An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

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NO. COA03-1360

NORTH CAROLINA COURT OF APPEALS

Filed: 19 April 2005

In re: S.O.B-B.,                Robeson County
    a Minor Juvenile            No. 02 J 248
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In re: S.U.B-B.,                Robeson County
    a Minor Juvenile            No. 02 J 249

    Appeal by respondent from two orders filed 11 March 2003 by Judge William J. Moore in Robeson County District Court. Heard in the Court of Appeals 25 August 2004.

    No brief filed for petitioner-appellee.

    Katharine Chester for respondent-appellant.

    BRYANT, Judge.

    S.R.C.   (See footnote 1)  (respondent-mother) appeals two separate orders filed 11 March 2003, terminating her parental rights as to her twin son and daughter, S.O.B-B. and S.U.B-B., respectively.
    S.O.B-B. and S.U.B-B. were born on 28 November 1996 to respondent and J.T.B. In 1997, Robeson County Department of Social Services (DSS) filed petitions alleging that the twins were neglected. DSS specifically alleged, when the twins were seven months of age, respondent negligently allowed S.U.B-B. to be in the presence of a known child molester, who molested S.U.B-B., and caused severe injury to S.U.B-B.'s vagina necessitating surgery torepair the damage. As to S.O.B-B., DSS specifically alleged that respondent negligently failed to provide medical attention for S.O.B-B. when his scrotum was excessively swollen, and respondent allowed a known child molester to be in her home - the same child molester who molested S.U.B-B. On 18 August 1997, a consent order was entered adjudicating the twins to be neglected and placed custody of the twins with DSS. DSS placed the twins with their paternal grandmother, J.B.S. (petitioner), who was granted legal custody of the twins by order filed 9 March 1998. Further, the district court allowed DSS to close the case in 1998.
    Petitioner-grandmother filed petitions on 16 July 2002, and amended petitions on 3 October 2002, to terminate the parental rights of respondent pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), alleging respondent had willfully left the twins in placement outside the home for more than twelve months without showing that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the children. These matters came for hearing at the 26 February 2003 session of Robeson County District Court with the Honorable William J. Moore presiding. By orders filed 11 March 2003, the district court terminated respondent's parental rights as to the twins pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Respondent 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 adjudicationstage, 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.2d 838, 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 bycompetent 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 are 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).
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    The dispositive issue on appeal is whether the termination of parental rights (TPR) orders must be vacated because of lack of sufficient findings to support a conclusion that the mother had failed to make reasonable progress correcting the conditions which led to removal.
    N.C. Gen. Stat. . 7B-1111(a)(2), provides for termination of parental rights if “the parent has willfully left the juvenile in foster case or placement outside the home for more than 12 [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.G.S. . 7B-1111(a)(2)(2003).
    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.” Oghenekevebe, 123 N.C. App. at 440, 473 S.E.2d at398. 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.” In re Nolan, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
    In the instant case, we must examine whether the district court found sufficient facts - based on clear, cogent, and convincing evidence - to support its conclusion that respondent had failed to show that reasonable progress had been made in correcting those conditions that led to the removal of her children. In re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 87 (2002).
    Here, the TPR orders contained the following findings of fact:

1. The Juvenile[s], [S.U.B-B.] and [S.O.B- B.], [were] born on November 28, 1996, in Cumberland County, North Carolina.

2. The Juvenile[s] reside in Robeson County, North Carolina with the Petitioner and [have] since [they were] seven months of age.     

3. The Petitioner, [J.B.S.], resides in Robeson County, North Carolina, and is the paternal grandparent of the Juvenile[s] and is seeking termination of the parental rights of the Juvenile[s'] mother, [S.R.C.]

4. The name of the Respondent is [S.R.C.] . . . .

5. That [the] name[s] of the mother and father of the Juvenile[s are S.R.C.] . . . and [J.T.B.] . . . .

6. That the Juvenile[s S.U.B-B. and S.O.B-B.] were] born out of wedlock.

7. The Juvenile[s are] in the custody of the Petitioner and [have] been since the Juvenile[s were] seven months of age.
8. That the Robeson County Department of Social Services placed [S.U.B-B.] with the Petitioner because the Respondent negligently allowed the child to be in the presence of a known sex molester that molested the said Juvenile sexually and caused severe injury to the said Juvenile   (See footnote 2)  .

9. That the vagina of [S.U.B-B.] was injured when she was sexually assaulted and at this time she is to have surgery to cause the same to be corrected.

10. That since the Juvenile[s were] placed with the Petitioner, the Respondent has had two other children and has not provided the Petitioner with any support for the said Juvenile.

11. That the Petitioner has been the sole provider for the care and support of the said Juvenile[s] since the said Juvenile[s were] seven months of age.

12. That the Respondent is employed and lives in a home that is made available to her through Section Eight at no expense to her because she has other children.

13. That the Respondent failed to comply with the reasonable efforts requirements of the Department of Social Services to return the said Juvenile[s] to the Respondent before thecase was closed on February 18, 1998.

14. That the Department of Social Services on February 18, 1998, placed the custody of the said Juvenile[s] in a final Order with the Petitioner.

15. The Petitioner plans to adopt the said Juvenile[s] and has the consent of the father, her son, who was present in court.

16. That the Respondent in the past twelve months has made no reasonable effort to correct the conditions which led to the placement of the said Juvenile[s] with the Petitioner.

17. That the Petition filed in this case was not filed to circumvent the provisions of Article 2, Chapter 50A of the North Carolina General Statutes, the Uniform Child Custody Jurisdiction and Enforcement Act.

18. The best interests of the said Juvenile[s] requires that the parental rights of the Respondent be terminated in this proceeding.
            
    From these findings, the district court concluded as follows:

19. The Respondent was willfully left the said Juvenile[s] in placement outside her home for more than twelve months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made within twelve months in correcting those conditions which led to the removal of the said Juvenile[s] pursuant to N.C. Gen. Stat. . 7B-1111(a)(2).

20. The best interest of the said Juvenile[s] require that the parental rights of the Respondent be terminated   (See footnote 3)  .

    In reviewing the findings, we do not find them sufficient to support termination of respondent's parental rights pursuant toN.C. Gen. Stat. . 7B-1111(a)(2). The district court failed to make findings regarding respondent's progress or lack thereof, regarding the conditions that led to the removal of the children. The children were removed because DSS specifically alleged, when the twins were seven months of age, respondent negligently allowed S.U.B-B. to be in the presence of a known child molester that molested S.U.B-B., causing severe injury to S.U.B-B.'s vagina necessitating surgery to repair the damage. As to S.O.B-B., DSS specifically alleged that respondent negligently failed to provide medical attention for S.O.B-B. when his scrotum was excessively swollen, and respondent allowed a known child molester to be in her home - the same child molester who molested S.U.B-B. None of the findings of fact address whether reasonable progress had been made in correcting those conditions that led to the removal of the children   (See footnote 4)  .
    We hold that the findings of fact failed to establish that respondent willfully left her children in foster care without making reasonable progress under the circumstances to correct the conditions which led to removal of the children pursuant to N.C. Gen. Stat. . 7B-1111(a)(2). See In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987) (stating that a court cannotterminate respondents' parental rights under this section absent the necessary additional conclusion and supporting findings that respondents failed to show reasonable progress under the circumstances in correcting the conditions leading to the removal of their children); see also In re Fletcher, 148 N.C. App. 228, 236, 558 S.E.2d 498, 503 (2002)(“the record is unclear as to the evidence that the [district] court relied upon to determine that [respondent-father] willfully left the minor child in foster care for more than twelve months without making reasonable progress in correcting those conditions that led to the removal of the child from his home”); In re Nesbitt, 147 N.C. App. 349, 361, 555 S.E.2d 659, 667 (2001)(stating that although the child was removed from respondent's custody due to concerns she was not providing care, supervision, and discipline for the child, the evidence did not support the district court's findings that respondent did not make reasonable progress regarding her ability to provide a safe environment for the child by clear, cogent, or convincing evidence). Accordingly, the TPR orders are reversed.     

    Reversed.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).     


Footnote: 1
     Initials are used throughout to protect the identity of the juveniles.
Footnote: 2
     Finding of fact #8 in S.U.B-B's order reads:

That [S.O.B-B.] was removed from the custody of the Respondent because the Respondent negligently failed to provide medical attention for the said Juvenile when the Juvenile's scrotum was swollen excessively and the Respondent allowed a known sex offender to be in her home when he sexually assaulted the twin sister of the said Juvenile.

    We note there was a minor difference in S.O.B-B's order in that several of the findings read the same as in S.U.B-B's order but were numbered differently, and S.O.B-B's order contained one additional finding. In the text, we have presented the findings as they are numbered in S.U.B-B.'s order.


Footnote: 3
    The conclusions of the law in both S.O.B-B. and S.U.B-B.'s orders were identical.
Footnote: 4
     Although the findings of fact might tend to support termination of respondent's parental rights on other grounds, petitioner here alleged only one ground - willfully leaving the juveniles 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. These findings of facts do not support termination on the ground alleged.

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