Appeal by respondent mother from order entered 23 July 2004 by
Judge John W. Smith in New Hanover County District Court. Heard in
the Court of Appeals 11 October 2005.
Julia Talbutt for petitioner-appellee.
Lisa Skinner Lefler for respondent-appellant.
Regina Floyd-Davis for guardian ad litem.
GEER, Judge.
The respondent mother L.L. appeals from an order terminating
her parental rights with respect to her minor daughter, S.R.L.
L.L. argues on appeal that the trial court erred by denying her
attorney's motion to withdraw and failing to appoint substitute
counsel and by failing to appoint a guardian ad litem for her.
Because the mother did not express any dissatisfaction with her
appointed counsel and has failed to demonstrate that her appointed
counsel's performance was deficient and because a guardian ad litem
was not required under the applicable statute, we hold that the
trial court's rulings were proper. Further, we hold that the
evidence supported the trial court's findings of fact and
conclusions of law that grounds existed to terminate the mother'sparental rights and that termination was in the best interests of
S.R.L.
Facts
S.R.L. was born on 19 January 2002. At the time of her birth,
both S.R.L. and her mother tested positive for cocaine. Before
L.L. and the child were discharged from the hospital following the
birth, a social worker from the New Hanover County Department of
Social Services ("DSS") visited L.L. to discuss a case plan that
would provide a safe and substance-free environment for the child.
L.L. refused to sign any plan.
On 30 January 2002, DSS filed a petition alleging that S.R.L.
and her two older half-sisters were neglected and dependent
children.
(See footnote 1)
On the same date, the district court entered an order
placing S.R.L. in the non-secure custody of DSS. Pursuant to this
order, DSS placed S.R.L. in foster care immediately upon her
discharge from the hospital. S.R.L. has remained in foster care
continuously since that time.
An assessment on 18 February 2002 revealed that L.L. was
dependent on cocaine, cannabis, and alcohol. In that same month,
L.L. entered into a case plan with DSS to address issues of
substance abuse, domestic violence, and neglect. The case plan had
a goal of reunification with S.R.L. and called for L.L. to attend
the New Visions outpatient program for substance abuse treatment
and to submit to regular drug screens. Visitation with S.R.L. wasmade contingent on these periodic drug screens being negative.
L.L. initially complied with the case plan and entered the New
Visions Program.
By July 2002, the staff at New Visions became concerned about
L.L.'s prescription drug addiction, the intensity of which she
denied. Starting on 2 August 2002, L.L. entered the Walter B.
Jones Treatment Center for 21 days of in-patient treatment. L.L.
was offered the opportunity to have S.R.L. accompany her during
those 21 days, but she declined.
Following L.L.'s discharge from the treatment center, she
returned to the New Visions program, where she continued to make
progress for approximately three months. In November 2002,
however, she was asked to leave New Visions due to the anger,
hostility, and defensiveness she expressed in group meetings.
Although L.L. was referred to the Dialectical and Behavioral
Therapy group at the Southeastern Center for Mental Health, she
claimed that transportation issues prevented her participation.
From 22 February 2002 through 20 June 2003, L.L. had 19 or 20
visits with S.R.L., out of 26 or 27 opportunities. On 23 June
2003, L.L. went to her drug screening at TASC, but did not
initially produce a sample sufficient for testing. When requested
to produce additional urine so that her drug screen could take
place, L.L. became hostile and began using profanity, causing the
director of TASC to bar L.L. from the premises for six months.
Following this incident, L.L. was denied visitation with S.R.L.because her sobriety and abstinence from drugs were no longer being
verified.
During 2003, L.L.'s attendance at court proceedings involving
S.R.L. was spotty. She failed to appear for the hearing on her own
motion for review on 9 January 2003 and also did not attend a
permanency planning hearing on 30 January 2003. At a later review,
L.L. attended court on the proper day, but left before her case was
called. Finally, L.L. refused to attend a 13 November 2003 review
hearing following service of the petition to terminate her parental
rights. Although L.L. was incarcerated at the time, a writ of
habeas corpus ad testificandum had been issued to ensure her
appearance at the hearing if she wished.
Between the time of her release from the Walter B. Jones
Treatment Center in August 2002 and the time of the termination
hearing in March 2004, L.L. was employed for a total of 10 days.
She also showed continual hostility to the social worker assigned
to her case, sometimes refusing to communicate with her altogether.
The social worker was only able to keep track of L.L.'s whereabouts
by contacting L.L.'s mother. During the time period leading up to
the termination of parental rights hearing, L.L. was in and out of
jail and was involved in multiple incidents of domestic violence
with S.R.L.'s father, including several instances in which law
enforcement determined that she was the aggressor and that alcohol
and substance abuse had played a role in the violence.
Since being released from custody in December 2003, L.L. has
resided with her mother in Wilmington. At the time of the hearingbelow, in March 2004, L.L. testified that she had not used any
drugs or alcohol since 3 September 2003 and that she attended AA
meetings regularly. She also stated that she intended to begin
group therapy at the Southeastern Mental Health Center and that she
was undergoing an alcohol assessment to fulfill the requirements
necessary to regain her operator's license. The trial court found,
however, that L.L. had previously refused the assessment, even
though she knew that a valid license would have facilitated
visitation with her daughter.
DSS filed its petition to terminate L.L.'s parental rights
with respect to S.R.L. on 8 October 2003, asserting that L.L. had
neglected her daughter and willfully left her in foster care for
more than 12 months without showing that reasonable progress under
the circumstances had been made in correcting the conditions that
led to S.R.L.'s removal.
(See footnote 2)
Following a hearing on 15 March 2004,
the trial court entered an order terminating L.L.'s parental rights
on 23 July 2004 based on both grounds included in the petition.
I
L.L. first contends that the trial court erred in refusing to
allow her trial counsel, Renee Wagoner, to withdraw and in failing
to substitute new appointed counsel. L.L. did not seek removal of
Ms. Wagoner, but rather Ms. Wagoner moved to withdraw three days
before the scheduled termination hearing. The trial court heardthat motion on 15 March 2004 before commencing the termination
hearing.
The court stated: "I'll be glad to let you put anything else
in the record that you'd like to put in." Ms. Wagoner indicated
that she was seeking to withdraw because L.L. was "verbally
abusive," her conversations with L.L. had "deteriorated and . . .
become unproductive due to the way in which [L.L.] expresses
herself," L.L. had declined to meet with her, and, as a result, Ms.
Wagoner had not been able to adequately discuss the case with her
client in order to prepare for the hearing. In response to the
court's inquiry, Ms. Wagoner stated that she had spent 20 to 25
hours representing L.L. The court then asked whether L.L. had
arranged for another attorney to represent her. L.L. and Ms.
Wagoner confirmed that she had not and that a second attorney, who
was representing L.L. on other matters, was not willing to assume
this representation. When the court asked L.L. if she wanted to
say anything, in light of her counsel's motion, L.L. answered, "No,
there's not." The court then prompted, "You don't get along with
this attorney?" L.L. replied, "I think she's a fine attorney. We
just have differences of opinions like sometimes lawyers and
clients do."
After learning that the petition was served on 15 October 2003
and the hearing had been set since 2 February 2004, the trial court
stated: "In view of the amount of time spent preparing the case for
trial and the unlikeliness of any other attorney being able to
communicate any better, the attorney that's been mentioned declinesto represent her further. It's a court-appointed matter. The
matter's been continued before." The court then denied the motion
to withdraw.
Our Court has recognized that a "'parent['s] right to counsel
in a proceeding to terminate parental rights is now guaranteed in
all cases by statute' and that '[a] parent's interest in the
accuracy and justice of the decision to terminate his or her
parental rights is a commanding one.'"
Little v. Little, 127 N.C.
App. 191, 192, 487 S.E.2d 823, 824 (1997) (alterations in original)
(quoting
In re Bishop, 92 N.C. App. 662, 664, 375 S.E.2d 676, 678
(1989)). Further, this Court has held that "the [statutory] right
to counsel . . . includes the right to effective assistance of
counsel."
Bishop, 92 N.C. App. at 665, 375 S.E.2d at 678. A
respondent must, however, show that "counsel's performance was
deficient and the deficiency was so serious as to deprive her of a
fair hearing."
Id., 375 S.E.2d at 679.
L.L. objects first that the trial court failed to conduct a
proper inquiry and did not provide her with an opportunity to
present any evidence. Our review of the transcript does not
support this contention. The court gave both L.L.'s counsel and
L.L. free rein _ limited only by the court's concern for the
attorney-client privilege _ to raise any concerns they had.
With respect to L.L.'s contention on appeal that the trial
court should have substituted new counsel, the record reveals that
L.L. was not seeking new counsel, but rather was satisfied with Ms.
Wagoner. While Ms. Wagoner was asking to be relieved of herresponsibilities because of difficulties in their interactions,
L.L. has failed to make any showing on appeal that Ms. Wagoner's
performance was deficient in any respect. Under these
circumstances, we cannot conclude that the trial court erred in
denying Ms. Wagoner's motion to withdraw.
II
L.L. next argues that the trial court should have appointed a
guardian ad litem to represent her in the termination proceedings.
At the time of the hearing, N.C. Gen. Stat. § 7B_602(b) (2003)
provided for appointment of a guardian ad litem as follows:
. . . a guardian ad litem shall be
appointed in accordance with the provisions of
G.S. 1A-1, Rule 17, to represent a parent in
the following cases:
(1)
Where it is alleged that the
juvenile is a dependent juvenile
within the meaning of G.S. 7B-101 in
that the parent is incapable as the
result of substance abuse, mental
retardation, mental illness, organic
brain syndrome, or any other similar
cause or condition of providing for
the proper care and supervision of
the juvenile; or
(2) Where the parent is under the age of
18 years.
(Emphasis added.)
(See footnote 3)
L.L. acknowledges that she does not fall within the literal
language of the statute since DSS' petition for termination ofL.L.'s parental rights did not allege dependency as grounds for
termination. Nevertheless, L.L. contends that dependency was
indirectly alleged because of the substance abuse and mental health
allegations recited in the petition. This argument was expressly
rejected by this Court in
In re H.W., 163 N.C. App. 438, 447, 594
S.E.2d 211, 216 (holding that a guardian ad litem need only be
appointed when the petition expressly alleges dependency),
disc.
review denied, 358 N.C. 543, 599 S.E.2d 46
and 603 S.E.2d 877
(2004). While L.L. points to
In re J.D., 164 N.C. App. 176, 605
S.E.2d 643,
disc. review denied, 358 N.C. 732, 601 S.E.2d 531
(2004), as support for her position, the petition in that case
actually did allege dependency.
Id. at 182, 605 S.E.2d at 646
("Subsection 7B-1111(a)(6) was clearly alleged in the petition . .
. ."). This Court held only that even if DSS chooses not to
proceed on that ground, a guardian must be appointed based on the
allegation.
Id. Therefore, based on
H.W. and the fact that the
petition in this case did not seek termination based on dependency
grounds, we overrule this assignment of error.
III
Finally, L.L. assigns error to the pertinent findings of fact,
arguing that they are unsupported by evidence, and challenges the
trial court's conclusion, based on those findings of fact, that
grounds existed to terminate her rights because she neglected her
daughter. The trial court, however, concluded both that L.L.
neglected S.R.L. and that she willfully left her in foster care for
more than 12 months without showing that reasonable progress underthe circumstances had been made in correcting the conditions that
led to S.R.L.'s removal. While L.L. assigned error to the latter
conclusion, she has limited the argument in her brief to the
neglect ground and has not addressed the second ground. Under
N.C.R. App. P. 28(b)(6), that contention is deemed abandoned:
"Assignments of error not set out in the appellant's brief,
or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned." (Emphasis added.)
L.L.'s failure to challenge the second ground for termination
on appeal renders any error with respect to the neglect ground
immaterial. As this Court explained in
In re C.L.C., __ N.C. App.
__, __, 615 S.E.2d 704, 709 (2005):
[B]ecause, in this case, the mother has not
assigned error to the trial court's other
grounds for termination _ neglect under N.C.
Gen.Stat. § 7B-1111(a)(1) and willful
abandonment under N.C. Gen.Stat. § 7B-
1111(a)(7) _ the trial court's error [as to
willfully leaving in foster care] is
immaterial. "The finding of any one of the
grounds is sufficient to order termination."
Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d
264, 267 (2003). Either of the two
unchallenged grounds for termination is
sufficient to support the trial court's order.
In any event, we observe further that the trial court's conclusion
that L.L. had failed to make reasonable progress under the
circumstances in correcting those conditions that led to the
removal of S.R.L. is fully supported by the court's findings of
fact, and those findings of fact are in turn supported by clear,
cogent, and convincing evidence. With respect to the evidence, L.L. argues in connection with
her discussion of neglect:
The testimony at the hearing was that
L.L. had never tested positive for illegal
drugs, she submitted to a psychiatric
evaluation, attended numerous counseling
sessions, exercised visitation with her
daughter and generally worked the case plan.
On the occasions that she was unable to
produce a urine screen, the testimony was that
she could not afford to have one and that she
had no transportation to the testing agency.
DSS, however, presented evidence that (1) L.L. tested positive for
cocaine at the birth of S.R.L.; (2) her abstinence from drugs and
alcohol could not be verified due to her behavior at the testing
facility; (3) L.L. had continued to use drugs and alcohol; (4) L.L.
failed to maintain stable employment; (5) she did not take full
advantage of opportunities for visitation, refused to have S.R.L.
accompany her while she was engaged in treatment, and failed to
attend court appearances related to her daughter; (6) L.L. failed
to make progress regarding domestic violence; and (7) L.L.
expressed hostility to her social worker and others while failing
to work with DSS in connection with her case plan. The court's
factual findings in accordance with this 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).
The court's findings are in turn sufficient to support its
conclusion that grounds for termination existed under N.C. Gen.
Stat. § 7B_1111(a)(2) (2003), which authorizes termination 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 thesatisfaction of the court that reasonable
progress under the circumstances has been made
in correcting those conditions which led to
the removal of the juvenile. Provided,
however, that no parental rights shall be
terminated for the sole reason that the
parents are unable to care for the juvenile on
account of their poverty.
"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.
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).
Moreover, a trial court is not required to consider as reasonable
progress efforts occurring only when parental rights are in
jeopardy. See id. 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 . . .."); Oghenekevebe, 123 N.C. App. at 437, 473 S.E.2d at 397
(holding that trial court could rely upon "respondent's failure to
show any progress in her therapy until her parental rights were in
jeopardy").
In this case, the trial court's findings regarding the lack of
stable employment, repeated incarceration and domestic violence,
lack of cooperation on her plan, and questionable progress on her
substance abuse permitted the court's conclusion that L.L. had
willfully failed to make reasonable progress. See, e.g., In re
Frasher, 147 N.C. App. 513, 515_16, 555 S.E.2d 379, 381 (2001)
(respondent mother's failure to obtain and maintain steady
employment was evidence of failure to make reasonable progress); In
re Tate, 67 N.C. App. 89, 94_95, 312 S.E.2d 535, 539 (1984)
(respondent mother's admitted "setbacks with her drinking" were
evidence of failure to make reasonable progress). While L.L.
claimed at the hearing to have taken steps towards her plan, the
trial judge was entitled to conclude that these modest steps were
too late.
With respect to the dispositional phase, L.L. argues that even
if grounds existed to terminate her parental rights, the trial
court abused its discretion in deciding that it was in the best
interests of the child to terminate those rights. 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, 318 (1993).
The trial court's findings indicate that L.L. consistently
struggles in areas of her life that have great potential to
directly impact her young daughter's welfare, including substance
abuse, domestic violence, anger management, and employment.
According to the trial court, L.L. has cooperated only sporadically
with DSS' efforts to work with her on solving these problems, and
at times, through her angry and abusive behavior, she has made it
impossible for such cooperation to take place. Further, the trial
court reasonably determined that L.L. has not demonstrated a
consistent commitment to S.R.L. and her fate. Under such
circumstances, we conclude that the trial court did not abuse its
discretion in terminating the respondent mother's parental rights
to S.R.L. See In re Howell, 161 N.C. App. 650, 657_58, 589 S.E.2d
157, 161 (2003) (holding that termination was in child's best
interests based on mother's unresolved substance abuse and anger
management problems and her resistance to DSS' efforts to help
her). Accordingly, we affirm the trial court's order terminating
L.L.'s parental rights.
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
Footnote: 1