IN THE MATTER OF: Mecklenburg County
O.C. and O.B. No. 01 J 1156-1157
Minor Children.
Alan B. Edmonds, for petitioner-appellee Mecklenburg County
Youth and Family Services.
Katharine Chester, for respondent mother-appellant.
LEVINSON, Judge.
Respondent-mother (respondent) appeals from an order
terminating her parental rights in the minor children, O.C. and
O.B. We affirm.
A motion to terminate respondent's parental rights was filed
6 December 2002. The termination of parental rights proceeding was
heard in two parts, the first being held 2 June 2003 and the second
2 September 2003. The evidence presented may be summarized as
follows: Mecklenburg County Youth and Family Services (“YFS”)
began providing services to respondent in March 1999. On 13
November 2001 YFS filed a petition alleging the children were
neglected and dependent. Respondent had been stabbed by the
maternal grandmother and assaulted by her live-in boyfriend.
Respondent had not addressed her substance abuse issues. On 9
January 2002 a case plan was developed through a mediatedagreement, which was incorporated by reference in a 10 January 2002
order that adjudicated the minor children dependent. Respondent
was required to “successfully resolve any substance or alcohol
abuse issues and maintain sobriety on an ongoing basis”, complete
parenting classes, pursue a GED, maintain safe housing, complete a
parenting capacity evaluation and domestic violence assessment, and
obtain employment.
Jamesia Boyd was the YFS social worker assigned to the case
between January 2002 and February 2003. While Boyd was the
caseworker, respondent was not able to complete an inpatient drug
treatment program or maintain sobriety. In the spring of 2002,
respondent began drug treatment twice. While she was incarcerated
in the Mecklenburg County jail in July 2002, respondent completed
a drug treatment, or drug education, program offered by the county
jail. Following respondent's release from jail, on 2 October 2002,
she tested positive for cocaine and marijuana. Respondent began
inpatient treatment 26 November 2002 but did not complete the
program. Respondent began treatment 23 April 2003 with the Cascade
program, an intensive outpatient drug treatment program. The
Cascade program recommended that respondent obtain inpatient
treatment.
Respondent remained unemployed. She did not complete her GED.
Respondent paid no child support. Other than completing parenting
classes in October 2002, respondent did not provide proof to Boyd
that she had completed any of the other items in her case plan.
Respondent did visit regularly with her children and brought themgifts of toys and food. Respondent had requested that the minor
children be placed with relatives. According to Boyd, YFS had
investigated the placements suggested by respondent and none proved
suitable.
Respondent testified. In February 2002, she left the maternal
great-grandmother's home and moved into a two bedroom apartment
with a male friend. Although the lease was in respondent's name,
the male friend paid her rent. She borrowed money from her mother
and grandmother to pay the utilities. She applied for housing
through the Housing Authority, but was unable to secure public
housing. Respondent began, but did not complete, an inpatient drug
treatment program recommended for her by the Cascade program 30 May
2003. She did complete an inpatient program in August 2003, but
did not return to the Cascade program. At the time of the
termination hearing, respondent had not been employed since October
of 2002. She had been looking for work unsuccessfully “from the
end of last year [2002] up until April of this year [2003].”
Respondent took a placement test at Central Piedmont Community
College in August 2002 but had not completed any academic courses
there. Respondent had visited with her children. Respondent
described her visits with her children and the gifts she had
provided them. Respondent stated she loves her children and asked
the court for additional time to work on her substance abuse
issues. Respondent requested that the court reconsider the
relative placements previously investigated by YFS. Natasha Perry testified. At the termination hearing on 2 June
2003, she was respondent's case manager with the Cascade program.
When respondent tested positive for drugs, the Cascade program
referred her to a 28 day inpatient treatment program. Respondent
was to complete the inpatient program before continuing her
treatment with the Cascade program. At the second hearing date, on
2 September 2003, Perry did not return to testify.
The children's foster mother, Geraldine Walton, testified.
She had not seen respondent since the late fall of 2002. She
described the children's needs. O.C. had severe eczema. Both
children had allergies and O.B. was suspected of having
developmental delays. Although Walton had seen respondent
regularly during respondent's visits with the children, respondent
had never asked about the children's medical needs.
The guardian ad litem, Maxine Twery, testified. She had
observed many of respondent's visits with the children. According
to the guardian ad litem, respondent did not express appropriate
concern for her children's significant medical conditions. O.C.
was diagnosed with ADHD and O.B. had severe speech and language
delays. Both children received therapy. According to Twery,
respondent's anger was a problem during visits. Respondent never
inquired about the children's medical conditions or attended their
therapy appointments. When asked whether Twery and the caseworker
could make a home visit, respondent refused, telling them she did
not want home visits. The maternal grandmother and maternal great-grandmother
testified. Both requested that their homes be considered as
placement alternatives for the children.
The trial court found grounds to terminate respondent's
parental rights on the basis of neglect, pursuant to N.C.G.S. § 7B-
1111(a)(1), failure to make reasonable progress to correct the
conditions leading to the children's removal, pursuant to N.C.G.S.
§ 7B-1111(a)(2), and failure to pay child support, pursuant to
N.C.G.S. § 7B-1111(a)(3). The trial court determined it was in the
best interests of the minor children to terminate respondent's
parental rights. From this order, respondent appeals.
___________________________
Respondent first argues that the trial court erred by not
appointing her a guardian ad litem due to her history of substance
abuse. Respondent makes two arguments in this regard: first, that
the trial court's failure to appoint a GAL for her for the hearing
on termination of parental rights requires reversal; and second,
that because the trial court failed to appoint a GAL for her during
the dependency proceedings in January 2002, the 21 October 2003
order on termination of parental rights must be reversed.
(See footnote 1)
We
disagree, and discuss each of these two contentions in turn. Respondent was not entitled to the appointment of a GAL for
the hearing on the petition to terminate parental rights. N.C.G.S.
§ 7B-1101 (2001), the statute in effect at the commencement of the
termination matter, provided in pertinent part:
In addition to the right to appointed counsel
. . ., a guardian ad litem shall be appointed
in accordance with the provisions of G.S. 1A-
1, Rule 17, to represent a parent in the
following cases:
(1) Where it is alleged that a parent's
rights should be terminated pursuant
to G.S. 7B-1111(6); or
(2) Where the parent is under the age of
18 years.
(Emphasis added).
N.C.G.S. § 7B-1111(a)(6) (2001) provided, in pertinent part:
That the parent is incapable of providing for
the proper care and supervision of the
juvenile, such that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101, and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Incapability under this subdivision may be the
result of substance abuse, mental retardation,
mental illness, organic brain syndrome, or any
other similar cause or condition.
This Court, in In re Estes, 157 N.C. App. 513, 518, 579 S.E.2d
496, 499, disc. review denied, 357 N.C. 459, 585 S.E.2d 390 (2003),
held “where . . . the allegations contained in the petition or
motion to terminate parental rights tend to show that the
respondent is incapable of properly caring for his or her child
because of mental illness, the trial court is required to appoint
a guardian ad litem to represent the respondent at the termination
hearing.” In the instant case, the motion to terminate parental rights
neither alleged respondent was incapable of caring for the minor
children due to a debilitating condition, nor cited G.S. § 7B-
1111(a)(6). Rather, the motion alleged grounds for termination
based on: (1) neglect, pursuant to G.S. § 7B-1111(a)(1); (2)
failure to make reasonable progress to correct the conditions
leading to the children's removal, pursuant to G.S. § 7B-
1111(a)(2); and (3) failure to pay child support, pursuant to G.S.
§ 7B-1111(a)(3). Moreover, none of the allegations in the motion
tended to show respondent was incapable of providing care for the
children. The trial court did not err by failing to appoint a
guardian ad litem for respondent for the hearing associated with
the motion to terminate parental rights.
We also reject respondent's contention that the termination
order on appeal must be reversed because of the trial court's
failure to appoint her a GAL for the dependency adjudication
proceedings occurring nineteen (19) months earlier.
N.C.G.S. § 7B-602(b)(1) (2003) governs the circumstances when
a parent must be appointed a GAL for dependency proceedings:
In addition to the right to appointed counsel
. . ., a guardian ad litem shall be appointed
. . . to represent a parent in the following
cases:
(1) Where it is alleged that the
juvenile is a dependent juvenile
within the meaning of G.S. 7B-101 in
that the parent is incapable as the
result of substance abuse, mental
retardation, mental illness, organic
brain syndrome, or any other similar
cause or condition of providing forthe proper care and supervision of
the juvenile . . . .
Only the order on termination of parental rights is before
this Court; the order on adjudication is not. Even assuming,
arguendo, that the trial court failed to appoint a GAL for
respondent during the adjudication proceedings and that she was
even entitled to such a GAL, we reject her argument that this bears
a legal relationship with the validity of the later order on
termination.
(See footnote 2)
First, there is no statutory authority for the
proposition that the instant order is reversible because of a GAL
appointment deficiency that may have occurred years earlier. Our
legislature has adopted two separate juvenile GAL appointment
provisions concerning the appointment of a GAL for a parent, one
found in Article 6 of the Juvenile Code concerning petitions
alleging the status of the child, G.S. § 7B-602(b), and a second,
equally specific provision in Article 11 concerning the appointment
of a GAL for a parent within the context of a motion or petition
for termination of parental rights, G.S. § 7B-1101. Neither of
these two provisions, nor anything in our Juvenile Code, evinces an
intent on the part of the legislature that a failure to appoint a
GAL during the earlier adjudication proceedings impacts a later
order on termination of parental rights. Secondly, there is no
common law authority to support such a proposition. Respondent
contends In re T.B.K., 166 N.C. App. 234, 603 S.E.2d 805 (2004),supports her position. However, T.B.K. is consistent with all of
this Court's opinions concerning this subject: If the trial court
fails to appoint a required GAL for a parent for the proceedings
associated with the order on appeal, such order must be reversed.
See, e.g., In re K.R.S., __ N.C. App. __, 613 S.E.2d 318 (2005)
(termination order on appeal reversed for want of GAL for
termination proceedings); In re S.B., 166 N.C. App. 494, 602 S.E.2d
694 (2004) (same); In re Estes, 157 N.C. App. 513, 579 S.E.2d 496
(2003) (same); In re Richard v. Michna, 110 N.C. App. 817, 431
S.E.2d 485 (1993) (same). While this Court has taken a per se
reversible error approach to failures of the trial court to appoint
a GAL when such procedural deficiency concerned the orders on
direct appeal, adoption of the respondent's argument would
represent an expansion of this area of the law that we are
unwilling to craft absent a legislative mandate to do so.
We make several additional observations which help illustrate
the fallacy of respondent's argument that, where the trial court
fails to appoint a GAL for the parent during the adjudication
proceedings, a later order on termination of parental rights must
be reversed. First, this would create uncertainty and render
judicial finality meaningless. Termination orders entered three,
five, even ten years after the initial adjudication could be cast
aside. Secondly, by necessarily tying the adjudication proceedings
and termination of parental rights proceedings together, respondent
misapprehends the procedural reality of matters within the
jurisdiction of the district court: Motions in the cause andoriginal petitions for termination of parental rights may be
sustained irrespective of earlier juvenile court activity. See In
re R.T.W., (No. 417PA04) __ N.C. __, ___, __ S.E.2d __, ___ (filed
1 July 2005) (“Each termination order relies upon an independent
finding that clear, cogent, and convincing evidence supports at
least one of the grounds for termination under N.C.G.S. § 7B-1111.
. . . Simply put, a termination order rests upon its own merits.”).
Thirdly, even if respondent was entitled to a GAL for the
proceedings associated with the earlier dependency proceedings,
there cannot be prejudice to her in the termination proceedings
because she was not even entitled to the appointment of a GAL for
the termination proceedings. Finally, respondent's argument does
not account for the fact that circumstances surrounding an
individual change over time: The parent may no longer have the
concerns which caused his or her incapacity months or years
earlier.
Finally, the consequences of reversing termination orders for
deficiencies during some prior adjudication would yield nonsensical
results. While the order on termination would be set aside, the
order on adjudication would not; consequently, the order on
adjudication would remain a final, undisturbed order in all
respects. This would generate a legal quagmire for the trial
court: It has continuing jurisdiction over these children by
operation of the undisturbed order on adjudication, but must “undo”
everything following the time the children were initially removedfrom the home if it ever wishes to enter a valid termination of
parental rights order. This assignment of error is overruled.
___________________________________
We next address respondent's argument that numerous findings
of fact were not supported by clear, cogent and convincing evidence
and, further, that the court's findings do not support its
conclusion that grounds existed pursuant to G.S. § 7B-1111(a)(2) to
terminate her parental rights.
G rounds for termination of parental rights must be supported
by clear, cogent and convincing evidence. See N.C.G.S. § 7B-
1111(b) (2003). G.S. § 7B-1111(a)(2) (2003) provides a parent's
rights may be terminated where:
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. . . .
Thus, to find grounds to terminate a parent's rights under
G.S. § 7B-1111(a)(2), the trial court must perform a two part
analysis. See In re Baker, 158 N.C. App. 491, 494, 581 S.E.2d 144,
146 (2003). The trial court must determine by clear, cogent and
convincing evidence that a child has been willfully left by the
parent in foster care or placement outside the home for over twelve
months, and, further, that as of the time of the hearing, as
demonstrated by clear, cogent and convincing evidence, the parent
has not made reasonable progress under the circumstances to correct
the conditions which led to the removal of the child. Evidence andfindings which support a determination of “reasonable progress” may
parallel or differ from that which supports the determination of
“willfulness” in leaving the child in placement outside the home.
“A finding of willfulness does not require a showing of fault
by the parent.” In re Oghenekevebe, 123 N.C. App. 434, 439, 473
S.E.2d 393, 398 (1996) (citing In re Bishop, 92 N.C. App. 662, 669,
375 S.E.2d 676, 681 (1989)). “Willfulness is established when the
respondent had the ability to show reasonable progress, but was
unwilling to make the effort.” In re McMillon, 143 N.C. App. 402,
410, 546 S.E.2d 169, 175 (2001) (citing In re Nolen, 117 N.C. App.
693, 453 S.E.2d 220 (1995)). “A finding of willfulness is not
precluded even if the respondent has made some efforts to regain
custody of the children.” Nolen, 117 N.C. App. at 699, 453 S.E.2d
at 224 (citing In re Becker, 111 N.C. App. 85, 95, 431 S.E.2d 820,
826-27 (1993)).
With respect to the requirement that the petitioner
demonstrate that the parent has not shown reasonable progress, we
conclude that, under the applicable, amended statute, evidence
supporting this determination is not limited to that which falls
during the twelve month period next preceding the filing of the
motion or petition to terminate parental rights. Our Supreme
Court, in In re Pierce, 356 N.C. 68, 565 S.E.2d 81 (2002),
recognized this when it observed:
[D]uring the 2001 session of the General
Assembly, the legislature struck the “within
12 months” limitation from the existing
statute detailing the requirements for
establishing grounds for the termination of
parental rights. See Act of June 15, 2001,ch. 208, sec. 6, 2001 Sess. Laws, 111, 113.
Thus, under current law, there is no specified
time frame that limits the admission of
relevant evidence pertaining to a parent's
“reasonable progress” or lack thereof.
Id. at 75 n.1, 565 S.E.2d at 86 n.1 (emphasis added).
We next apply the foregoing principles to the instant case.
Respondent challenges findings of fact numbers 19, 96, 100, 101,
114, 133, and 141:
19. The mother was to secure housing for herself
and the children. She had no[t] made any
progress toward securing housing as of June 2,
2003.
. . . .
96. She has started a GED Program three times
since the beginning of the case plan. The
mother has never completed her GED. She has
never made it [past] the first session.
. . . .
100. In a period of ten to eleven months, the
mother has looked for work only thirteen
places. The mother is no closer to securing
employment on September 2, than she was at the
beginning of the case plan nor has she had
employment while this case has been pending.
101. She has made no progress on the case plan
goals of education or employment.
. . . .
114. [Respondent] has failed repeatedly to address
her substance abuse issues. It is documented
many times in Court testimony, Court Orders,
and Summaries the mother has started substance
abuse treatment but then failed to complete
the treatment. She has begun substance abuse
treatment in the same program four different
times. While in jail, she did complete the
program referenced in paragraph 34.
. . . .
133. [Respondent] never addressed the issue of
domestic violence. She was to attend
counseling at the Women's Center. YFS did not
push the mother to attend this because she had
not completed substance abuse treatment.
. . . .
141. Even as the termination of parental rights
trial was ongoing, the mother could not
complete her inpatient substance abuse
treatment in twenty-eight days. She took
three months to complete it and then did not
enroll in after care.
The children were removed from the home pursuant to the
petition for non-secure custody filed 13 November 2001 and had been
in foster care for more than twelve months at the time of the
termination hearing on 2 June 2003 and 2 September 2003. The
conditions leading to the removal of the children were, in large
measure, due to domestic violence and respondent's substance abuse.
Treatment for respondent's substance abuse was the first item
on the mediated case plan. Up to and including the time of trial,
respondent made six attempts to address her substance abuse. In
the spring of 2002 respondent began substance abuse treatment twice
but did not complete either program. While incarcerated, in July
2002, respondent did complete a drug treatment program provided by
the Mecklenburg County jail. This program was not an inpatient
substance abuse program. There was some evidence it was only a
drug education program, though the certificate of completion
labeled it a “Substance Abuse Treatment Program.” On 2 October
2002, following her release from jail, respondent tested positive
for marijuana and cocaine. In November 2002, respondent began drug
treatment for the fourth time, but did not successfully completethe program. Respondent did not enter treatment again until the
spring of 2003, when she began the Cascade program. Respondent did
not complete this program. Respondent later completed a 28 day
inpatient treatment program over a three month period, finishing it
in August 2003.
In February 2002, respondent moved out of her grandmother's
home and began sharing an apartment with a male friend who paid her
rent. Respondent remained unemployed through the termination
proceedings and depended on gifts of money for her support. She
did not begin looking for work until the end of 2002, and was
unsuccessful in doing so. Respondent did not follow through with
a GED program, and did not address her issues with domestic
violence.
We conclude that findings of fact numbers 19, 96, 100, 101,
114, 133, and 141 were supported by clear, cogent and convincing
evidence. These findings support the trial court's conclusion of
law that grounds existed to terminate respondent's parental rights
pursuant to G.S. § 7B-1111(a)(2).
Because we find grounds for termination were properly
established pursuant to G.S. § 7B-1111(a)(2), we need not address
respondent's further arguments regarding termination pursuant to
G.S. § § 7B-1111(a)(1) and (a)(3). See In re Stewart Children, 82
N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986)(once one statutory
ground for termination is established, this Court need not address
assignments of error challenging other grounds). This assignment
of error is overruled. We have carefully reviewed respondent's remaining assignments
of error and conclude they are without merit.
Affirmed.
Chief Judge MARTIN concurs.
Judge TYSON concurs in the result.
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