An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04_1323


Filed: 16 August 2005

IN THE MATTER OF                Mecklenburg County
    R.G.,                    No. 04 J 196
    minor child.

    Appeal by respondents mother and father from order entered 8 June 2004 by Judge Avril U. Sisk in Mecklenburg County District Court. Heard in the Court of Appeals 20 April 2005.

    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.

    R.G. was born in Charlotte, North Carolina on 30 December 2002 to respondents, who were unmarried and homeless at the time. Soon after the child's birth, the Mecklenburg County Department of Social Services, Division of Youth and Family Services ("DYFS") received two referrals concerning R.G.: the first, on 9 January 2003, stated that the parents were panhandling with the child, while the second, on 17 January 2003, reported that R.G. had been admitted to the hospital for failing to gain weight properly.
    Upon investigating these referrals, DYFS learned that (1) the mother had received no pre-natal care, R.G. had been born in a breech birth, and R.G. had "other medical issues"; (2) the parents, although homeless, were participating in the Rooms at the Inn program through Urban Ministries; (3) the father had been convicted of sexually molesting his older daughter, T.T.; and (4) the mother had been hospitalized for alcohol poisoning five times between October 2000 and August 2001, and she had a blood alcohol content of .393 at the time of the child's birth. Following its investigation, DYFS made arrangements for the mother and R.G. to stay with T.T., the respondent father's adult daughter. The mother, however, soon left and reunited with the father.    On 28 April 2003, the trial court adjudicated R.G. as neglected and dependent and granted custody to DYFS based on stipulations by the parents regarding their homelessness, the mother's use of alcohol, the mother's violation of the DYFS plan to stay with T.T., and the father's sexual molestation conviction. The court found (1) "based on the father's demeanor in Court and his stipulations that he is not competent to care for the child" and (2) "[t]he child could not be adequately cared for by these parents during the day because they had no means to support themselves other [than] by panhandling." In addition, the court found based on the father's testimony and the parents' stipulations that "the child was in [an] environment injurious to her health and was not receiving proper care, supervision or discipline."
    The court's order set out a case plan for the parents:
        a.    The mother needs to address substance abuse issues and treatment at Cascade. [The father] has no recommendation for substance abuse treatment at this time.

        b.     The parents will provide adequate care for the child.

        c.    The parents will complete parenting classes at the Family Center.

        d.    The parents will demonstrate what they learn from the parenting program during the visit.

        e.    The parents will provide a safe nurturing environment for the child.

        f.    The father will complete a sex offender's assessment and comply with treatment recommendations.
        g.    The parents will complete a parenting evaluation to determine whether they can provide appropriate care for the child.

Following entry of this order, DYFS specifically included in the parents' case plan the need to obtain stable housing and employment and the need to obtain individual mental health counseling.
    R.G. was placed in foster care with her half-sister T.T. and began supervised visitation with her parents. On 11 June 2003, an altercation occurred while the parties were at the courthouse for a court appearance. While in the waiting area, R.G.'s father "continually harassed, intimidated and threatened" T.T. in the presence of R.G. and several social workers and attorneys. On the same day, the father told a DYFS social worker that "he would make sure that he buried" T.T. and that "he would make sure that no one else would raise his baby."
    As a consequence of this incident, T.T. secured a restraining order against the father, and R.G.'s Guardian ad Litem filed a motion for an emergency hearing to request that parental visitation be terminated. The court denied the Guardian ad Litem's motion, but noted, with respect to visitation, that DYFS was "to use discretion to make adjustments should there be problems between" the father and T.T. The court also adopted DYFS' recommendation that, among other things, the father "complete an assessment at NOVA [a domestic violence program] and comply with the treatment recommendations."
    On 27 October 2003, after R.G. had been in T.T.'s care for about nine months, the trial court conducted a review hearing, atwhich time the court received into evidence psychological and substance abuse evaluations of each parent. The court noted that the mother had completed a substance abuse program, but that there had been "[n]o progress toward correcting problems with unemployment and housing." The court declined to change the permanent plan to termination of parental rights because the "parents have not had sufficient time to address concerns noted in [their] evaluations." The court also requested further psychological evaluation of the parenting capacity of each parent.
    Following a permanency planning hearing on 4 December 2003, the court reported that "[n]ot much progress has been made by either parent in eliminating the problems that necessitated the placement of the child." The court determined that it would not be possible to return R.G. home safely within six months "because the parents are homeless, only the mother is employed and she has only recently secured employment, and the parents' psychological problems cannot be resolved in six months." Based on these findings, the court changed the permanent plan for R.G. from reunification to adoption and directed DYFS to file a petition for termination of parental rights. Nevertheless, the court also directed that visitation between R.G. and her parents continue and required DYFS "to be generous with the parent's visits and make up visits if the reason for the missed visit is not due to the parent's fault."
    Following a hearing on 10 May 2004, the court entered an order on 8 June 2004 terminating respondents' parental rights on thegrounds of (1) neglect under N.C. Gen. Stat. § 7B_1111(a)(1) (2003); (2) failure to "provide substantial financial support and consistent care;" and (3) willfully leaving R.G. in foster care for more than 12 months without showing that reasonable progress has been made in correcting those conditions that led to the removal of R.G., under N.C. Gen. Stat. § 7B_1111(a)(2). The court further concluded that the best interests of R.G. would be served by termination of respondents' parental rights. Both parents have appealed from this order.

    A termination of parental rights proceeding involves two separate analytical phases: an adjudicatory stage and a dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). A different standard of review applies to each step.
    At the adjudicatory stage, "the 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). If the trial court concludes that the petitioner has proven grounds for termination, this Court must determine on appeal whether "the court's findings of fact are based upon clear, cogent and convincing evidence and [whether] the findings support the conclusions of law." In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996). Factual findings that are supported by the evidence are binding on appeal, even though there may be evidenceto the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 321 (1988).
    If the trial court concludes that the petitioner has met its burden of proving at least one ground for termination, the trial court proceeds to the dispositional phase and decides whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2003); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. This Court reviews that decision under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
    Respondents have assigned error to each of the trial court's conclusions of law specifying the grounds for termination, to the pertinent findings of fact, and to the court's best interests determination. We agree that the trial court erred with respect to two of the grounds for termination, but uphold the trial court's order to the extent it is based upon N.C. Gen. Stat. § 7B_1111(a)(2).
Adjudicatory Stage
    With respect to the trial court's conclusion that R.G. was neglected _ the ground set out in N.C. Gen. Stat. § 7B-1111(a)(1) _ it is well-established that "[a] finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." Young, 346 N.C. at 248, 485 S.E.2d at 615. "[A] prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect." In re Ballard, 311 N.C. 708, 713_14, 319 S.E.2d 227, 231 (1984). If, however, as here, the child has been removed from the parents' custody before the termination hearing, then "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Id. at 715, 319 S.E.2d at 232. In those circumstances, "parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (emphasis added).
    In this case, while the trial court found that R.G. had previously been adjudicated neglected, it failed to make any finding as to the probability of repetition of neglect in the future if R.G. were returned to her parents. In the absence of a specific finding to this effect, as required by Ballard and Reyes, the trial court's findings of fact do not sufficiently support the conclusion that R.G. was neglected within the meaning of N.C. Gen. Stat. § 7B_1111(a)(1).
    The trial court's second ground for terminating respondents' parental rights states in its entirety: "That respondent parents in this case have failed to provide substantial financial support and consistent care with respect to the juvenile in this case." The court does not specify the statutory ground under N.C. Gen. Stat. § 7B-1111(a) to which this conclusion refers. The language,however, bears a strong similarity to § 7B_1111(a)(5), which provides for termination if:

        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.").    

Dispositional Stage
    If, as here, the petitioner meets its burden of proving that there are grounds to terminate parental rights, the trial court moves to the dispositional phase and considers whether termination is in the best interests of the child. In re Brake, 347 N.C. 339, 341, 493 S.E.2d 418, 420 (1997). The trial court is not required to automatically terminate parental rights in every case that presents statutory grounds to do so. Nesbitt, 147 N.C. App. at 352, 555 S.E.2d at 662. "The best interest of the child[] is thepolar star by which the discretion of the court is guided." Bost v. Van Nortwick, 117 N.C. App. 1, 8, 449 S.E.2d 911, 915 (1994) (internal quotation marks omitted), appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995).
    The father argues primarily that it was illogical for the trial court to sever his parental ties with R.G. when he was still free to pursue his relationship with T.T., the foster parent of R.G. He contends: "One could surmise then that R.G. would have to be spirited away whenever [the respondent father] visited [T.T.]." We note first that the trial court found and the record reflects that T.T. had obtained a restraining order against her father. In any event, the respondent father mistakes the nature of an order terminating parental rights. N.C. Gen. Stat. § 7B-1112 (2003) explains the effect of a TPR order:
    An order terminating the parental rights completely and permanently terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship, except that the juvenile's right of inheritance from the juvenile's parent shall not terminate until a final order of adoption is issued. The parent is not thereafter entitled to notice of proceedings to adopt the juvenile and may not object thereto or otherwise participate therein . . . .

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.

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

Footnote: 1
    We observe that the father claimed at the adjudication hearing that he could become a truck driver simply upon obtaining a letter from a doctor. At the termination of parental rights hearing, however, the father variously testified (1) that he was visiting Help for the Blind to obtain assistance with his eyes so that he could have his license reinstated; (2) that he needed to complete a truck driving training program, but he could enter the program "anytime [sic] [he] want[ed] to"; and (3) that he could not start the program until he completed all of DSS' other requirements. The father's testimony that he participated, from time to time, in a day labor pool doing construction work and landscaping established that there were no physical limitations on his ability to work. In short, the trial court was entitled to view the father's assertions regarding his efforts to find employment with some skepticism.

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