An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
IN THE MATTER OF Alamance County
A.P.R. Nos. 02 J 50
A.C.R., 02 J 51
Appeal by respondent mother from order entered 11 February
2004 by Judge J. Kent Washburn in Alamance County District Court.
Heard in the Court of Appeals 20 April 2005.
Jamie L. Hamlett for petitioner-appellee.
Richard Croutharmel for respondent-appellant.
The respondent mother appeals from the trial court's order
terminating her parental rights with respect to her two children,
A.P.R. and A.C.R. We hold that the trial court properly concluded
that the mother willfully left her children in foster care for more
than 12 months without making reasonable progress in correcting
those conditions that led to the removal of her children. We
further hold that the trial court did not abuse its discretion in
determining that termination of respondent's parental rights is in
the best interests of A.P.R. and A.C.R. Therefore, we affirm.
The trial court's order terminating the mother's parental
rights included 76 findings of fact. Respondent has assigned error
to only six of those findings of fact. "Where no exception istaken to a finding of fact by the trial court, the finding is
presumed to be supported by competent evidence and is binding on
appeal." Koufman v. Koufman
, 330 N.C. 93, 97, 408 S.E.2d 729, 781
(1991). The 70 findings of fact not assigned as error establish
the following facts.
A.P.R. was born on 4 February 1998, while his sister A.C.R.
was born on 24 November 1999. Their parents, the respondents, were
married in September 1998, separated in early 1999, and were
divorced in 2001. While married, the parents lived in
approximately three or four different places in Alamance County.
(See footnote 1)
From August 2000 until March 2001, the children lived
primarily with Deborah Murray, a family friend in Caswell County,
in order "to give the Respondent Mother an opportunity to get
herself together." From March 2001 until February 2002, the
children lived primarily with their mother, but would stay with Ms.
Murray for two to three days at a time. When the respondent mother
took the children to Ms. Murray, she would at times bring supplies
for the children, but at other times, she would not.
In January 2002, the Alamance County Department of Social
Services ("DSS") received a report that the children were not
receiving proper care from the respondent mother. The mother
entered into a safety plan with DSS on 5 February 2002 that
included the mother's agreement that she would accept community
services, provide a specific plan for the children, and keep incontact with her social worker. Also in February 2002, the mother
made arrangements, in conjunction with DSS, for the children to
return to live with Ms. Murray until the mother "could get on her
The respondent mother, however, retained custody of the
children during February and March 2002. Even though the
respondent father had been physically abusive to both the mother
and A.P.R., the mother, during this period, allowed the father to
take the children. After a few days, the respondent mother was
unable to locate either him or the children for a period of one to
two weeks. The father ultimately had the children for three weeks,
but then brought the children to Ms. Murray because he "needed to
go to work."
Once Ms. Murray had custody of the children, the respondent
mother was scheduled to keep the children every other weekend, but
she did not always do so. The trial court found that when the
social worker asked the mother why she could not stay with her
children, the mother replied "that she had places to go and friends
to see and could not stay home."
On one weekend that the children were supposed to be spending
with their mother, the mother got into a physical altercation with
her father because he was intoxicated. The mother then left the
children in his care, knowing that he was intoxicated and unable to
care for the children. After Ms. Murray spoke with one of the
children on the telephone, she called the police. At times, Ms. Murray did not know how to contact the
respondent mother about the children. On one occasion, Ms. Murray
needed to have a prescription filled for A.C.R.'s daily kidney
medication, but was unable to do so because she did not have
A.C.R.'s Medicaid card. DSS and Ms. Murray requested on several
occasions that the respondent mother provide Ms. Murray with the
children's Medicaid cards, but it ultimately took "several months"
for the mother to provide the cards.
On 12 June 2002, the children were adjudicated as neglected
and dependent in open court. As reflected in the court's 6 August
2002 Juvenile Adjudication and Disposition Order, the mother
admitted, under oath, the allegations in the petition filed by DSS,
including: (1) that the mother had repeatedly left her children
for extended periods of time with caregivers who had no way of
contacting her; (2) that the mother would repeatedly leave her
children with her father when the children were supposed to be
spending the weekend with her; (3) on one weekend, the mother
called Ms. Murray 20 minutes after receiving the children to ask
Ms. Murray to come back and get them; (4) the mother left her
children with her father when he was intoxicated (registering a .18
in a breathalyzer test); and (5) A.C.R. was not given her daily
kidney medication for approximately two weeks despite offers of
assistance by DSS in obtaining the medication.
On 3 June 2002, the respondent mother entered into a family
services case plan with DSS. Under this plan, the mother was
required to obtain and maintain steady employment, obtain andmaintain a safe and stable home, apply for services at DSS, turn
herself into probation, follow through with all recommendations of
her probation officer, demonstrate proper parenting techniques, and
attend appointments at Children and Youth Services with A.P.R.
Respondent mother was on probation from 13 December 2001
through 28 June 2002 and was required to comply with the regular
conditions of probation and attend TASC, a substance abuse program,
and anger management classes. When she failed to comply, she was
placed on intensive probation as of 27 June 2002. The terms of her
probation included a curfew, warrantless searches, a prohibition on
leaving the county, community service, TASC, and anger management.
Respondent did not comply with these terms, completing only 5.5 of
her 50 community service hours and incurring six curfew violations.
She took part in a TASC screening, but did not follow through with
treatment. She tested positive for marijuana once and for cocaine
While under intensive probation, respondent lived at four
different locations, including a boarding house, with her father,
at an address in Burlington, and in a motel. During this time, she
had two or three short-term jobs. On 8 November 2002, respondent
entered into another family services case plan, in which she again
agreed to obtain and maintain a stable job and housing for her
In February 2003, respondent received a 75-day sentence for
violation of her probation. Respondent had a visit with her
children scheduled for 5 February 2003, the day before she was dueto be incarcerated. Respondent missed the visit, admitting that
she used drugs on the evening of 4 February 2003 or early hours of
5 February 2003.
On 14 April 2003, after she was released, respondent entered
into a third family services case plan that included the same terms
as before, but also required her to be assessed for "mental
illness/anger management/substance abuse," and to follow any
recommendations resulting from that assessment.
On 24 April 2003, respondent was admitted to Alamance-Caswell
Mental Health and diagnosed by Dr. Litz with cocaine abuse and
panic disorder. It was recommended that she attend a women's group
for substance abuse two days a week and individual therapy also
twice a week. By the time of the termination of parental rights
("TPR") hearing in November 2003, respondent had attended only four
individual therapy appointments and two group sessions. Respondent
was also supposed to see Dr. Litz every two to three months, but
she never saw Dr. Litz again after the initial appointment. The
trial court found that respondent's explanations for missing her
appointments were not credible.
On 1 August 2003, respondent entered into another family
services case plan. She was required to maintain steady
employment, maintain a residence for her and her children, save
checks from her employment in order to obtain her own residence,
continue to be free of drugs and alcohol, continue to see her
therapist and follow all recommendations, and visit regularly with
her children. From March 2002 through the TPR hearing, respondent lived at
10 different locations (not including the jail and Fountainview
Correctional Facility). At times, DSS was unable to obtain
accurate contact information for respondent for several months.
Although prior to her incarceration, respondent had a stable
residence and DSS wanted to assess the home in order to request
unsupervised visitation for the mother, it took a month for a
social worker to see the home because respondent missed several
scheduled appointments. By the time the assessment was completed,
the mother's probation was at risk of being revoked. At the time
of the TPR hearing, respondent had been renting a single-family
home for one month, but did not report this address to DSS until
immediately before the hearing.
During the period of DSS' involvement, respondent worked
periodically at adult entertainment establishments and for short
periods of time at Golden Corral and the Waffle House. The month
before the hearing, respondent began working part-time as an in-
home aide for Touched by Angels. The mother also testified that
she was attending community college with an intent to work towards
a nursing degree.
The trial court further found _ in findings not assigned as
error _ that respondent gave inconsistent statements during her
testimony and was not a credible or reliable witness. According to
the court, respondent's "willful acts such as testing positive for
illegal substances led to her incarceration for seventy-five (75)
days, which had a direct and negative impact upon her ability towork towards reunification with her children." Finally, respondent
"has consistently denied a substance abuse problem and has
continued to display instability."
The trial court concluded that grounds existed to terminate
the parental rights of both parents. With respect to the
respondent mother, the court based its decision on the mother's
having willfully left the children in foster care for 12 months
without showing to the satisfaction of the court that reasonable
progress had been made in correcting those conditions that led to
the removal of the children.
After a separate dispositional hearing, the court found that
since DSS was granted custody, the children had been placed with
Ms. Murray for six months, followed by placements in three foster
homes. The children had lived at their current placement since 6
August 2003, with foster parents who were willing to adopt them.
The court found that the children had "demonstrated behaviors that
indicate a need for extensive structure, stability and permanence.
These children need above-average nurturing and consistency and
follow through with therapist's directions." Based on the 76
findings of fact from the adjudication hearings and the additional
findings of fact from the dispositional hearing, the trial court
determined that it was in the best interests of the children to
terminate respondent's parental rights. Respondent timely appealed
from this order.
A TPR proceeding involves two separate analytical phases: an
adjudicatory stage and a dispositional stage. In re Blackburn
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). 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
, 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 evidence to the contrary. In re
, 91 N.C. App. 668, 674, 373 S.E.2d 317, 321 (1988).
If the trial court concludes that the petitioner met its
burden of proving at least one ground for termination, the 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,
In concluding that grounds existed for the termination of
respondent's parental rights, the trial court stated:That the Respondent has willfully left the
child[ren] in foster care or placement outside
the home for more than twelve (12) months
without showing to the satisfaction
court that reasonable progress under the
circumstances has been made within twelve
in correcting those conditions which
led to the removal of the child[ren].
(Emphasis added.) We first observe that the trial court has
recited an outdated version of N.C. Gen. Stat. § 7B-1111(a)(2)
(2003). The language requiring progress "within twelve months" has
been deleted from the current statute. Id. Despite the
misquotation, the court appears to have applied the correct
standard, examining the progress that the respondent mother made
throughout the time that her children were in DSS custody rather
than focusing on the 12 months preceding the filing of the TPR
Respondent first contends on appeal that the trial court's
findings of fact and the evidence do not demonstrate a lack of
progress. Our courts have held "that extremely limited progress is
not reasonable progress. 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 B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89,
93 (2004) (internal citations and quotation marks omitted). See
In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225
(1995) ("Implicit in the meaning of positive response is that not
only must positive efforts be made towards improving the situation,but that these efforts are obtaining or have obtained positive
In this case, the trial court's findings of fact establish
that respondent made only sporadic efforts towards alleviating the
conditions that caused removal of A.P.R. and A.C.R. and that the
mother has not achieved the "positive results" anticipated by Nolen
The unchallenged findings in this case reveal that
the respondent mother has entered into four different case plans
with DSS, all including a requirement of obtaining and maintaining
stable employment and housing and also including various
recommendations for therapy, substance abuse treatment, and
parenting classes. These same findings establish, however, that
between March 2002 and the TPR hearing, respondent resided in at
least twelve different locations; worked brief periods at various
jobs; and failed to regularly follow up with recommended mental
health and substance abuse treatment.
While respondent admits that "her progress before April 2003
was less than stellar," she
argues that since then she has
successfully corrected the conditions that led to the removal of
her children by ceasing drug usage, finding a place to live, and
getting a job. Respondent's brief states: "The evidence further
shows that her progress was not temporary and merely made for
appearance as she stayed off the drugs, maintained a residence, and
had a job throughout the latter half of 2003." The unchallenged
findings, however, indicate that any "stable residence" was
obtained only a month before the TPR hearing and that, also a monthbefore the hearing, the mother had started a new, part-time job
despite only two months earlier having entered into a case plan
requiring maintenance of "steady employment." A trial court is not
required to consider as reasonable progress efforts occurring only
when parental rights are in jeopardy. See B.S.D.S., 163 N.C. App.
at 546, 594 S.E.2d at 93 ("[R]espondent went to see a counselor
only three weeks prior to the [TPR] hearing. Such a delayed effort
has been deemed to be insufficient progress . . . ."); In re
Oghenekevebe, 123 N.C. App. 434, 437, 473 S.E.2d 393, 397 (1996)
(holding that trial court could rely upon "respondent's failure to
show any progress in her therapy until her parental rights were in
With respect to her failure to participate in therapy,
respondent offers various explanations for her non-compliance with
the therapy requirements. The trial court was not, however,
required to accept those explanations, but could rather find them
to be rationalizations. The court found, as it was entitled to do,
that respondent was not a reliable or credible witness. We may not
revisit that determination on appeal and supplant the trial court's
evaluation of respondent's explanations for not attending therapy
that was a requirement for regaining her children.
Respondent also contends that, in any event, her lack of
progress was not willful.
"A finding of willfulness does not
require a showing of fault by the parent." Id. at 439, 473 S.E.2d
Instead, "willfulness" for the purposes of § 7B_1111(a)(2)
is met when the parent has the ability to overcome his or herproblems 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 findings of fact establish that respondent
had the ability to comply with her case plans with DSS, but
nonetheless, for personal reasons, failed over 21 months to improve
her situation. Based on these findings of fact, the trial court
was entitled to determine that respondent acted willfully.
Nesbitt, 147 N.C. App. at 360, 555 S.E.2d at 666 ("Willfulness is
established when the respondent had the ability to show reasonable
progress, but was unwilling to make the effort."). We, therefore,
uphold the trial court's conclusion that grounds existed to
terminate respondent's parental rights.
With respect to the dispositional phase of the TPR
proceedings, respondent argues that "the evidence on best interests
tended to show only that the children were well settled in their
foster home and that the foster family was willing to adopt."
Respondent cites Nesbitt for her contention that the trial court
erred by making findings regarding the foster parents. Id. at 361,
555 S.E.2d at 667 ("[A]n independent decision of Ms. Nesbitt's
fitness to parent should be made, and only if she is found to be
either unwilling or unable to parent her child should the foster
home then be considered under the best interests standard."). Nesbitt addressed only the adjudicatory phase and not the
dispositional phase, in which the best interests of the child
control. At the dispositional phase, the trial court has already
made an independent decision regarding the parent's fitness to care
for her children and concluded that grounds exist justifying
termination of parental rights.
In this case, the trial court incorporated by reference its 76
findings of fact from the adjudicatory phase, as it was permitted
to do. Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910
("Evidence heard or introduced throughout the adjudicatory stage,
as well as any additional evidence, may be considered by the court
during the dispositional stage."). Those findings directly relate
to respondent's ability and willingness to provide for her
children. The trial court was also permitted, at the dispositional
stage, to consider the role of the foster parents. See, e.g., In
re D.J.D., __ N.C. App. __, __, __ S.E.2d __, __, 2005 N.C. App.
LEXIS 1268, at *27-28 (July 5, 2005) (in connection with the best
interests determination, noting that "there was sworn testimony
that their foster parents want to adopt them"); In re Brim, 139
N.C. App. 733, 744-45, 535 S.E.2d 367, 373-74 (2000) (holding that
the trial court did not abuse its discretion in terminating the
respondent's parental rights based on evidence that the child had
developed a close bond with the foster family and that the
respondent had not demonstrated she could adequately provide for
the needs of the child). In reviewing for abuse of discretion at the dispositional
stage, "[t]he best interest of the child is the polar 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). For a trial court's decision to be an abuse of
discretion, it must have been "manifestly unsupported by reason."
State v. Shoemaker, 334 N.C. 252, 261, 432 S.E.2d 314, 319 (1993).
The trial court's dispositional findings, in addition to the other
undisputed factual findings in the termination order, indicate that
the children have a demonstrated need for stability, steadiness,
and consistency, which are exactly the qualities with which the
trial court found the respondent mother struggles. Under these
circumstances, we cannot find that it was manifestly unreasonable
for the trial court to have concluded that termination of parental
rights was in A.P.R. and A.C.R.'s best interests.
While respondent argues that she too could have met the
children's needs, the trial court apparently did not believe her.
Indeed, in its supplemental findings of fact based on the
dispositional phase hearing evidence, the court noted that
respondent had, prior to the adjudicatory hearings, quit her
employment and was not enrolled in community college _ even though
respondent had testified at those hearings as if she were employed
and enrolled. The trial court was entitled to view this evidence
as further proof of respondent's instability, unreliability, andinability to meet the needs of her children. Accordingly, we
affirm the trial court's order.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
The trial court also terminated the father's parental rights.
The father did not appear at the hearing to oppose the termination
and is not a party to this appeal.
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