An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1151


Filed: 21 June 2005


ANP and SRP                        Buncombe County
                                Nos.    03 J 207-08

    Appeal by respondent from judgment entered 21 January 2004 by Judge Rebecca B. Knight in District Court, Buncombe County. Heard in the Court of Appeals 30 May 2005.

    Charlotte W. Nallan for petitioner-appellee Buncombe County     Department of Social Services.

    M. Victoria Jayne for respondent-appellant.

    Michael N. Tousey for Guardian ad Litem.

    McGEE, Judge.

    Respondent mother, JJP, (respondent) appeals from the judgment of the trial court terminating her parental rights to the minor children ANP and SRP. The judgment also terminated the parental rights of: JDP, the father of ANP and the legal father of SRP by marriage; JDB, the putative biological father of SRP; and the unknown biological father of SRP. None of the male respondents have appealed.
    The record shows that ANP was born to respondent and her husband, JDP, on 31 August 1997. The Buncombe County Department of Social Services (DSS) received a report on 4 January 2002, that ANPwas living in an unsanitary home. DSS substantiated the complaint, finding a "lack of proper care" for ANP in the home and an "environment injurious" to her welfare. Respondent and JDP failed to correct these conditions. After signing a case plan on 8 March 2002, respondent notified DSS on 11 March 2002 that JDP had moved out of the home, leaving her without a vehicle or means of support. Respondent later reported that JDP had "forced her to move out of the home." The parties agreed that ANP would be placed with her paternal grandmother and step-grandfather. Respondent signed a new case plan agreeing to attend parenting classes, follow up with therapy at Blue Ridge Center, and obtain stable housing and employment.
    Respondent gave birth to SRP on 27 May 2002. By July of 2002, the respondent and JDP were living together but had not completed their respective case plans. Based upon its findings, the trial court adjudicated both children neglected at a hearing held 16 September 2002, and concluded that the children "lived in an environment injurious to their welfare due to the unsanitary living conditions and the instability of the parents." See N.C. Gen. Stat. § 7B-101(15) (2004). The trial court granted DSS temporary custody of the children.
    DSS filed a petition to terminate respondent's parental rights to ANP and a petition to terminate respondent's parental rights to SRP on 9 September 2003, alleging as grounds for termination that (1) respondent had neglected the minor children, and there was a reasonable probability that such neglect would continue upon theirreturn to her supervision and care, and (2) she had willfully left the minor children in a placement outside the home for more than twelve months without making reasonable progress to correct the conditions leading to their removal. N.C. Gen. Stat. § 7B- 1111(a)(1), (2) (2004).     After a hearing on 8 December 2003, the trial court found both grounds for termination alleged in the petition. Pursuant to N.C.G.S. § 7B-1111(a)(1), the trial court concluded that respondent had neglected the children by raising them "in an environment injurious to their welfare due to the unsanitary living conditions, exposure to domestic violence and the instability of the Respondent Mother[,]" and by being "unable or unwilling to protect" ANP from sexual abuse. The trial court found a reasonable probability that such neglect would continue if the children were returned to her home. As a second ground for termination under N.C.G.S. § 7B-1111(a)(2), the trial court concluded that respondent willfully left the children in a placement outside of the home for more than twelve months "without showing any reasonable progress under the circumstances . . . to correct the conditions which led to the removal of the . . . children." The trial court further concluded that termination of respondent's parental rights was in the best interests of each minor child.
    In both of respondent's assignments of error on appeal, respondent contends that the ground for termination found by the trial court "was not proved at trial by clear, cogent and convincing evidence." In support of each assignment of error,respondent cites generally to the entirety of pages "19-121" of the hearing transcript. It is well-established that such broadside assignments of error do not comply with N.C. R. App. P. 10(c)(1) and are insufficient to sustain a challenge to any of the trial court's findings of fact. See King v. Snyder, 269 N.C. 148, 151, 152 S.E.2d 92, 94 (1967); Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Accordingly, we are bound by the trial court's findings, which are presumed to be supported by competent evidence. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Our review is limited to determining "whether the trial court's findings support its conclusion[s] of law." In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001).
    In support of its decision terminating respondent's parental rights, the trial court found as follows:
        11. [DSS] received a Child Protective Services complaint on January 4, 2002. The report alleged that ANP was living in a home that endangered her health. . . . This [r]eport was substantiated as neglect by [DSS] on February 14, 2002 due to lack of proper care and environment injurious to the welfare of ANP.

        12. . . . Respondent Mother signed a case plan with [DSS] on March 8, 2002 agreeing to submit to a . . . mental health assessment and treatment . . . and anger management. Referrals were made to these services as well as for daycare and parenting classes.

        13. [DSS] had received a prior report involving ANP on June 9, 2001. This prior report alleged that ANP had disclosed to her paternal grandmother that Kevin, the twelve- year-old son of the Respondent Mother's boyfriend, Terry, had touched her genitals. ANP had a Child Medical Examination on July 2, 2001, but there were no specific findings indicating sexual abuse. . . .

        14. . . . In mid-March 2002, . . . due to lack of stable housing and ANP['s] increasing symptoms of anxiety, including biting herself and pulling her hair out, the Respondent Mother and [DSS] agreed that ANP would be placed in a kinship placement with the paternal grandmother and step-grandfather . . . .

        15. On April 20, 2002, the Respondent . . . signed a new case plan agreeing to participate in parenting classes. . . . [Respondent] further agreed to locate and maintain stable employment and housing. The Respondent Mother agreed to follow up with her Blue Ridge Center therapist. A visitation schedule was agreed upon, however, the Respondent Mother . . . w[as] inconsistent with visitation and ANP experienced behavioral problems when visits were missed.

        16. . . . That during several investigations, there were additional allegations of domestic violence between the parents. At one point during the pendency of the underlying juvenile case, the Respondent Mother admitted that she and the Respondent Father had physical altercations.

        17. The Respondent Mother gave birth to the minor child SRP on May 27, 2002. . . . It was later confirmed that the Respondent Mother was allowing her boyfriend and his twelve year old son, Kevin, who ANP previously alleged had sexually abused her, to reside in her home. [In August of 2002], the Respondent Mother agreed to place SRP with the paternal grandmother and step-grandfather as well.

        . . .

        19. . . . [O]n September 16, 2002, . . . the Court adjudicated SRP a neglected child.

        . . .

        21. The Court suspended visits with the Respondent Mother . . . until a second ChildMedical Examination on ANP . . . was completed in early November 2002. This examination revealed significant changes to ANP['s] hymen indicating sexual penetration that had to have occurred after the . . . [e]xamination in June 2001. During the time between June 2001 and November 2002 ANP had lived with both the Respondent Mother and the Respondent Father . . . and the paternal grandmother and step- grandfather and there was no evidence as to the identity . . . of the perpetrator(s). [DSS] placed the children in a foster home in November 2002. . . .

        22. . . . [O]n December 16, 2002 . . . [t]he Court granted supervised visitation . . . to the Respondent Mother and paternal [g]randmother for one-half hour at the Department subject to the approval of [ANP's] therapist.

        . . .

        24. ANP has disclosed to her therapist that she was sexually abused by the . . . son of her mother's boyfriend . . . and that she has been inappropriately touched by the Respondent Father . . ., the Respondent Mother, . . . and the paternal grandmother. The Respondents and the paternal grandmother all deny that they have abused and/or inappropriately touched the minor . . . [children]. That there is a history of sexual abuse in the family.

        25. . . . ANP was diagnosed with ADHD and Adjustment Disorder with Mixed Disturbances of Conduct and Emotion and was treated in therapy for aggressive behaviors, anger at herself and others, butting and scratching herself and extreme tantrums. ANP made progress in treatment but was transferred to another therapist for a new type of therapy program.

        26. ANP has had great difficulty with anxiety, confusion and lack of trust related to her mother's inconsistency in parenting, visitation and maintaining consistent contact after the initial March 2002 kinship placement with the paternal grandmother. The Respondent Mother was asked by ANP['s] therapist to be consistent with their visits and contact with ANP. The Respondent Mother was not consistentwith her visits and contact with ANP and . . . only attended thirty percent (30%) of the therapy sessions although she was welcome to participate in all of the sessions. The therapist adjusted her focus of treatment due to the Respondent Mother's failure to respond consistently to ANP['s] needs to provide ANP with the skills necessary to deal with her mother's shortcomings. ANP benefited from this treatment and her aggressive behavior, self-abuse and tantrums diminished over the course of therapy.

        27. The Respondent Mother did not make any reasonable progress in her ability to meet ANP['s] needs and did not demonstrate the ability to follow the treatment plan or the therapist's instructions for the welfare of [ANP]. The Respondent Mother's failure to follow through with visitation and contact with ANP had a very negative and detrimental effect on ANP and exacerbated her behavior disorder.

        28. . . . [T]he Respondent Mother was referred to parenting classes as ordered by the court, to address her poor parenting skills and the hazardous home environment. The Respondent Mother completed parenting classes in November 2002.

        29. . . . [T]he Respondent Mother was referred to therapy at Blue Ridge Center to address her mental health needs as ordered by the Court. The Respondent Mother contacted therapist Jo Elle Steinenger at Blue Ridge Center some time in May 2002. The Respondent Mother did not contact the therapist again until May 2003 and had an appointment with the therapist on May 14, 2003. At this appointment, Ms. Steinenger asked the Respondent Mother what problems led to the removal of her children. The Respondent Mother was unable to identify reasons for DSS involvement.

        30. . . . [T]he Respondent Mother was referred for housing and economic services. The family received food stamps and emergency assistance. The Respondent Mother was referred to Joblink employment services to assist her in obtaining stable employment asordered by the Court. The Respondent Mother declined this service.

        [31]. The Respondent Mother testified she does not want her parental rights terminated. Her parents have provided her financial support and since the filing of the petition to terminate her parental rights they have paid her rent for a mobile home in Swannanoa, North Carolina. Her parents pay her rent, utilities and provide her groceries. The Respondent Mother gave birth to a son on October 1, 2003.

        3[2]. The Respondent Mother has made progress in that she now has an appropriate home to live in and there is no evidence that it is not safe or clean. However she is totally dependent on her parents to maintain this residence and she is unable at this time to provide for herself, her newborn son, or anyone else.

Although respondent's testimony differed from these findings on certain points, the trial court, as finder of fact, was the sole arbiter of the witnesses' credibility. See In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (stating: "[I]t is the duty of the trial judge . . . to determine the credibility of the witnesses and the weight to be given their testimony."). 
    Under N.C. Gen. Stat. § 7B-1111(a)(2), the trial court may terminate a respondent's parental rights if:
        [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. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.

A finding that a parent has willfully left the child in a placementoutside the home will be upheld, notwithstanding some efforts by the parent to regain custody, if the parent fails to demonstrate both a positive response to DSS's efforts toward reunification and reasonable progress in correcting the problems which led to the child's removal from the home. In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996). Requiring both positive efforts and positive results serves to prevent parents from "forestall[ing] termination proceedings indefinitely by making sporadic efforts for that purpose." In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
    Initially, we note that respondent surrendered ANP to a kinship placement with the paternal grandparents in March of 2002. After giving birth to SRP on 27 May 2002, respondent also placed SRP with the grandparents in August of 2002. The children were subsequently adjudicated neglected on 16 September 2003 and were removed from the kinship placement and placed in foster care on November of 2002, based on the physical evidence of sexual abuse upon ANP. Both ANP and SRP had been in foster care for more than twelve months when DSS filed the petitions to terminate respondent's parental rights on 9 September 2003. See N.C. Gen. Stat. § 7B-1111(a)(2). Petitioner's claim to the contrary is without merit.
    After reviewing the record, we conclude the trial court properly considered respondent's steps toward compliance with her case plan but deemed her efforts insufficient to constitute "reasonable progress" under N.C.G.S. § 7B-1111(a)(2). Althoughrespondent completed parenting classes in November 2002, the children's DSS Foster Care Supervisor, Susan Strickland, noted no "significant change" in respondent's parenting skills during her supervised visitations, which were finally suspended in May of 2003. The trial court's findings also recognized that respondent had been living in a clean apartment "two to three months" at the time of the termination hearing. However, respondent was completely dependent upon her parents for her rent and living expenses. She had refused DSS's referral for employment assistance and had failed to obtain stable employment. More than twenty months after signing the 20 April 2002 case plan, respondent had no means to support herself other than her family's generosity. While she claimed to have worked at some time during 2002, she could not "remember what months -- dates or anything like that."
    The findings further reflect respondent's refusal to acknowledge any responsibility for the loss of custody of her children. When asked at the hearing why DSS became involved with her children, she testified, "Because of false allegations." Asked on cross-examination if she could think of "any other reason" why her children were in DSS custody other than her husband's alcohol use, respondent replied, "No." Moreover, although DSS referred respondent to Blue Ridge Center for therapy in March of 2002, she waited a year to contact her therapist and attended only one session with her. Although respondent claimed to have attended additional therapy at Blue Ridge Center for "two or three months" beginning in July of 2003, she conceded that she stopped attendingwhen she "felt comfortable" that she did not need therapy.
    Perhaps most significantly, the trial court's findings reflect respondent's lack of acceptance or awareness of the detrimental effects of her behavior upon ANP. Karen Kuretsch, ANP's therapist at Blue Ridge Center Child and Family Services from 25 March 2002 until 7 August 2003, testified that ANP had "always been a child that's needed safety and security” and experienced anxiety, anger, and self-abusive behavior when her needs were not met. When ANP initially disclosed she had been sexually abused, respondent "did not believe her[.]" Although respondent later told ANP's treatment team "that she had begun to believe" her daughter, there was no evidence that respondent disclosed her belief to the child. ANP "definitely had a need to feel protected by" respondent and "worried that her mother wouldn't be able to keep her safe."
    Consistent with the trial court's findings, Kuretsch testified that respondent attended "maybe [thirty] percent" of ANP's therapy sessions. She noted that respondent "failed to follow through on several things that were requested of her to do." Specifically, Kuretsch stated that respondent "was asked to call on certain days . . . . We talked about the need for coming to stay on consistent nights. If she said she was going to do something to follow through with it, and that type of thing." Kuretsch observed respondent's inconsistency in disciplining ANP, in telephoning her, and in attending visitations. Kuretsch explained that this inconsistency was harmful to ANP:
        [b]ecause A[NP] has issues with trusting adults to take care of her, and just trustingpeople individually. And it was very anxiety-provoking for her, very confusing. She didn't understand why her mom would come one time not another, didn't follow through, didn't call when she was supposed to, and that caused a lot of anxiety and a lot of confusion, which then in young children translates into anger, irritability and aggressive behavior.

Kuretsch testified that when she talked to respondent about the need to be consistent with ANP, respondent "said that she would attempt to do those things and agreed to do those things, but yet was not able to do those things on a consistent basis."
    Respondent insisted she had attended all but one of ANP's therapy sessions. When asked if there was "anything that you can think of that [Kuretsch] had asked you to do, or suggested that you could do to help A[NP] out and that you didn't," respondent replied, "No." Respondent also denied Strickland's account of a visitation at which respondent ignored SRP while assembling a toy for ANP, leaving the infant "sitting on the floor crying" until the social worker picked her up.
    We hold the findings of fact support a conclusion that respondent had not made reasonable progress in correcting the conditions which led to the adjudication of neglect and the removal of the children from her home. She declined to avail herself of the referrals offered by DSS for therapy and for assistance in obtaining stable employment, as required by her case plan. She refused to acknowledge the basis for DSS's custody of the children, failed to demonstrate an appreciation of the effects of her erratic behavior on ANP, and showed no meaningful progress in correctingher behavior. The evidence supports the trial court's finding that respondent did not show a positive response to DSS's efforts or positive results from those efforts. See In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93 (2004); In re Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676, 681-82 (1989). Although respondent completed parenting classes and had been provided with an "appropriate home" by her parents, "[e]xtremely limited progress is not reasonable progress" for purposes of N.C. Gen. Stat. § 7B-1111(a)(2). Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25.
    Having found a basis for the termination of respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(2), we need not address the remaining ground for termination found by the trial court. See In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990); In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982), appeal dismissed, 459 U.S. 1139, 74 L. Ed. 2d 987 (1983).
    Upon finding at least one of the statutory grounds for terminating parental rights, the trial court may, in its discretion, terminate a respondent's parental rights if it finds that it is in the child's best interest to do so. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001); see also N.C. Gen. Stat. § 7B- 1110(a) (2003) (governing the disposition stage of a termination of parental rights proceeding). Respondent does not contend that the trial court abused its discretion in electing to terminate her parental rights at the disposition stage of the proceedings. Furthermore, the evidence in the record showed that the childrenwere thriving in a "very warm, loving family atmosphere" created by their adoptive foster parents. Thus, we find no abuse of discretion.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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