' petition for termination of parental rights
was held on 28 January 2002. Respondent was present and
represented by counsel. At the hearing, Lasheka White (White),
Cassidy and Dylan's foster care social worker with DSS, testified
that respondent had failed to enter a child support order or pay
any portion of the cost of care for Cassidy and Dylan in the
eighteen months since DSS assumed custody of the juveniles,
although respondent did sometimes bring clothing to the children
during her visits. White further testified that respondent did not
comply with the service plan in that she only worked sporadically
and was unable to maintain employment; she completed only the first
half of her psychological evaluation and did not return for her
appointment to complete the second half; and other than completing
the DART program while incarcerated, she did not seek treatment for
her substance abuse or participate in the DART aftercare program.
White testified that respondent tested positive for a prescriptiondrug following a random drug screen on 27 April 2001, that she had
tested negative on a previous occasion, and that her opportunities
to administer further drug screens were limited by respondent's
frequent incarceration. White testified that respondent attended
fifteen of the thirty scheduled visitations with Cassidy and Dylan,
with three “no-shows” and the balance of the missed visitations due
to respondent's incarceration. White testified that she visited
the trailer where respondent was living in August 2001 and found it
to be an unsuitable home for the juveniles in that it lacked
running water, electricity, and bedding. White also testified that
Cassidy and Dylan were doing well in their respective placements
with the Proctor family and at the Nazareth Children's home, that
both were doing well in school, and that the Proctors were
interested in adopting both Cassidy and Dylan.
Respondent also testified at the hearing, stating that she has
not entered a child support order or paid any portion of the cost
of care for Cassidy and Dylan because she “wasn't never [sic] told
to go talk to nobody” and that “nobody's never [sic] referred me to
a child support agent.” Respondent was incarcerated at the time of
the hearing but testified that she expected to be released within
two weeks. Respondent testified that she planned to live in a
trailer on her father's land after her release; she stated that
while the trailer currently had no electricity or running water,
she planned to have those utilities connected. Respondent
testified that she intended to use “vocational rehab” to find a job
upon her release, and that she would be better able to maintainemployment now because she had undergone surgery to correct a knee
problem. Respondent acknowledged that her “main problem” was her
abuse of prescription drugs and she stated that she “feel[s] like
[she is] now, finally” dealing with that problem.
Perry DeWayne Proctor (Proctor), Cassidy's foster father,
testified that he and his wife want to adopt Cassidy and Dylan.
Proctor testified that he and his wife live in a five-bedroom house
and that they have three children at home, two boys and a girl ages
fourteen, twelve and eleven. Proctor testified that he and his
wife are both employed and that one or the other is generally at
home when the children return from school. Proctor testified that
Cassidy is doing well living in their home, and that Dylan's
visits, including a weeklong stay around Christmas, have gone well.
Richard Alden Beam (Beam), respondent's father, testified that
he has maintained contact with Cassidy and Dylan since DSS assumed
their custody, as well as with respondent during her most recent
incarceration. Beam testified that he “would like to see
[respondent] have [Cassidy and Dylan] back if possible,” but that
respondent first “needs to show the Court that . . . she's going to
straighten her life up” by “[g]etting off of the drugs and
maintaining a home for the children, a good environment, not with
some of the people that she associated with before.”
Based on the foregoing evidence, on 5 March 2002 the trial
court entered an order terminating respondent's parental rights to
Cassidy and Dylan. The trial court made the following pertinentfindings of fact, by clear, cogent and convincing evidence:
. . . .
4. . . . on July 24, 2000, by Consent, the juveniles
were adjudicated to be neglected and dependent
juveniles within the meaning of G.S. 7B-101(9)(15)
on the part of [respondent].
5. [Respondent] has willfully left the juveniles 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 juveniles in that: both children
were in the custody of [DSS] for twelve months as
of the time of the filing of the Petition and have
been in the custody of DSS [for] eighteen months at
the time of the hearing.
6. A service plan was entered between [respondent] and
the [DSS] . . . [Respondent] has not fully complied
with [the service plan, as follows]:
a. Employment: [Respondent] has maintained
sporadic employment but has been incarcerated
for much of the period that her children have
been in custody.
b. Psychological [E]valuation: [Respondent]
completed only the first half of an
evaluation.
c. Child Support: [Respondent] never entered a
Child Support Order.
d. Seek substance abuse treatment: [Respondent]
completed the DART program in the Department
of Corrections in February 2001. She did not
participate in any aftercare program as was
recommended by DART.
e. Visitation: [Respondent] visited the children
only sporadically when she was not
incarcerated.
f. Drug Screens: [Respondent] submitted to random
drug screens and tested positive in April,
2001 for prescription medication.
g. Residence: [Respondent] has failed to maintain
an appropriate residence. She continues to
own a mobile home that has no electricity and
no running water.
7. . . . [respondent], 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
juveniles although physically and financially able
to do so.
8. LaSheka White, the Social Worker assigned to these
children, summarized her testimony on [respondent]
by saying, whether she is in jail or not she can't
hold a job; she has not shown the ability to
nurture her children, and she has an unsuitable
home without water and electricity.
9. [Respondent] has a history of criminal activity and
incarceration. . . .
10. [Respondent's] father, Richard Beam, the maternal
grandfather of [Cassidy and Dylan], describes his
daughter as having a serious addiction to
prescription drugs. The only serious treatment for
her addiction comes involuntarily as a result of
incarceration. . . .
. . . .
13. The Court reviewed this matter on October 15, 2001
. . . and the Court found that it was in the best
interest of the juveniles for the permanent plan to
remain termination of parental rights and adoption
as [respondent] had failed to make any substantial
progress during the ninety day period since the
last review.
14. The Court takes judicial notice of all the Orders,
attached Court Reports and attached documents as
set forth in the Rowan County Juvenile Court
proceedings bearing the File Number 00 J 194 & 195
and all of the findings of facts, . . . are herein
adopted by this Court as findings of facts in this
proceeding and incorporated herein by reference . .
. as if set forth herein in full.
Based on the above-stated findings, the trial court entered the
following conclusion of law:
. . . .
2. That pursuant to G.S. 7B-1111 sufficient grounds
exist to terminate the parental rights of
[respondent], namely G.S. 7B-1111[(a)] (1)[,] (2)
[and] (3).
After reaching this conclusion, the order indicates that the trial
court “conduct[ed] a dispositional hearing on the issue of whether
it is in the minor children's best interest for the parental rights
of the Respondent to be terminated,” and that the trial court made
the following additional findings of fact:
. . . .
3. The children are in need of a permanent plan of
care at the earliest possible age, and this can be
accomplished only by the severing of the
relationship between the juvenile[s] and
[respondent] by termination of the parental rights
of the respondent.
4. The oldest of the two children in these actions[,]
. . . Cassidy[,] . . . is presently in the physical
custody of the Proctor foster home and Mr. and Mrs.
Perry Proctor have both expressed a desire to
adopt. Cassidy . . . has expressed both to her DSS
social worker and Guardian ad Litem that she [does]
not wish to return to [respondent's] home and wants
to be adopted by the Proctors. Dylan . . . is
presently in the physical custody of the Nazareth
Children's Home in Rowan County. . . . Dylan has
expressed his desire to live with his sister
Cassidy at the Proctor's home, and the Proctors
indicate their willingness to keep Cassidy and
Dylan together.
5. Both [DSS] and the Guardian ad Litem for the
children recommend the termination of
[respondent's] parental rights.
Based on the foregoing findings, the trial court further concluded
that “the grounds for termination exist and it is in the best
interest of the minor children, . . . for the parental rights of
[respondent] to be terminated and for [DSS] to begin the adoption
process in hopes that . . . Mr. and Mrs. Perry Proctor, can adopt
Cassidy and Dylan.” Respondent timely filed notice of appeal to
this Court on 15 March 2002. Respondent presents four assignments of error on appeal,
asserting (1) the trial court erred in concluding respondent
willfully failed to pay a reasonable portion of the costs of care
for her children, because the findings of fact do not support this
conclusion and because respondent was physically unable to make
such payments; (2) the evidence and findings of fact were
insufficient to support the trial court's conclusion that
respondent neglected her children; (3) the evidence and findings of
fact were insufficient to support the trial court's conclusion that
respondent willfully left her children in foster care for more than
twelve months without making reasonable progress; and (4) the trial
court erred in concluding that the termination of respondent's
parental rights was in her children's best interests. For the
reasons stated herein, we affirm the trial court.
A proceeding for termination of parental rights involves two
phases: (1) the adjudicatory phase, governed by section 7B-1109,
and (2) the dispositional phase, governed by section 7B-1110. See
N.C. Gen. Stat. §§ 7B-1109, 7B-1110 (2001); In re Huff, 140 N.C.
App. 288, 290, 536 S.E.2d 838, 840 (2000), disc. review denied, 353
N.C. 374, 547 S.E.2d 9-10 (2001). In the adjudication phase, the
petitioner must prove by “clear, cogent and convincing evidence”
the existence of one or more of the statutory grounds for
termination of parental rights set forth in section 7B-1111. N.C.
Gen. Stat. § 7B-1109(e) and (f) (2001); In re Montgomery, 311 N.C.
101, 110, 316 S.E.2d 246, 252 (1984). The clear, cogent and
convincing evidentiary standard is a more rigorous standard thanthe preponderance of the evidence standard, but not as rigorous as
the proof beyond a reasonable doubt requirement. See Montgomery at
109-10, 316 S.E.2d at 252. The trial court may properly terminate
parental rights on the basis of several different grounds, and “[a]
finding of any one of the . . . separately enumerated grounds is
sufficient to support a termination.” In re Pierce, 67 N.C. App.
257, 261, 312 S.E.2d 900, 903 (1984). In a proceeding to terminate
parental rights, this Court “should affirm the trial court where
the court's findings of fact are based upon clear, cogent and
convincing evidence and the findings support the conclusions of
law.” In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86
(1996).
In the case sub judice, the trial court concluded grounds
existed to terminate respondent's parental rights under section 7B-
1111(a)(2), which provides that parental rights may be terminated
upon a finding that “[t]he parent has willfully left the juvenile
in foster care or placement outside the home for more than twelve
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) (2001). Willfulness
under this section means something less than willful abandonment,
and does not require a finding of fault by the parent. In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996).
Willfulness may be found where a parent has made some attempt to
regain custody of the child but has failed to exhibit “reasonableprogress or a positive response toward the diligent efforts of
DSS.” Id. at 440, 473 S.E.2d at 398. “[A] respondent's
incarceration, standing alone, neither precludes nor requires
finding the respondent willfully left a child in foster care.” In
re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987).
In this case, it is undisputed that both Cassidy and Dylan had
been left in foster care or placement outside the home for
approximately eighteen months at the time of the termination
hearing. Respondent contends the trial court's conclusion that she
willfully left the juveniles in DSS custody during this period
without showing reasonable progress in correcting the conditions
which led to the juveniles' removal is not supported by sufficient
evidence or findings of fact. After a careful review of the
record, we find this assignment of error to be without merit.
The record shows that Cassidy and Dylan were adjudicated to be
neglected and dependent juveniles by consent order entered 24 July
2000, less than two weeks after DSS assumed their custody.
According to the consent order's findings of fact, which were
incorporated by reference into the termination order, respondent
acknowledged at that time abusing prescription drugs which caused
her to pass out under circumstances potentially injurious to the
juveniles, and having no place for herself or her children to live.
Social worker White testified that respondent and DSS shortly
thereafter agreed to a service plan whereby respondent agreed that
to be considered for reunification, she would maintain stable
employment and a suitable residence, obtain substance abuse andpsychological evaluations, and enter a child support order. In the
termination order's finding of fact number six, the trial court
found that since agreeing to the service plan, respondent had (1)
been only sporadically employed; (2) completed only half of a
psychological evaluation; (3) never entered a child support order;
(4) failed to participate in the DART aftercare program or any
other substance-abuse treatment program outside of incarceration;
(5) visited the juveniles sporadically; (6) tested positive once
for a prescription medication; and (7) failed to maintain an
appropriate residence, currently owning a mobile home with no
electricity or running water. The trial court also found that
respondent was incarcerated for approximately nine of the eighteen
months Cassidy and Dylan were placed outside the home, and that
respondent was incarcerated at the time of the termination hearing.
The trial court's findings were supported by testimony at the
termination hearing from White, respondent's father, Beam, and
respondent herself. While respondent testified that she completed
the DART program during her most recent incarceration, that she
“feel[s] like [she is] now, finally” dealing with her substance
abuse, and that she plans to get a job and connect the utilities on
her mobile home after her release from the Department of
Corrections, we conclude that the foregoing constitutes clear,
cogent, and convincing evidence that respondent has failed to show
reasonable progress or a positive response to the diligent efforts
of DSS. See Oghenekevebe, 123 N.C. App. at 440, 473 S.E.2d at 398
(finding of willfulness not precluded simply because parent hasmade some efforts to regain custody); In re Nolen, 117 N.C. App.
693, 700, 453 S.E.2d 220, 224-25 (1995) (“[e]xtremely limited
progress is not reasonable progress . . . not only must positive
efforts be made towards improving the situation, but . . . these
efforts [must be] obtaining or have obtained positive results.”)
We hold that the evidence is sufficient to support the trial
court's findings of fact, and that these findings of fact are
sufficient to support its conclusion that respondent willfully left
Cassidy and Dylan in DSS custody during this period without showing
reasonable progress in correcting the conditions which led to the
juveniles' removal from her custody. Respondent also challenges
the trial court's conclusions that she willfully failed to pay a
reasonable portion of the cost of her children's care and that she
neglected her children. However, “[i]n light of our holding that
the trial court did not err in finding that grounds exist to
terminate respondent's parental rights under [N.C. Gen. Stat. § 7B-
1111(a)(2)], we need not discuss the remaining . . . grounds for
termination asserted by petitioner.” In re Brim, 139 N.C. App.
733, 743, 535 S.E.2d 367, 373 (2000).
By her final assignment of error, respondent contends the
trial court abused its discretion in concluding that it was in the
best interests of Cassidy and Dylan to terminate respondent's
parental rights. We disagree.
“Once the court has determined that grounds for terminating
parental rights are present, the court then 'moves to the
disposition stage to determine whether it is in the best interestsof the child to terminate the parental rights.'” In re Leftwich,
135 N.C. App. 67, 71, 518 S.E.2d 799, 802 (1999) (quoting In re
Young, 346 N.C. 244, 247, 485 S.E.2d 612, 615 (1997)). Upon
finding adequate grounds for termination of parental rights, the
petitioner and respondent may each offer relevant evidence as to
the child's best interests. In re Pierce, 356 N.C. 68, 76, 565
S.E.2d 81, 86 (2002). “Such evidence may therefore include facts
or circumstances demonstrating either: (1) the reasonable progress
of the parent, or (2) the parent's lack of reasonable progress that
occurred before or after the twelve-month period leading up to the
filing of the petition for termination of parental rights.” Id. at
76, 565 S.E.2d at 86-87. We review the trial court's decision to
terminate parental rights on an abuse of discretion standard. See
In re Brim, 139 N.C. App. at 745, 535 S.E.2d at 374; see also In re
Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).
Here, the evidence supports a finding and conclusion that
respondent willfully left Cassidy and Dylan in foster care or
placement outside the home for more than twelve months without
showing reasonable progress towards correcting the conditions which
led to the juveniles' removal from her custody. Social worker
White testified that Cassidy and Dylan are doing well in their
respective placements, Cassidy with the Proctors and Dylan at the
Nazareth Children's Home, and that both are doing well in school.
Moreover, Perry Proctor testified that he and his wife want to
adopt Cassidy and Dylan. Proctor testified that Cassidy and Dylan
get along well with their other children, and Proctor's testimonydepicted a stable home environment with adequate support and
supervision. Respondent's father, Beam, testified that respondent
still needs to deal with her substance abuse, maintain a suitable
home, and “not [associate] with some of the people that she
associated with” before the juveniles should be returned to
respondent's custody. Based on the record, we cannot say that the
trial court abused its discretion in finding and concluding it was
in the best interests of Cassidy and Dylan to terminate
respondent's parental rights. This assignment of error is
overruled.
We hold that the trial court did not err in terminating
respondent's parental rights to Cassidy and Dylan.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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