IN THE MATTER OF Mecklenburg County
R.G., No. 04 J 196
minor child.
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., for petitioner-appellee.
Janet K. Ledbetter for respondent-appellant mother.
Peter Wood for respondent-appellant father.
GEER, Judge.
The respondents mother and father appeal from an order
terminating their parental rights with respect to their minor
daughter, R.G. The parents argue on appeal that the trial court's
findings of fact are not supported by the evidence and that those
findings are insufficient to support the court's conclusion that
grounds justifying termination exist. They argue further that the
trial court abused its discretion when deciding that termination
was in R.G.'s best interests. After a careful review of the
record, we hold (1) that clear, cogent, and convincing evidence
supports the trial court's conclusion and supporting findings of
fact that the respondent parents willfully left R.G. in foster care
for more than 12 months without making reasonable progress incorrecting the conditions that led to her removal from their
custody; and (2) that the trial court did not abuse its discretion
in deciding that termination of respondents' parental rights was in
the best interests of R.G. We, therefore, affirm the trial court's
order.
The father of a juvenile born out of wedlock
has not, prior to the filing of a petition or
motion to terminate parental rights:
a. Established paternity judicially or by
affidavit . . .; or
b. Legitimated the juvenile pursuant to
provisions of G.S. 49-10 or filed a
petition for this specific purpose; or
c. Legitimated the juvenile by marriage to
the mother of the juvenile; or
d. Provided substantial financial support or
consistent care with respect to the
juvenile and mother.
N.C. Gen. Stat. § 7B_1111(a)(5) (emphasis added). While the court
may have intended to reference N.C. Gen. Stat. § 7B-1111(a)(3),
relating to a parent's willful failure to pay a reasonable portion
of the cost of a child's care, the language in the order tracks
that of N.C. Gen. Stat. § 7B-1111(a)(5).
Most obviously, N.C. Gen. Stat. § 7B-1111(a)(5) applies only
to fathers and, therefore, cannot be a basis for terminating the
respondent mother's parental rights in this case. Moreover, in
order to establish this ground for termination, the petitioner must
prove "the father has failed to take any of the four actions." In
re I.S., __ N.C. App. __, __, 611 S.E.2d 467, 473 (2005) (emphasis
added). Since the record in this case contains an Order and
Acknowledgment of Paternity filed 9 May 2003, N.C. Gen. Stat. §
1111(a)(5) cannot constitute grounds for termination of the
respondent father's parental rights either. The trial court's third ground for termination rested upon
N.C. Gen. Stat. § 7B_1111(a)(2), which authorizes termination 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.
It is undisputed that R.G. had been in foster care approximately 13
months at the time DYFS filed the petition to terminate
respondents' parental rights.
Both respondent parents argue,
however, that the evidence establishes a lack of any willfulness on
their part and that, in any event, they
made reasonable progress in
correcting those conditions that led to the removal of R.G.
"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).
Instead, "willfulness" for the purposes of
§ 7B_1111(a)(2) is met when the parent has the ability to overcome
his or her problems but nonetheless, over a significant period of
time, fails to take steps to improve his or her situation. In re
Bishop, 92 N.C. App. 662, 668, 375 S.E.2d 676, 680 (1989). A
finding of willfulness "is not precluded just because respondent
has made some efforts to regain custody of the child."
Oghenekevebe, 123 N.C. App. at 440, 473 S.E.2d at 398.
The trial court's order entered the following findings of fact
pertaining to the respondent father's
ability to overcome hisproblems and his failure, over a significant period of time, to
take steps to improve his situation
:
8. The respondent father entered into a
court-approved case plan with YFS. Said
case plan included a substance abuse
assessment, parenting classes, the
N.O.V.A. Program, a sex offender
assessment and treatment, attending
visits with the child, completion of the
parenting capacity evaluation and
obtaining and maintaining appropriate
housing and employment.
9. The father did complete a substance abuse
assessment (which recommended no
treatment) and parenting classes. [The
respondent father] also completed a sex
offender's assessment, which recommended
that he have mental health treatment
prior to engaging in sex offender
treatment. He also completed a parenting
capacity evaluation, which recommended
working with his mental health issues.
10. [The respondent father] has not engaged
in any form of mental health therapy or
sex offender treatment. Throughout the
length of this case he also did not
engage in domestic violence treatment
through the N.O.V.A. Program.
11. He testified at this hearing that he
recently enrolled in N.O.V.A. and
attended his first session on April 27,
2004 and has gone to one session since
that time.
12. [The respondent father] has never
provided the agency proof of having
appropriate housing arrangements such
that he could provide for the minor
child. He testified that he is currently
living with two individuals in an extra
bedroom in their mobile home.
13. [The respondent father] has also never
obtained and maintained employment, such
that he could provide for the child. He
testified today that he had done
temporary work on a few limited occasionsover the last 4 1/2 months and has earned
approximately $200.00 in addition to
receiving food stamps.
14. Neither parent has maintained consistent
contact with the social worker in this
case.
. . . .
16. The parents visited with the child on a
fairly regular basis. . . . The
respondent father initially spent very
little time interacting with the child.
Once he obtained separate visits he would
play with the child to a limited extent,
although he spent more time simply
observing the minor child. He also had
to be redirected on numerous occasions
from making derogatory statements
regarding the child's caretaker, his
daughter, [T.T.]
17. The respondent father's failure to comply
with the N.O.V.A. Program is
particular[ly] indicative of his failure
to comply with the case plan.
18. A 50_B Restraining Order was entered
against [the respondent father] in the
summer of 2003 to prevent his further
harassing of his daughter, [T.T.].
Despite the entry of the restraining
order, [the respondent father] still did
not engage in the N.O.V.A. Program.
Our review of the record establishes that these findings of
fact are supported by clear, cogent, and convincing evidence,
including prior court orders, the testimony of social workers
assigned to the family, and the testimony of the father himself.
On appeal, the respondent father does not address his failure to
comply with the NOVA requirement or to obtain sex offender
treatment and mental health therapy; he also does not dispute thathe failed to obtain housing suitable for a child or stable
employment.
Instead, the respondent father points to the progress that he
did make _ and that the court found _ and challenges the trial
court's findings regarding visitation, employment, and stable
housing as being "unfairly one sided," "unfair," and an "unfair
characterization of appellant's housing dilemma." He contends that
"he did the best he could," he acted in "good faith," his attempts
to find work were "diligent and sincere," and "[h]is lack of
consistent housing was not his fault." These arguments address
questions of credibility and the weight of the evidence that may
only be decided by the trial court. The trial court was not
required to accept the respondent father's characterization of his
efforts and reasons for non-compliance.
(See footnote 1)
Since the findings of fact are supported by evidence, they are
binding on appeal. Further, these findings of fact regarding the
respondent father's failure to participate in the NOVA program,
individual therapy, and sex offender treatment, as well as hishousing and employment status, adequately support the trial court's
conclusion that respondent father has willfully failed to make
progress toward correcting the conditions that led to the removal
of R.G. from his care. See, e.g., In re D.M., __ N.C. App. __, __,
__ S.E.2d __, __, 2005 N.C. App. LEXIS 1263 (July 5, 2005) (grounds
for termination of parental rights existed under § 7B-1111(a)(2)
when the father failed to complete NOVA domestic violence program).
With respect to the respondent mother's
progress, the trial
court made the following pertinent findings
:
5. The respondent mother entered into a
court-approved case plan with YFS in
which she agreed: to obtain a substance
abuse assessment and to comply with the
recommendations of that assessment; to
complete parenting classes; attend visits
regularly with the child; complete a
parenting capacity evaluation and obtain
and maintain appropriate housing and
employment.
6. The respondent mother completed the
substance abuse assessment and the
outpatient therapy, which was
recommended, as well as parenting classes
at the Family Center. A parenting
capacity evaluation was conducted and as
a result of that evaluation, YFS
recommended that the respondent mother
attend individual counseling through
Mental Health. The respondent mother
agreed to do so but did not attend the
counseling.
7. The respondent mother has never obtained
appropriate housing such that she could
provide for the child. She had
employment for a period of approximately
two months in housekeeping at a local
hotel but has not maintained consistent
employment. She was observed on one
occasion to be panhandling on Eastway
Drive with a sign asking that food be
given to her and her 8-month-old child. The child was, in fact, in foster care at
the time.
. . . .
14. Neither parent has maintained consistent
contact with the social worker in this
case.
. . . .
16. The parents visited with the child on a
fairly regular basis. During said
visits, the respondent mother was
generally appropriate with the minor
child. . . .
Our review of the record reveals that these findings are supported
by the testimony of two social workers and the court's prior
orders. The mother did not testify or present any contrary
evidence.
On appeal, the mother acknowledges that DYFS requested that
she participate in mental health counseling, but argues, without
citation to any authority, that she was not required to comply
without a court order or court-approved case plan requiring
individual therapy. We, however, believe that the trial court
could properly consider the mother's failure to follow through on
therapy recommended by DYFS as evidence of a failure to make
progress in alleviating the conditions that necessitated removal of
R.G.
With respect to the housing and employment issues, respondent
argues that she was not provided enough time to work on those two
goals, suggesting that she only had 38 days prior to the
termination of parental rights ("TPR") hearing to demonstrate
progress. In fact, the mother had more than a year to demonstrateher desire and ability to obtain stable housing and employment.
The record indicates that during that year, the mother held only
one position for two months. Although the record also indicates
that the mother was hired for a second position in October 2003,
there is no evidence that she ever actually went to work there
prior to the TPR hearing. With respect to the mother's arguments
on appeal regarding her limited job skills and the difficulties she
has confronted with respect to housing and employment, this Court
has previously explained:
We are not insensitive to respondent's
contentions that her inability to improve her
situation stems from her mental disability,
her poverty, and other personal problems. The
avowed legislative policy with respect to
termination of parental rights, however, is
that the interests of the child take
precedence over conflicting interests of the
parent. . . . Her failure to [demonstrate her
willingness to correct the conditions that led
to the removal of her children] supports a
finding of willfulness regardless of her good
intentions. A contrary conclusion would
impermissibly give priority to the interests
of the parent where they clearly conflict with
the interests of the child.
Bishop, 92 N.C. App. at 669, 375 S.E.2d at 681.
In this case, the trial court was entitled to conclude that
the respondent mother had failed to make adequate progress in
changing the conditions that led to the removal of R.G. Evidence
of only two attempts at obtaining employment over more than a year
and no evidence of ever obtaining housing suitable for a child
supports the trial court's determination that the mother had shown
a lack of reasonable progress. See In re Frasher, 147 N.C. App.
513, 516, 555 S.E.2d 379, 381-82 (2001) (grounds existed toterminate parental rights when, at the TPR hearing, the mother was
still not employed and had not obtained stable housing). Compare
Nesbitt, 147 N.C. App. at 359-60, 555 S.E.2d at 666 (the mother
made reasonable progress when, after her child's removal, she
maintained a home for almost a year, made continued efforts to
secure employment, and held several jobs).
Under N.C. Gen. Stat. § 7B_1111(a), the trial court need only
find that one statutory ground for termination exists in order to
proceed to the dispositional phase and decide if termination is in
the child's best interests. In re Shermer, 156 N.C. App. 281, 285,
576 S.E.2d 403, 407 (2003). Even though the trial court erred with
respect to two of the grounds, the validity of the third ground
supports the trial court's ultimate decision. In re B.S.D.S., 163
N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004) ("Having concluded
that at least one ground for termination of parental rights
existed, we need not address the additional ground of neglect found
by the trial court.").
The effect of the TPR order below will not, therefore, conflict
with any contact that T.T., an adult, chooses to have with the
respondent father.
In further arguing that the trial court abused its discretion,
both respondents rely upon their own view of the evidence and their
contentions that they were in fact making adequate progress towardalleviating the conditions that led to the removal of R.G. from
their custody. The trial court was, however, entitled to focus on
(1) the fact that when R.G. was born, her parents were homeless and
unemployed and her father was an untreated sex offender who also
raised concerns of domestic violence, and (2) the fact that, at the
time of the TPR hearing, both parents were still unemployed,
neither had obtained stable housing suitable for a child, and the
father was still an untreated sex offender who had failed to
complete the required domestic violence program. In light of the
trial court's findings, as supported by the evidence, we do not
believe that the trial court's decision to terminate respondents'
parental rights to R.G. was manifestly unreasonable.
Affirmed.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
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