An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 October 2005
IN THE MATTER OF: Mecklenburg County
M.B. and E.W., Nos. 03 J 952, 953
Appeal by respondent-parents from order entered 28 June 2004
by Judge Louis A. Trosch, Jr., in Mecklenburg County District
Court. Heard in the Court of Appeals 24 August 2005.
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., for Mecklenburg County Youth and Family Services
Duncan B. McCormick for L.W. respondent-mother appellant.
Leslie C. Rawls for N.B. respondent-father appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Donald R. Esposito,
Jr., for Guardian ad Litem appellee.
Respondent-parents L.W. and N.B. appeal from a district court
order terminating their parental rights. We affirm.
Respondent L.W. is the biological mother of both M.B. and E.W.
Respondent N.B. is the biological father of only M.B.
(See footnote 1)
children were placed in the custody of Mecklenburg County Youth andFamily Services (YFS) on 26 September 2002, and both were
adjudicated neglected juveniles on 30 December 2002.
Sometime before 22 January 2003, L.W. entered into a case plan
with YFS in which she agreed to maintain steady employment and
stable housing, complete a parenting class for children from zero
to four years of age and a parenting class for children from five
to twelve years of age, and become involved with the F.I.R.S.T.
program for substance abuse issues. Further, YFS requested that
she seek individual therapy. Since YFS became involved with L.W.,
she has not been continuously employed, and between January 2003
and May 2004, she moved at least three times. Further, YFS was
unable to locate her between August 2003 and January 2004. L.W.
did complete the class on parenting zero- to four-year-old
children, but failed to complete the class on parenting five- to
twelve-year-old children. When confronted about the fact that she
had not completed the second class, L.W. indicated that she was
unaware of this requirement; however, YFS records indicated that
she had been apprised of this requirement on two occasions. She
did not complete the substance abuse program to which she was
referred and did not subsequently enroll in any other substance
abuse program. Further, L.W. spent time in jail for failure to
participate in a court-related substance abuse program. Likewise,
she did not pursue individual therapy.
YFS also entered into a case plan with N.B. The provisions of
this plan required substance abuse treatment in a day program,
completion of a class on how to parent children between ages zeroand four, obtaining stable housing, and obtaining stable and
consistent employment. N.B. completed the substance abuse day
treatment program; however, he was subsequently arrested and
convicted of driving while intoxicated. Likewise, he completed the
required parenting class and maintained fairly stable employment.
At some point in 2003, N.B. moved in with his sister, who did not
want M.B. to live in her home. According to N.B., he had applied
for housing approximately ten times between the placement of M.B.
in the custody of YFS and the hearing of the petition to terminate
his parental rights, which spanned approximately two years;
however, he was unsuccessful due to his prior criminal record.
Further, although N.B. did visit with his child on some occasions,
he missed between four and ten visits and was late for three
others. As of May 2004, N.B. had paid $2,754 in child support, and
he was approximately $1,400 in arrears.
The YFS caseworker assigned to work with M.B. and E.W.
[the children were] in a loving [foster] home they've
been with for a year. The foster parents have a good
relationship. They interact as a family unit. And [as of
the termination hearing the children had] not seen their
parents . . . in over 10 months.
She added that the children were doing very well in foster care.
The trial court ruled that the parental rights of Leslie W.
and N.B. should be terminated because, inter alia
, E.W. and M.B.
were left in foster care or placement outside of the home for more
than twelve months and there was no showing that reasonable
progress had been made towards correcting the conditions which ledto their removal. Further, the trial court determined that the
best interests of the children would be served by the termination
of respondents' parental rights. Both L.W. and N.B. now appeal.
On appeal, L.W. contends that the trial court erred by finding
and concluding that she willfully left M.B. and E.W. in foster care
without making reasonable progress towards correcting those
conditions which led to the removal of the children. Similarly,
although N.B. characterizes his primary argument on appeal as a
challenge to certain findings made by the trial court, the gravamen
of his argument is that the trial court erred by finding and
concluding that he willfully left M.B. in foster care without
making reasonable progress towards correcting the conditions which
led to the removal of the child. We conclude that the challenged
determination with respect to each respondent must be affirmed.
This Court reviews an order terminating parental rights for
whether the findings of fact are supported by clear, cogent, and
convincing evidence, and whether those findings of fact support a
conclusion that parental rights should be terminated for one of the
grounds set forth in the General Statutes. In re Oghenekevebe, 123
N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). Where a trial
court concludes that parental rights should be terminated pursuant
to several of the statutory grounds, the order of termination will
be affirmed if the court's conclusion with respect to any one of
the statutory grounds is supported by valid findings of fact. In
re Swisher, 74 N.C. App. 239, 240-41, 328 S.E.2d 33, 34-35 (1985). Pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2003), a parent's
rights to a child may be terminated 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.
A finding of willfulness does not require a showing of fault by
the parent. Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at
398. Willfulness is established when the respondent had the
ability to show reasonable progress, but was unwilling to make the
effort. In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169,
175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341-42 (2001).
A finding of willfulness is not precluded even if the respondent
has made some efforts to regain custody of the children. In re
Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995). The
failure to abide by the terms of a case plan is evidence that a
parent has failed to make reasonable progress towards correcting
those conditions which led to the removal of the juvenile. In re
O.C., No. COA04-923, slip op. at 13-15, __ N.C. App. __, __, 615
S.E.2d 391, __ (filed 19 July 2005).
In the instant case, the trial court made findings of fact
that L.W. had failed to comply with her case plan in that, inter
alia, she (1) did not complete the class on parenting children from
age five to twelve; (2) did not complete the substance abuse
treatment program to which she was referred; (3) spent time in jail
for her failure to participate in court-affiliated substance abusetreatment; and (4) had not procured and maintained stable housing.
Likewise, the trial court made findings of fact that N.B. had
failed to comply with his case plan in that, inter alia, he (1)
never appropriately addressed his substance abuse problem, as
evidenced by a driving while impaired arrest and conviction
following completion of his substance abuse treatment; (2) only
completed approximately ten applications for housing in a two-year
period, which the court did not consider a diligent search; and
(3) was inconsistent in his visitation with the children in that he
was absent or tardy for several visits. All of these findings are
amply supported by clear, cogent, and convincing evidence presented
at the termination hearing through the testimony of YFS social
worker Laura Moreau. Further, these findings support the trial
court's conclusion that respondent parents have each willfully
left the juveniles 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] has been made in correcting
those conditions which led to the removal of the juveniles.
Our holding with respect to this ground for termination makes
it unnecessary for us to consider respondent parents' arguments
concerning the other grounds upon which their parental rights were
terminated. See Swisher, 74 N.C. App. at 240-41, 328 S.E.2d at
34-35. The corresponding assignments of error are overruled.
Both L.W. and N.B. also contend that the trial court abused
its discretion by determining that the best interests of M.B. andE.W. would be served by the termination of their parental rights.
If the trial court determines that grounds to terminate
parental rights exist, the court shall
issue an order terminating
the parental rights of such parent with respect to the juvenile
unless the court shall further determine that the best interests of
the juvenile require that the parental rights of the parent not be
terminated. N.C. Gen. Stat. § 7B-1110(a) (2003) (emphasis added).
The trial court's decision to terminate parental rights, if based
upon a finding of one or more of the statutory grounds supported by
evidence in the record, is reviewed on an abuse of discretion
, 143 N.C. App. at 408, 546 S.E.2d at 174.
As already indicated, the trial court properly found that
neither L.W. nor N.B. had complied with their case plan and that
neither of them had made sufficient progress towards correcting the
problems which led to the removal of E.W. and M.B. from Leslie W.
and the removal of M.B. from N.B. Furthermore, the evidence at the
termination hearing showed that the children were doing well in
their foster placement. Given these facts and circumstances, we
are unpersuaded that the trial court abused its discretion by
determining that the best interests of M.B. and E.W. would be
served by a termination of respondents' parental rights. The
corresponding assignments of error are overruled.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
An Ernest W. is the biological father of E.W. His parental
rights to E.W. were also terminated, but he is not involved in
the instant appeal.
*** Converted from WordPerfect ***