Appeal by respondent father from order entered 12 September
2005 by Judge Louis A. Trosch, Jr. in Mecklenburg County District
Court. Heard in the Court of Appeals 23 August 2006.
J. Edward Yeager, Jr. for petitioner-appellee.
Susan J. Hall for respondent-appellant father.
Nelson Mullins Riley & Scarborough, LLP, by Catharine W.
Cummer, for guardian ad litem.
No brief filed on behalf of respondent mother.
The respondent father, D.N., appeals from an order of the
district court terminating his parental rights with respect to his
minor daughter, S.N. On appeal, the respondent father challenges
the admission of testimony of a social worker, arguing that it
constituted inadmissible hearsay, and contends that the evidence
did not support the trial court's conclusion that grounds for
termination existed under N.C. Gen. Stat. § 7B-1111 (2005). We
hold that the testimony was admissible to show the respondent
father's knowledge of the terms of his case plan with petitioner
and that the trial court did not err in concluding that the
respondent father had willfully left his daughter in foster care
for more than 12 months without making reasonable progress under
the circumstances to correct the conditions that led to his
daughter's removal from his custody.
The record contains competent evidence indicating that the
child was removed from her parents' custody because she tested
positive for marijuana at birth and that the respondent father was
told that if he continued to reside with someone with an untreated
substance abuse problem, his home would not be considered
appropriate. Nevertheless, the respondent father chose to live
with the mother despite her refusal to obtain substance abuse
treatment or even acknowledge the need for such treatment. Theevidence and the trial court's findings amply support the court's
conclusion that grounds existed under N.C. Gen. Stat. § 7B-
1111(a)(2) to terminate the father's parental rights. We,
accordingly, affirm the trial court's order terminating the
respondent father's parental rights.
S.N.'s mother had four children prior to S.N. Those children
were all adjudicated to be neglected as a result of the mother's
substance abuse and allegations of domestic violence. During the
time Mecklenburg County's Division of Youth and Family Services
("YFS") was involved with these four children, the mother gave
birth to S.N. S.N. tested positive for marijuana at birth, and the
mother admitted to using marijuana while breast feeding the child.
YFS was granted custody of the child on 12 November 2003
because of the mother's continuing drug use and failure to adhere
to her prior case plan. S.N. was initially placed with her
paternal grandmother, but subsequently was placed in the custody of
Lutheran Family Services. Her parents were each ordered to pay
$50.00 per month in child support.
On 23 January 2004, the district court adjudicated the child
to be neglected and dependent as to the mother and dependent as to
the respondent father. The court found that the mother had failed
to comply with her case plan for her prior four children that
required completion of substance abuse treatment, parenting
classes, and domestic violence counseling. With respect to the
respondent father, the court found that he was aware of themother's involvement with YFS, and, although he was working and
wanted to provide placement for the child, he still resided with
Following a dispositional hearing on 10 February 2004, the
court entered its order on 19 February 2004, finding that returning
S.N. to the home was contrary to her best interests. At the
hearing, YFS submitted case plans for the parents. The mother was
required to obtain a substance abuse assessment, to follow all
recommendations resulting from the assessment, to actively seek
employment, to complete parenting classes, to attend weekly
visitation with the child, and to attend domestic violence
counseling. The respondent father was required to obtain a
substance abuse assessment and to follow all recommendations
resulting from that assessment, to maintain stable employment
sufficient to provide adequate income to meet his daughter's basic
needs, to maintain an adequate residence for his daughter, to
attend parenting classes, and to attend weekly visitation. The
permanent plan for the child was a concurrent goal of either
reunification or adoption.
On 9 March 2004, the mother's parental rights to S.N.'s four
siblings were terminated based primarily on the mother's failure to
adhere to her case plan, including her failure to participate in
domestic violence and substance abuse treatment, to obtain suitable
housing for her children, and to pay any amount toward the cost of
her children's care while they were in foster care. It does notappear from the record whether the mother appealed the termination
of her parental rights to the four children.
On 2 August 2004, S.N. was returned to her parents' home for
a trial placement. One week later, however, the mother tested
positive for marijuana, and, on 10 August 2004, the child was again
removed from the home. During the removal, the child appeared to
have been left home alone, and the home smelled strongly of
marijuana. The mother claimed she tested positive due to riding
home with a co-worker who smoked marijuana. On 19 August 2004, the
mother was supposed to submit to another drug test, but, after it
was determined that she had manipulated the urine screen, she
refused to submit to a second test.
In a court summary prepared 7 September 2004, YFS reported
that "[i]t has been discussed with [the respondent father] that
part of providing care for S.N. is providing an appropriate
environment for her care. It has been explained to him that even
if he is 100% compliant with his case plan but still maintaining a
relationship with [the mother] and she is not compliant with her
case plan he cannot be considered as an appropriate caretaker." As
of this date, the respondent father had not paid any child support
and was in arrears in the amount of $450.00, while the mother had
arrears of $314.00.
YFS recommended that the child's permanent plan be changed to
adoption. Following a permanency planning hearing on 16 November
2004, the trial court entered an order on 2 December 2004 finding
that it was not possible to return the child to the parents' homewithin the next six months because the mother continued to struggle
with substance abuse, and "[t]he father continues to reside with
the mother and has not evidenced any ability to independently care
for the child if the mother is not appropriate." Based on its
findings, the court changed the permanent plan for the child to
termination of parental rights and adoption.
Following a hearing on 2 August and 1 September 2005, the
trial court entered an order on 12 September 2005 terminating the
parental rights of both of S.N.'s parents. The court concluded
that the parents had (1) neglected the child, (2) willfully left
the child in foster care for more than 12 months without making
reasonable progress in correcting the conditions that led to the
removal of the child, and (3) failed to pay a reasonable portion of
the cost of the care of the child. With respect to the mother, the
court also concluded that her parental rights had been
involuntarily terminated as to another child, and she lacked the
ability or willingness to establish a safe home. The court then
concluded that the best interests of the child would be served by
termination of the parental rights of both her mother and father.
The respondent father timely appealed this order.
A termination of parental rights proceeding is conducted in
two phases: (1) an adjudication phase that is governed by N.C. Gen.
Stat. § 7B-1109 (2005) and (2) a disposition phase that is governed
by N.C. Gen. Stat. § 7B-1110 (2005). In re Blackburn
, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudicationstage, petitioner has the burden of proving by clear, cogent, and
convincing evidence the existence of one or more of the statutory
grounds for termination set forth in N.C. Gen. Stat. § 7B-1111. On
appeal, this Court determines whether the trial court's findings of
fact are supported by clear, cogent, and convincing evidence and
whether those findings of fact support the conclusions of law. In
, 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
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 may 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. We review the trial court's
decision regarding the child's best interests for an abuse of
discretion. In re Nesbitt
, 147 N.C. App. 349, 352, 555 S.E.2d 659,
 The respondent father first argues that the trial court
erred by admitting testimony by a social worker regarding
statements purportedly made by the respondent father's drug
counselor following his discharge from his substance abuse program.
The father points to the following testimony:
Q. [By guardian ad litem counsel:] Ms. McNiel,
did you attend with [respondent] his dischargestaffing from the SOAR program in June of
A. [By Ms. McNiel:] Yes.
Q. And did you talk with [respondent] about
what he was going to need to do as part of his
Q. Did you explain to him that he would need
to attend three meetings per week, continue
his 12-step work, maintain his sponsor, stay
clean[,] and once a month attend couples[']
counseling with [S.N.'s mother]?
A. Yes, and that came from his counselor
(Emphasis added.) Respondent's subsequent objection was overruled.
On appeal, respondent contends the social worker's testimony as to
what respondent's drug counselor may have said was inadmissible
"'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." N.C.R. Evid.
801(c). If a statement is offered for any other purpose, it is not
hearsay. State v. Dickens
, 346 N.C. 26, 46, 484 S.E.2d 553, 564
(1997). Here, respondent has failed to establish that an out-of-
court statement was offered for the truth of the matter asserted.
Instead, the social worker was testifying as to the terms of
respondent's case plan and respondent's knowledge of those terms.
In any event, even if the social worker's testimony is
construed as repeating what the counselor said regarding
respondent's substance abuse treatment plan, respondent has failed
to explain how he was prejudiced by the testimony. See State v.Locklear
, 349 N.C. 118, 149, 505 S.E.2d 277, 295 (1998) (the
appellant "has the burden of showing error and that there was a
reasonable possibility that a different result would have been
reached at trial if such error had not occurred"), cert. denied
526 U.S. 1075, 143 L. Ed. 2d 559, 119 S. Ct. 1475 (1999). Nor has
respondent demonstrated that the trial court relied upon any
hearsay testimony. See Huff
, 140 N.C. App. at 301, 536 S.E.2d at
846 (in a bench trial, appellant must show that trial court relied
on incompetent evidence in making its findings). This assignment
of error is, therefore, overruled.
 We next consider respondent's contention that the trial
court erred when it concluded that grounds for termination existed
under N.C. Gen. Stat. § 7B-1111(a)(2). Under this statute, a trial
court may terminate a respondent's parental rights when "[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." N.C. Gen. Stat. §
Respondent argues that "he had completed his entire case plan
and that he had not wilfully left [S.N.] in Petitioner's custody in
that he had made reasonable progress under the circumstances which
led to the removal of [S.N.]." We hold that the trial court's
conclusion that this ground existed is supported by its findings offact and that those findings of fact are, in turn, based on
In concluding that the respondent father had willfully failed
to make "reasonable progress under the circumstances [toward] . .
. correcting those conditions which led to the removal of the
juvenile," N.C. Gen. Stat. § 7B-1111(a)(2), the trial court found
that the respondent father had complied with a number of the
elements of his case plan. With respect to the requirement that he
maintain appropriate housing, however, the court found:
15. The respondent father also maintained
housing and employment and completed the
FIRST Program. However, the respondent
father maintained housing by living with
the respondent mother. He has never
obtained independent housing such that he
could care for the minor child despite
the fact that the respondent mother had
tested positive for marijuana and not re-
engaged in substance abuse treatment.
16. [The respondent father] testified at the
termination proceeding that it was not an
element of his case plan. But [the
respondent father] was told repeatedly
during the underlying juvenile case that
if he resided with someone with an
untreated substance abuse problem his
home would not be appropriate regardless
of his case plan progress.
17. The father admits knowing that the child
was removed from the trial home placement
due to the mother's positive drug screen.
He furthermore admits to knowing that the
mother has not re-engaged in treatment.
Despite that, however, the father has
made no efforts to establish a safe,
drug-free home for the child.
. . . .
20. At the termination proceeding the parents
demonstrated that they had made someefforts. They attended some meetings.
The mother has gone to individual
counseling through the SAIL program. And
the parents have maintained employment
and housing. This pattern of behavior is
similar to the period before the other
children were removed from the mother's
21. The court however cannot find that the
parents have made substantial progress.
Furthermore, in that the respondent
mother is not currently engaged in
treatment or even acknowledging the need
for treatment the court finds that the
risk of relapse and repetition of neglect
Further, the trial court found that the respondent father was not
in compliance with the "minimal child support order."
The respondent father assigned error to these findings,
arguing that they were not supported by competent evidence. In
particular, he contends that "[p]etitioner never made a condition
of [the father's] written case plan
that he separate from [the
mother]." (Emphasis added.) The trial court, however, found that
the father "was told repeatedly
during the underlying juvenile case
that if he resided with someone with an untreated substance abuse
problem his home would not be appropriate regardless of his case
plan progress." (Emphasis added.) Ample evidence exists in the
record to support this finding.
At trial, respondent himself testified as follows under cross-
examination by the guardian ad litem attorney:
Q. Do you recall Ms. McNiel saying to you that
even if you are 100 percent compliant with
your case plan but still maintaining a
relationship with [S.N.'s mother] and she is
not compliant with her case plan you cannot be
considered as an appropriate caretaker?
A. I don't recall that.
. . . .
Q. So that was not discussed with you on
November 12th, 2003 when we came to court for
the first time that [S.N.] was placed with
A. That's true _ yeah, I'm guessing that _ I'm
guessing I must have forgot that
. . . .
Q. . . . And isn't it true that Ms. McNiel
said to you, one of the things you can do is
set up your own household to provide care for
A. Well, yeah, she did when you put it that
(Emphases added.) Likewise, the record contains a letter from DSS
to respondent stating that, "if one of you [(S.N.'s parents)] is
not in compliance with your case plan and you remain together as a
couple that will impact the decision regarding S.N.'s placement."
To the extent that respondent is contending that the trial
court may look only at the conditions contained in a written case
plan in deciding, under N.C. Gen. Stat. § 7B-1111(a)(2), whether a
lack of reasonable progress has been made, respondent has cited no
authority to support that position. The statute does not refer to
a written case plan, which is simply one means of documenting what
a parent needs to do. Indeed, the plain language of the statute
focuses on whether the parent has made "reasonable progress" toward
"correcting those conditions which led to the removal of the
juvenile" from the parents' custody. N.C. Gen. Stat. §
7B-1111(a)(2). Here, the child was removed because of the mother'sdrug usage. If the child were returned to her father's custody,
the conditions that led to the original removal of the child would
not have been corrected because the father is still residing with
the mother, and the mother's substance abuse is still untreated.
In short, although respondent may have made some progress
toward his case plan, he did nothing to remedy the fact that he was
maintaining a home with S.N.'s mother that rendered him ineligible
to receive custody. The respondent father effectively chose S.N.'s
mother over S.N. See Huff
, 140 N.C. App. at 299, 536 S.E.2d at 845
("[W]here a mother chooses to marry a man who has previously abused
her child, there is obviously an increased likelihood that the
child will suffer further harm if parental rights are not
terminated."); In re Nolen
, 117 N.C. App. 693, 699, 453 S.E.2d 220,
224 (1995) ("A finding of willfulness is not precluded even if the
respondent has made some efforts to regain custody of the
children."). Respondent makes no argument _ and we can discern no
reason _ why he could not have established a home separate and
apart from S.N.'s mother and thereby remedied the conditions that
led to S.N.'s removal. See In re McMillon
, 143 N.C. App. 402, 410,
546 S.E.2d 169, 175 ("Willfulness is established when the
respondent had the ability to show reasonable progress, but was
unwilling to make the effort."), disc. review denied
, 354 N.C. 218,
554 S.E.2d 341 (2001).
We, therefore, conclude that the trial court's determination
that respondent willfully failed to make reasonable progress toward
correcting the conditions that led to S.N.'s removal was supportedby clear, cogent, and convincing evidence. "Having concluded that
at least one ground for termination of parental rights existed, we
need not address the additional ground[s] . . . found by the trial
court." In re B.S.D.S.
, 163 N.C. App. 540, 546, 594 S.E.2d 89,
As YFS met its burden of proving that at least one statutory
ground for termination existed, the trial court had discretion to
terminate parental rights upon a finding that it would be in the
best interests of S.N. to do so. Blackburn
, 142 N.C. App. at 613,
543 S.E.2d at 910. Here, the trial court did indeed find
termination would be in S.N.'s best interests, and, given
respondent's ongoing refusal to live separate and apart from S.N.'s
mother, who suffered from persistent untreated substance abuse
problems, we see nothing manifestly unreasonable about this
decision. Compare, e.g.
, Bost v. Van Nortwick
, 117 N.C. App. 1, 8-
9, 449 S.E.2d 911, 915 (1994) (trial court abused its discretion
when it terminated parental rights solely because children were
financially better off in current foster home), appeal dismissed
340 N.C. 109, 458 S.E.2d 183 (1995).
Judges CALABRIA and JACKSON concur.
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