IN THE MATTER OF:
Rutherford County
C.T.A. No. 01 J 132-33
D.T.A., 01 J 135-36
Minor Children.
Cranfill, Sumner & Hartzog, L.L.P., by George L. Simpson, IV,
for guardian ad litem.
David Childers for respondent-appellant.
GEER, Judge.
The respondent father E.A. appeals from an order terminating
his parental rights as the father of C.T.A. and D.T.A. Based on
our review of the record under the applicable standards of review,
we affirm.
In August 2001, the Rutherford County Department of Social
Services ("DSS") became involved with C.T.A. and D.T.A. when C.T.A.
complained to a school nurse that his ear hurt and it was
discovered that cockroaches had burrowed into both of the boy's
ears. DSS filed two separate juvenile petitions, alleging that
C.T.A. and D.T.A. were dependent and neglected. The juvenile
petitions asserted that the mother had not been part of the
children's lives for years and that respondent E.A. had left theminor children in the care of his elderly parents without adequate
supervision and without providing financial assistance to maintain
them. DSS' investigation had revealed that the grandparents' home,
where the children had lived for nine months, was filled with
roaches. DSS took C.T.A. and D.T.A. into custody in September 2001
and the trial court adjudicated the minor children dependent and
neglected in January 2002.
The minor children remained in DSS' legal and physical custody
until March 2002 when DSS returned C.T.A. and D.T.A. to the
physical custody of their father in a trial placement. DSS took
C.T.A. and D.T.A. back into physical custody in August 2002
following an allegation of domestic violence between respondent and
his wife. In October 2003, DSS subsequently filed a petition to
terminate the parental rights of both respondent and the minor
children's mother, alleging, under N.C. Gen. Stat. § 7B-1111(a)(2)
(2003), that each had willfully left the children in foster care
for more than 12 months without reasonable progress under the
circumstances in correcting those conditions that led to the
removal of the children. On 15 February 2004, the trial court
terminated respondent's parental rights based on the statutory
ground set forth in N.C. Gen. Stat. § 7B-1111(a)(2). Respondent
appeals from the orders terminating his parental rights to C.T.A.
and D.T.A.
(See footnote 1)
A termination of parental rights proceeding is conducted intwo phases: (1) an adjudication phase that is governed by N.C. Gen.
Stat. § 7B-1109 (2003) and (2) a disposition phase that is governed
by N.C. Gen. Stat. § 7B-1110 (2003). In re Blackburn, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication
stage, petitioner has the burden of proving by clear, cogent, and
convincing evidence that one or more of the statutory grounds for
termination set forth in N.C. Gen. Stat. § 7B-1111 exist. The
standard of appellate review is whether the trial court's findings
of fact are supported by clear, cogent, and convincing evidence and
whether the findings of fact support the conclusions of law. In re
Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001).
If petitioner meets its burden of proving that grounds for
termination exist, the trial court then moves to the disposition
phase and must consider whether termination is in the best
interests of the child. N.C. Gen. Stat. § 7B-1110(a). The trial
court has discretion to terminate parental rights upon a finding
that it would be in the best interests of the child to do so.
Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. The trial
court's decision to terminate parental rights is reviewed under an
abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349,
352, 555 S.E.2d 659, 662 (2001).
With respect to respondent, the trial court concluded that the
following ground for termination of parental rights existed:
The parent has willfully left the juvenile in
foster care or placement outside the home formore 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.
N.C. Gen. Stat. § 7B-1111(a)(2). Respondent contends the trial
court's conclusion is not supported by competent evidence or
sufficient findings of fact. We find the evidence and findings
sufficient to support the order terminating parental rights and
affirm the decision of the trial court.
In this case, it is undisputed that the children were in
foster care for more than 12 months prior to the filing of the
petition. We must, however, also determine that there was clear,
cogent, and convincing evidence that (1) respondent "willfully"
left the juvenile in foster care for more than 12 months, and (2)
that respondent failed to make "reasonable progress" in correcting
the conditions that led to the children's removal from the home.
In re Bishop, 92 N.C. App. 662, 667, 375 S.E.2d 676, 680 (1989).
"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. Bishop,
92 N.C. App. at 668, 375 S.E.2d at 680. 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. In support of its conclusion that grounds existed under N.C.
Gen. Stat. § 7B-1111(a)(2) to terminate respondent's parental
rights, the trial court made the following pertinent findings of
fact:
(See footnote 2)
(7) This child has now been in the
custody of the Rutherford County Department of
Social Services for longer than two years.
Since mid August 2002 the child has been in
the actual care and supervision of the
Department of Social Services following an
unsuccessful experiment in returning the child
to the care of his father.
. . . .
As to the father, he has accomplished
numerous perfunctory things while his child
has been in custody of the Rutherford County
Department of Social Services such as
completing anger management. On the other
hand, from August 2002 when the child was
removed from the father's physical custody
following an unsuccessful trial home visit
until the date of hearing the father only
scheduled visitation on February 11, 2003,
March 18, 2003, April 22, 2003, May 20, 2003,
June 30, 2003 and December 11, 2003. The
father for reasons never provided to the child
or social workers failed to appear for the
June 30, 2003 visit. He has been very evasive
about where he has been residing since his
return to Rutherford County in 2002. Notably
the father's performance has been totally
lacking in the area of providing monetary
support for his child, despite ample evidence
that he has had employment and can readily
obtain new employment when for whatever reason
his prior employment is terminated.
This child was initially placed into
foster care because of incredible filth in the
home of his paternal grandparents where he was
residing at the time. The home was roach-infested to the extent that the child required
medical treatment to remove a bug from inside
his ear canal. The child's condition was
discovered by school personnel and not by the
parents or the grandparents.
Although the father of this child
obtained appropriate housing nearly
immediately after Rutherford County DSS
assumed custody, he has since lost that
housing on account of a dispute with his wife
which involved acts of domestic violence. For
the past year the father has not maintained a
residence suitable for the care and custody of
his child. He has been at best vague and at
worst elusive as to where he has been residing
when questioned by social workers and the
guardian ad litem. Neither the social worker
nor the guardian ad litem have been able to
visit in any residence where they could
confirm that the father was residing since the
child was returned to the physical custody of
Rutherford County DSS nearly one year ago
despite numerous requests for the location of
the father's residence and for home visits.
As to each parent grounds for termination
of parental rights as alleged in the motion in
the cause has been proven to exist. As to the
mother there is absolutely no reason not to
terminate her rights. As to the father, while
the Court sees some benefit in terminating
parental rights, there appears to be no
benefit in the father retaining parental
rights. His involvement in the past year has
been no greater than had he passed away a year
ago. He has not provided any benefit,
tangible or intangible, to this child for
nearly a year.
(8) The mother and father have therefore
willfully left the child in foster care for
more than 12 months without reasonable
progress under the circumstances in correcting
those conditions which led to the removal of
the child.
(9) There does not appear to be any
reason why it would not be in the best
interests of the named juvenile that the
parental rights of both parents be terminated.
To the contrary, it affirmatively appears thatit is in the best interests of the named
juvenile that the rights of his parents be
terminated. The mother has had no contact
with the juvenile for a number of years after
having abandoned him. The father initially
showed some parenting skill, but for the past
year or longer has been more a source of
disappointment than a benefit to the child.
He has visited only rarely. He misses visits
that have been scheduled thereby upsetting the
child. He makes promises which he does not
fulfill, such as promises of expensive gifts
for the child. All these acts of the father
have a disruptive effect upon the child and
are not in his continued best interest.
Respondent has not specifically assigned error to any of these
findings of fact, and they are, therefore, presumed to be correct
and supported by the evidence. In re Padgett, 156 N.C. App. 644,
648, 577 S.E.2d 337, 340 (2003).
In any event, a review of the record and transcript shows that
each of the trial court's findings are based upon orders entered in
the case and testimony from a DSS social worker and the guardian ad
litem. The social worker testified that respondent signed a case
plan and initially made progress towards accomplishing the goals of
the case plan by completing marital counseling, completing
parenting classes, visiting with the children, and obtaining
adequate housing for the children. The social worker also
testified that the children were placed in a trial placement with
respondent, but were returned to DSS in August 2002 after
respondent and his wife had a domestic argument. The social worker
further testified that once the children were returned to DSS,
respondent did not speak with the social worker until January 2003.
Since that time, respondent's visits became sporadic and DSS hasbeen unable to establish respondent's living arrangements. The
guardian ad litem testified that respondent had not regularly
visited with the children since they were returned to DSS in August
2002 and that she could not confirm where respondent was living.
She further testified that although respondent told the children
that they would have "computers and games and videos" if they lived
with him, she has not "found anything that substantiates what he
says" and that respondent's promises caused the children to become
"troublesome."
We conclude that the trial court's findings of fact were based
on clear, cogent, and convincing evidence and, based on those
findings, that the trial court properly determined that respondent
had left the minor children in foster care for 12 months without
reasonable progress. We further hold that these findings support
the court's conclusion that respondent was subject to having his
parental rights terminated pursuant to N.C. Gen. Stat. §
7B-1111(a)(2). 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.").
Further, based on the court's findings regarding respondent's
limited visitation and contact with his sons since their return to
DSS custody and the lack of any indication that he has or will
obtain a residence suitable for the children, we cannot find any
abuse of discretion in the trial court's decision that termination
of parental rights was in the children's best interests.
Accordingly, the order entered by the trial court is affirmed.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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