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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: D.M.
Filed: 5 July 2005
Termination of Parental Rights--failure to make reasonable progress toward correcting
conditions that led to removal--clear, cogent, and convincing evidence
The trial court did not err by terminating respondent father's parental rights even though
respondent contends that the trial court ignored positive evidence regarding his attempts to
correct those conditions which led to his child's removal, because there was clear, cogent, and
convincing evidence to support the trial court's findings and conclusions that: (1) domestic
violence counseling was the focal point of respondent's case plan, respondent's participation in
the New Options for Violent Actions Program (NOVA) was the key to successfully completing
the case plan, and respondent did not complete the NOVA program; and (2) although respondent
claims to have sought private counseling, there was no evidence in the record from the counselor
regarding the substance of the counseling or treatment and it is unclear from the record that
domestic violence was even the central focus of the limited counseling respondent attended.
Judge TYSON dissenting.
Appeal by respondent from order entered 8 October 2003, nunc pro tunc
25 September 2003,
by Judge Avril U. Sisk in Mecklenburg County District Court. Heard in the Court of Appeals 21
Mecklenburg County Attorney's Office, by J. Edward Yeager, Jr.,
appellee Mecklenburg County Department of Social Services.
David Childers for respondent-appellant.
MARTIN, Chief Judge.
Respondent father appeals from an order terminating his
parental rights as to his minor son, D.M.,
19 August 1999.
For the reasons which follow, we affirm the order of the trial
On 11 June 2001, the Mecklenburg County Youth and Family
Services, a division of the Mecklenburg County Department of Social
Services (DSS) filed a petition alleging that D.M. was aneglected and dependent juvenile in that he lived in an environment
injurious to his health, did not receive proper care or
supervision, and did not receive proper medical care. In the
petition, DSS alleged that a history of domestic violence existed
between respondent and D.M.'s mother, and that both respondent and
the child's mother had violated protective orders put in place to
protect the mother and her children, including D.M. DSS took
custody of D.M. by non-secure custody order and placed him with his
On 28 August 2001, nunc pro tunc
23 July 2001, D.M. was
adjudicated a neglected and dependent juvenile as to his mother.
The case was continued as to respondent to allow for paternity
testing. On 31 July 2001, respondent entered into a case plan with
DSS, in which he agreed to participate in a domestic violence
program entitled New Options for Violent Actions (NOVA), and
follow all recommendations in order to learn about the effects of
domestic violence on his child and the child's mother. On 7 March
2002, nunc pro tunc
28 February 2002, D.M. was adjudicated
neglected and dependent as to respondent.
On 25 July 2002, DSS filed a petition to terminate
respondent's parental rights. As grounds for termination, the
alleged: (1) D.M. had been in the custody of DSS for more
than six months and respondent had willfully failed to pay a
reasonable portion of the cost of child care; and (2) respondent
had willfully left D.M. in foster care for more than twelve months
without showing to the satisfaction of the court that reasonableprogress had been made towards correcting those conditions which
led to D.M.'s removal.
Accordingly, DSS argued that it was in the
best interests of the child that respondent's parental rights be
On 31 July 2003 and 25 September 2003, hearings were held on
the petition to terminate respondent's parental rights, during
which DSS offered evidence tending to show the following: Kathy
Broome, case management supervisor for the Mecklenburg County NOVA
program, testified that respondent had been enrolled in the NOVA
program on three separate occasions, but had been terminated from
the program each time. According to Ms. Broome, the NOVA program
required respondent to attend [a] group [session] once a week for
two hours, take responsibility for his domestic violence behaviors,
and not violate any of the program rules. Ms. Broome testified
respondent began his most recent enrollment in the program on 9
March 2002, but was sent home during the following session because
he was so angry and defensive and unwilling to listen. During
the 23 March 2002 session, respondent was again asked to leave
after he brought a tape recorder to the group and attempted to
secretly record the session in violation of NOVA rules. Respondent
was subsequently terminated from the program. During his
enrollment at NOVA, Ms. Broome stated respondent severely
minimized his part in [incidents of domestic violence]. Ms.
Broome testified respondent
refuses to accept any kind of feedback. He is
not taking full responsibility for his
behaviors. That was the first problem. And
then he's not willing to accept any feedbackor any ways that he can make changes in his
life. He's not interested in making changes
from what I can see. He's more interested in
finding other people to blame for his
Ms. Broome classified respondent as being at high risk to re-
Respondent testified that following his latest termination
from the NOVA program, he sought private counseling with Mr. Larry
Shullman. Respondent stated he attended six counseling sessions
with Mr. Shullman, during which he discussed the trouble I was
having in our home . . . . the trouble with temper. Try to walk
away from people who keep on starting trouble. There was a lot of
stuff I talked to him about. You know, about my job situation, you
know, other things. Mr. Shullman did not testify.
Belinda McLaughlin, a social worker with DSS, testified she
spoke with Mr. Shullman and was only able to verify that respondent
attended four counseling sessions with him. Ms. McLaughlin stated
this time was insufficient to properly address respondent's issues
of domestic violence. Respondent offered no other evidence of his
compliance with the DSS case plan.
Following presentation of the evidence, the trial court
concluded that respondent had willfully left D.M. in foster care
for more than twelve months without showing to the satisfaction of
the court that reasonable progress had been made towards correcting
those conditions which led to his removal.
Accordingly, the trial
court concluded that it was in the best interests of the juvenile
that respondent's parental rights be terminated.
the trial court erred by granting the
petition to terminate his parental rights because the allegations
were not proven by clear, cogent and convincing evidence
Respondent contends the trial court ignored positive evidence
regarding his attempts to correct those conditions which led to his
Respondent cites evidence that he completed
parenting classes, sought private counseling, obtained employment,
and enjoyed visitation with his son. Respondent concedes that he
did not complete classes with NOVA, but contends he was treated
After careful review of the record, briefs and
contentions of the parties, we affirm the order of termination.
Section 7B-1111 of the North Carolina General Statutes sets
out the statutory grounds for terminating parental rights. See
N.C. Gen. Stat. § 7B-1111 (2003). A finding of any one of the
separately enumerated grounds is sufficient to support a
termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). [T]he party petitioning for the termination must
show by clear, cogent, and convincing evidence that grounds
authorizing the termination of parental rights exist. In re
Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997).
In the case sub judice, the trial court concluded that
had willfully left D.M. in foster care for more than
twelve months without showing to the satisfaction of the court that
reasonable progress had been made towards correcting thoseconditions which led to the child's removal.
See N.C. Gen. Stat.
§ 7B-1111(a)(2) (2003). The evidence in the record supports the
trial court's findings and conclusion.
Respondent had a history of
engaging in domestic violence with the child's mother which led to
the child's removal. Due to the issue of domestic violence,
respondent agreed to complete an assessment with NOVA, to learn
about the effects of domestic violence on his child, and follow all
recommendations. Domestic violence counseling was the focal point
of his case plan, and respondent's participation in NOVA was the
key to successfully completing the case plan. Respondent, however,
did not complete the NOVA program. Although respondent claims to
have sought private counseling with Larry Shullman, there was no
evidence in the record from Mr. Shullman regarding the substance of
the counseling or treatment. Indeed, it is unclear from the record
that domestic violence was even the central focus of the limited
counseling respondent attended with Mr. Shullman. Respondent
testified he spoke with Mr. Shullman about various topics,
including employment issues. Thus, we conclude there was clear,
cogent and convincing evidence in the record to support the trial
court's findings and conclusion that respondent had failed to make
reasonable progress towards correcting the conditions that led to
, the order terminating respondent's
parental rights is affirmed.
Judge LEVINSON concurs.
TYSON, Judge dissenting.
The majority's opinion affirms the trial court's order to
terminate respondent's parental rights for failure to make
reasonable progress towards correcting the conditions that resulted
in D.M.'s removal. I respectfully dissent.
I. Standard of Review
An order terminating parental rights will be upheld if there
is clear, cogent, and convincing evidence to support the findings
of fact and those findings of fact support the trial court's
conclusions of law. In re Clark, 159 N.C. App. 75, 83, 582 S.E.2d
657, 662 (2003) (citing In re Oghenekevebe, 123 N.C. App 434, 439,
473 S.E.2d 393, 398 (1996)). The clear, cogent, and convincing
evidence standard 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) (citing Santosky v. Kramer, 455 U.S.
745, 745, 71 L. Ed. 2d 599, 599 (1982)). The burden of proof rests
on DSS to provide clear, cogent, and convincing evidence to justify
termination of respondent's parental rights. In re Nolen, 117 N.C.
App. 693, 698, 453 S.E.2d 220, 223 (1995) (citations omitted).
II. Reasonable Progress
The trial court concluded respondent left D.M. in foster care
for more than twelve months without showing to the satisfaction of
the court reasonable progress had been made to correct the
conditions which led to D.M.'s removal. N.C. Gen. Stat. § 7B-1111(a)(2) (2003) provides grounds for
the termination of parental rights, in pertinent part:
The court may terminate the parental rights
upon . . . finding . . . [t]he 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 . . . .
Reasonable efforts can include a positive response toward
improving [a] situation[,] the ability of respondent to care
for [his] child, or the [ability] to show progress in . . .
therapy. In re Oghenekevebe, 123 N.C. App. at 437, 473 S.E.2d at
To uphold the trial court's order, we must find that the
respondent's failure was willful, which is established when the
respondent had the ability to show reasonable progress but was
unwilling to make the effort. In re Shermer, 156 N.C. App. 281,
289, 576 S.E.2d 403, 409 (2003) (citing In re Fletcher, 148 N.C.
App. 228, 235, 558 S.E.2d 498, 502 (2002)); see In re Nolen, 117
N.C. App. 693, 453 S.E.2d 220 (willful failure to make progress
where the respondent's alcoholism and abusive living arrangement
continued for three and one-half years while the children were in
foster care); In re Bluebird, 105 N.C. App. 42, 411 S.E.2d 820
(1992) (willful failure to make reasonable progress where the
mother left her child in foster care for eighteen months, was
unemployed, lived with her abusive boyfriend, and did not attemptto improve her parenting skills).
Respondent's case plan objectives included: (1) complete the
NOVA program; (2) attend visits with D.M.; (3) pay child support;
and (4) stay away from D.M.'s mother, half-brothers, and half-
A. NOVA Program
The trial court found as fact respondent did not complete
objective one, the NOVA program. The NOVA classes were to assist
respondent in dealing with issues of domestic violence. Respondent
began the NOVA program on three occasions. On the third attempt,
respondent attended two or three sessions before he was terminated
from the program because he brought a tape recorder with him.
Respondent claims he was treated unfairly during the NOVA classes
and brought in the tape recorder to prove his unfair treatment.
Respondent claims the case manager insisted he admit to allegations
he had perpetrated domestic violence in order to continue his
participation in the program. After being excluded from NOVA,
respondent sought and received alternative counseling with Larry
Shulman (Shulman) of Charlotte Professional Counseling Center to
deal with issues of domestic violence. Shulman stated respondent
was open in his discussions about domestic violence, seeing himself
as a victim of domestic violence by D.M.'s mother and calling
Schulman when he was stressed or when his back was against the
wall. Respondent also attended and completed parenting classes
and attended some of the counseling sessions with D.M., D.M.'smother, and her other children.
The trial court found as fact respondent presented no evidence
from Shulman to show the extent of his counseling. However, the
record shows respondent signed a release to allow Shulman to
discuss his treatment with his case worker. Additionally, the case
worker received a report from Shulman regarding respondent and
noted this in a reasonable efforts report. The trial court failed
to consider or make findings on this evidence in its order.
N.C. Gen. Stat. § 7B-1111(a)(2) requires reasonable progress
by the parent to correct the conditions which led to removal of the
child. Here, respondent substantially complied with the case
management order. The trial court ordered respondent to complete
NOVA classes to address issues of domestic violence. Respondent
did attend these sessions, but was excluded from participation.
When NOVA proved to be an inadequate setting for respondent, he
sought alternative treatment for domestic violence with Shulman.
Respondent should not be bound by a single source provider to seek
to overcome the issues that led to the child's removal. Respondent
also sought alternative treatment by attending parenting classes
and some counseling sessions. Respondent did not ignore the case
management order after leaving the NOVA program, but rather made a
conscious and concerted effort to comply by seeking alternative
counseling. No clear, cogent, and convincing evidence supports a
finding that respondent did not make reasonable progress with his
domestic violence counseling. His failure to complete NOVA,
standing alone, is not clear, cogent, and convincing evidence tosupport a contrary finding, where he was required to admit he had
perpetrated domestic violence as a condition of continued
participation in NOVA.
The second objective of the case management order for
respondent to attend visitations with D.M. was fully completed.
Respondent visited D.M. on a weekly basis during the months of 5
July 2002 through 22 November 2002. Visits temporarily ceased from
6 December 2002 through 25 April 2003 because of problems with
D.M.'s mother and her family filing complaints including
communicating threats, restraining orders, and assault charges.
However, visits were resumed on a biweekly basis once the problems
with D.M.'s mother and her family ceased. On 6 June 2003,
respondent received approval to visit D.M. once per week. The
social worker assigned to D.M.'s case noted in her report, the
visits have been pleasant for everyone.
Another social worker, Ms. Clark-Moser, supervised visits and
testified respondent provided food for D.M. on every visit and
always hugged, kissed, and buckled D.M. into his seat at the end of
every visit. Respondent expressed concern over D.M.'s well being
during his visits. Ms. Clark-Moser testified respondent: (1)
complained D.M.'s shorts were too large for him on one occasion,
requiring a pin to hold them up; (2) expressed concern about D.M.'s
clothes being dirty; (3) expressed concern about a hole in D.M.'s
shoe; (4) expressed concern about a scar on D.M.'s knee; (5)complained about a hole in D.M.'s sock; (6) went to his car and
retrieved an antiseptic to treat a mosquito bite on D.M.'s face;
(7) complained D.M.'s clothes were too small; (8) inquired as to
why D.M. never wore shoes respondent bought for him; (9) again
complained about D.M. wearing old shoes with a hole in them; (10)
purchased a new pair of shoes for D.M.; (12) provided a picnic for
D.M.; and (13) provided a bed and mattress for D.M.
The trial court noted respondent used his cell phone during a
visit and labeled this conduct inappropriate behavior. However,
respondent complied with the case management order, attended
visitations regularly, and the social worker observed a warm,
affectionate relationship between father and son. Under N.C. Gen.
Stat. § 7B-1111(a)(2), DSS failed to prove by clear, cogent, and
convincing evidence that respondent failed to make reasonable
progress during his visits with D.M.
C. Child Support
Respondent paid child support in order to comply with
objective three of the case management order. Respondent was
ordered by the court to pay monthly child support payments
beginning 1 January 2002. Respondent paid the monthly child
support. At the time of the hearing in the Summer 2003,
respondent's arrearage was only $88.47. D.M.'s mother's arrearage
totaled $1,085.75. The trial court's finding of fact stated,
neither parent has paid child support as ordered by the court.
This finding is not supported by any evidence and certainly not bythe required standard of clear, cogent, and convincing evidence
regarding respondent's failure to pay child support. Respondent
made reasonable and substantial progress in providing support for
D.M. and complied with objective three of his case management
D. Contact with D.M.'s Mother
The final objective for respondent in the trial court's case
management order was to avoid contact with D.M.'s mother and her
other children. The court did not find or conclude respondent's
non-compliance with this condition as a basis to terminate his
In order for this Court [t]o uphold the trial court's order,
we must find that the respondent's failure [to make reasonable
progress] was willful[.] In re Shermer, 156 N.C. App. at 289, 576
S.E.2d at 409. The word willful as applied in termination
proceedings . . . has been defined as 'disobedience which imports
knowledge and a stubborn resistance.' In re Pope, 144 N.C. App.
32, 44, 547 S.E.2d 153, 160 (quotation omitted), aff'd per curiam
354 N.C. 359, 554 S.E.2d 644 (2001). 'Willful' has also been
defined as 'doing an act purposely and deliberately.' Id.
Respondent's conduct does not show he willfully failed to
comply with the case management order. Respondent's reasonable
efforts are shown by his substantial compliance with all conditionsof the order to retain his parental rights.
Respondent's reasonable progress included a positive response
towards improving the situation which led to removal of his child,
showing his ability to care for D.M., obtaining employment,
attending parenting classes, receiving counseling, and paying child
support. Respondent did not display disobedience which imports
knowledge and a stubborn resistance. In re Pope, 144 N.C. App. at
44, 547 S.E.2d at 160 (quotation omitted). Rather, respondent
displayed a willingness to accomplish the tasks necessary to
reunite himself and D.M., despite D.M.'s mother and her family's
attempts to obstruct and frustrate respondent's efforts.
Respondent made reasonable and substantial efforts to correct
the conditions which led to D.M.'s removal. See In re Nesbitt, 147
N.C. App. 349, 555 S.E.2d 659 (2001) (The respondent's progress in
safety and parenting skills, housing, and employment were evaluated
over a twenty-seven month period. Reasonable efforts were found
where the respondent attended therapy and coping skills group;
selected appropriate television shows and provided toys and
physical safety for child; attempted to recognize and improve
reactions to child; secured and lived in a new home for almost one
year after being evicted, living in a hotel, and living in other
temporary arrangements; maintained child support payments; and
continued efforts to secure employment although the respondent held
approximately seven jobs since the child had been removed.)
Here, respondent sought alternative counseling for hisdomestic violence issues, attended and completed parenting classes,
attended some counseling sessions with D.M., D.M.'s mother, and her
other children, attended regular visitations with D.M. at which he
displayed affection and concern for D.M.'s well being, and paid
child support. NOVA's requirement that respondent admit he was the
perpetrator of domestic violence as a condition of his continued
participation in the program was unreasonable. Respondent's
attempt to tape record his sessions, standing alone, also is not a
reasonable basis to terminate his participation in the program.
While we recognize that the trial court is perhaps in the best
position to evaluate the evidence in these very sensitive cases and
are mindful of the need for permanency for young children; we
believe that the law requires compelling evidence to terminate
parental rights. In re Nesbitt, 147 N.C. App. at 361, 555 S.E.2d
at 667. Here, no clear, cogent, and convincing evidence supports
termination of respondent's parental rights for failure to make
Respondent submitted to paternity testing to establish his
rights as D.M.'s father. Respondent voluntarily entered into a
case plan with DSS and participated in multiple hearings to be
reunited with his son. The record clearly shows respondent's
substantial progress in or completion of all objectives of the case
plan. No clear, cogent, and convincing evidence in the record
shows respondent did not make reasonable progress in his efforts to
correct the conditions that led to D.M.'s removal. I respectfullydissent.
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