An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_1372

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
    minor children.

                                

    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.


    GEER, Judge.

    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.

Facts
    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 feet."
    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 nine times.
    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 children.
    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.

Discussion

    A TPR 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). 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 evidence to 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 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, 662 (2001).
    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 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 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 petition.
    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 also 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 results.").
    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 and B.S.D.S. 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 jeopardy").
    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 at 398. 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. See 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.

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


Footnote: 1
    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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