Appeals by respondents from order signed 18 March 2003
(See footnote 1)
by
Judge H. Thomas Jarrell, Jr. in Guilford County District Court.
Heard in the Court of Appeals 9 June 2004.
Michael K. Newby for petitioner-appellee Guilford County
Department of Social Services; and Attorney Advocate Joyce
Terres for the Guardian Ad Litem Program-appellee.
M. Victoria Jayne for respondent-appellant mother.
Robert W. Ewing for respondent-appellant father.
BRYANT, Judge.
J.R. (respondent mother) and J.B. (respondent father) appeal
an order signed 18 March 2003 terminating their parental rights as
to their minor child J.E.P.
On 15 March 2001, the Department of Social Services (DSS)
filed a petition alleging 4½ month old J.E.P. was a neglected and
dependent minor child in that she tested positive for marijuana at
birth, and the mother admitted breast feeding J.E.P. even though
she continued to use marijuana during that time. An orderadjudicating J.E.P. neglected and dependent was entered 2 May 2001,
and J.E.P. was placed in the custody of DSS. On 11 July 2002, DSS
filed a petition to terminate the parental rights of respondents.
Following hearings conducted on 6 January 2003, 13 January 2003, 3
February 2003, and 6 February 2003, the parental rights of both
respondents were terminated. Respondents both gave timely notice
of appeal.
Standard of Review
There are two stages of a hearing on a petition to terminate
parental rights: adjudication and disposition. At the adjudication
stage, the petitioner has the burden of proving by clear, cogent,
and convincing evidence that at least one statutory ground for
termination exists.
In re McMillon, 143 N.C. App. 402, 408, 546
S.E.2d 169, 173-74 (2001). A finding of one statutory ground is
sufficient to support the termination of parental rights.
In re
Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). Upon a
finding that at least one statutory ground for termination exists,
the district court proceeds to the disposition stage, where it
determines whether termination of parental rights is in the best
interests of the child.
McMillon, 143 N.C. App. at 408, 546 S.E.2d
at 174.
When reviewing an appeal from an order terminating parental
rights, our standard of review is whether: (1) there is clear,
cogent, and convincing evidence to support the district court's
findings of fact; and (2) the findings of fact support the
conclusions of law.
In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d838, 840 (2000). Clear, cogent, and convincing evidence “is
greater than the preponderance of the evidence standard required in
most civil cases, but not as stringent as the requirement of proof
beyond a reasonable doubt required in criminal cases.”
In re
Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984).
If the decision is supported by such evidence, the district
court's findings are binding on appeal even if there is evidence to
the contrary.
In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d
317, 320 (1988). Moreover, when a party does not specifically
assign as error findings of fact that are allegedly unsupported by
competent evidence, those findings are presumed supported by
competent evidence.
In re Beasley, 147 N.C. App. 399, 405, 555
S.E.2d 643, 647 (2001). The district court's determination that
termination of parental rights would be in the best interest of the
child is reviewed applying an abuse of discretion standard.
In re
Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
_________________________
The issues on appeal are whether the district court erred in
finding and concluding: (1) the child was neglected; (2)
respondents have not made reasonable progress under the
circumstances to correct the conditions that led to the removal of
the child; and (3) respondents willfully failed to pay a reasonable
portion of the cost of care for the child. Additionally,
respondent father argues that the district court erred in finding
that he failed to judicially establish paternity.
I
Finding only one of the statutory grounds under N.C. Gen.
Stat. § 7B-1111(a) is sufficient to support the termination of
parental rights.
Pierce, 67 N.C. App. at 261, 312 S.E.2d at 903.
In the instant case, the district court found: (1) the child was
neglected (§ 7B-1111(a)(1)); (2) respondents left the child in
foster care for more than twelve months without showing that they
made reasonable progress under the circumstances within twelve
months to correct the conditions that led to the removal of the
child (§ 7B-1111(a)(2)); and (3) for a continuous period of six
months prior to the filing of the petition, respondents willfully
failed to pay a reasonable portion of the cost of care for the
child (§ 7B-1111(a)(3)). Here, we will focus on the district
court's findings as grounds to terminate pursuant to N.C. Gen.
Stat. § 7B-1111(a)(2).
Section 7B-1111(a)(2) provides for termination of parental
rights if “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) (2003);
In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81,
86 (2002) (the twelve-month period envisioned by the legislature
consists of the twelve months leading up to the filing of the
petition for termination of parental rights). 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 an attempt to
regain custody of the child but has failed to exhibit “reasonable
progress or a positive response toward the diligent efforts of
DSS.”
Id. at 440, 473 S.E.2d at 398;
see Nolen, 117 N.C. App. at
700, 453 S.E.2d at 225 (“implicit in the meaning of positive
response is that not only must positive efforts be made towards
improving the situation, but that these efforts are obtaining or
have obtained positive results”). This Court has held that
“extremely limited progress is not reasonable progress.”
Nolen,
117 N.C. App. at 700, 453 S.E.2d at 224-25. This standard operates
as a safeguard for children. If parents were not required to show
both positive efforts and positive results, “a parent could
forestall termination proceedings indefinitely by making sporadic
efforts for that purpose.”
Id. at 700, 453 S.E.2d at 225.
Here, neither respondent specifically assigned as error any of
the findings concerning this ground for termination; therefore,
they are binding on appeal.
See Beasley, 147 N.C. App. at 405, 555
S.E.2d at 647;
Huff, 140 N.C. App. at 291, 536 S.E.2d at 840;
In re
Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985). The
findings are as follows:
3. The Court finds that the juvenile was
adjudicated neglected and dependent on
March 22, 2001 due to the parents'
substance abuse issues and non-
cooperation with social services efforts.
4. . . . Both respondents entered into a
service agreement on April 4, 2001 in
which they agreed to:
(a) Complete an assessment at
Alcohol Drug Services (ADS)
within 2 weeks and comply with
any treatment recommendations;
(b) Complete the Crossroads Group
program for domestic violence
counseling;
(c) Not engage in disputes with
each other;
(d) Attend and complete a parenting
assessment and comply with all
recommendations;
(e) Maintain stable housing and
inform DSS of any changes with
72 hours;
(f) Obtain and maintain employment
and inform DSS of any changes
within 72 hours;
(g) Attend and complete all
appointments to complete a
parenting assessment;
(h) Schedule and attend individual
counseling [at] Guilford Mental
Health; [and]
(i) Attend all supervised
visitation.
5. The Respondents did not fully comply with
the terms of the service agreement
however the respondent parents did attend
a parenting class and the mother
eventually did attend the appointments
necessary to complete the Parenting
Assessment but only after it was re-
scheduled twice. However the Respondents
failed to comply with . . . the other
terms and the service agreement was
updated on May 18, 2001 and then on
November 11 with [the mother] but [the
putative father] refused to update his
agreement. [The mother's] agreement had
the same requirements since she had not
yet accomplished those goals. However
she did eventually get an ADS assessment
and obtain treatment and she completed
the Crossroads Group for domestic
violence counseling after November of
2001.
6. The [mother] also failed to comply with
the November service agreement and DSS
was unable to update the agreementsbecause of the unavailability of the
[mother] in December of 2001 and January
of 2002 and it was not until May of 2002
that [the mother] signed an updated
service agreement. [The putative father]
never participated in re-unification
efforts after failing to comply with the
initial agreement.
7. The respondent mother's May 2002 service
agreement was similar in terms to the
previous agreements except that it added
as terms that:
(a) The mother was to attend NA/AA;
(b) Comply with the LEAP
(employment assistance)
program;
(c) Pay child support; [and]
(d) Provide documentation
concerning her pending criminal
matter.
8. The respondent mother also failed to
fully comply with the terms of this
service agreement. She did not comply
with the LEAP Program, she has not
obtained and maintained stable
employment, she has not consistently paid
child support, and she has not remained
drug free as she has tested positive for
marijuana in June 7, 2002 to go along
with her previous positive tests for
marijuana or cocaine on 8/17/01, 1/11/02
and 1/17/02.
. . . .
10. The Court finds that the respondent
mother was originally in an ADS program
before [J.E.P.] came into care and was
discharged unsuccessfully, then had been
in the intensive 10 Day Treatment
program. Further since [J.E.P.] has been
in care, [the mother] has been in the
Woman's Group twice, discharged once
unsuccessful [sic] and once successful
[sic]. Finally [the mother] was in the
Aftercare program when she relapsed in
May. After a meeting between the DSS
representatives, ADS personnel and the
mother and her attorney, it was decidedin June of 2002 that she would return to
the Woman's Group for the third time but
she did not follow through with the
necessary procedures for re-entry into
the program and she was dropped from
participation due to non-cooperation.
The Court finds that the mother entered a
program in Rowan County which was similar
to ADS in September of 2002. The
Respondent mother had not fully revealed
her extensive drug history in the intake
application and a representative from
that program testified that they may have
to re-assess her treatment due to the
revelations concerning her prior cocaine
use. The mother admitted that as of the
date of the hearing she still had a
persistent drug problem. The Court also
finds that [the putative father] never
fully participated in any drug program
beyond intake at ADS and that he has
continued to test positive for cocaine
and marijuana.
. . . .
12. The Court finds that the respondents have
not fully cooperated with the Department
of Social Services during the time the
juvenile has been in custody.
Specifically, the father has not
complied with a service agreement, has
not maintained contact with the social
worker and has not always been available
for drug testing on a consistent basis.
Specifically, the mother has not complied
with any of her service agreements, has
not maintained consistent contact with
her social worker, has demonstrated a
pattern of deception throughout the
course of the time [J.E.P.] has been in
custody up to the date of the hearing.
These findings support the conclusion that respondents failed
to make reasonable progress under the circumstances within twelve
months to correct the conditions that led to the removal of the
child. This assignment of error is overruled.
II
Next, respondent father argues that the district court erred
in finding that he failed to judicially establish paternity.
(See footnote 2)
There are several procedures by which a putative father may
judicially establish paternity when a child is born out of wedlock,
including: (1) filing an affidavit in the central registry of the
Department of Human Resources; (2) legitimating the child (or
filing a petition to do so) pursuant to N.C. Gen. Stat. § 49-10, or
filing a civil action pursuant to N.C. Gen. Stat. § 49-14; (3)
marrying the mother; or (4) providing substantial financial support
or consistent care to the child and mother. N.C.G.S. § 7B-
1111(a)(5) (2003).
Here, the trial court found that prior to the filing of the
petition to terminate, respondent father had not undertaken any of
the aforementioned procedures to have his paternity judicially
established. Respondent father has not presented any evidence thatpaternity had been judicially determined, nor does the record
reflect such evidence. Our review is limited to the cold record on
appeal, and without any presentation of evidence that respondent
father did in fact judicially establish paternity, this assignment
of error is overruled.
Forrest v. Pitt County Bd. of Educ., 100
N.C. App. 119, 123, 394 S.E.2d 659, 662 (1990) (stating this
Court's review is limited to evidence which appears in the record
on appeal, and this Court cannot speculate that there was
prejudicial error);
see also Britt v. Britt, 49 N.C. App. 463, 469,
271 S.E.2d 921, 926 (1980).
Affirmed
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1