An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 March 2006
IN THE MATTER OF
S.L.G. Halifax County
T.R.G. Nos. 03 J 10, 11
Appeal by respondents from judgments entered 15 July 2004 by
Judge H. Paul McCoy, Jr., in Halifax County District Court. Heard
in the Court of Appeals 7 December 2005.
Jeffery L. Jenkins for Halifax County Department of Social
Services petitioner appellee.
Michael J. Reece for respondent-mother appellant.
Richard E. Jester for respondent-father appellant.
The present appeal arises from district court orders
terminating the parental rights of respondent-mother as to the
minor children S.L.G. and T.R.G. and terminating the parental
rights of respondent-father as to the minor child T.R.G.
Respondents appeal, and we affirm.
S.L.G. is the biological child of respondent-mother.
Respondent-father's paternity of S.L.G. has not been conclusively
established. T.R.G. is the biological child of both respondents.
S.L.G. was born in March of 2001. At this time, respondent-
mother was receiving case management services from the Halifax
County Department of Social Services (DSS), which includedreferrals for respondent-mother to receive inpatient and outpatient
substance abuse treatment. However, respondent-mother continued to
abuse cocaine and marijuana. T.R.G. was born seven weeks premature
in January of 2003. Both T.R.G. and respondent-mother tested
positive for cocaine at the time of T.R.G.'s birth.
Respondents' relationship has been violent at times, and in
2003, they were living apart. At some point, respondent-mother and
S.L.G. lived with the child's maternal grandparents, who were not
able to care for the child because of their age and medical
conditions, and respondent-father lived in a house with no
electricity. In early 2003, each respondent was on criminal
probation. Both juveniles were placed in the nonsecure custody of
DSS in February of 2003 based on DSS's allegations that the
children were neglected and dependent.
During a 10 February 2003 child planning conference,
respondent-mother agreed to enter a residential substance abuse
treatment program, and respondent-father agreed to undergo an
assessment to determine the need for substance abuse treatment.
Respondent-mother began an impatient substance abuse treatment
program and, thereafter, an intensive outpatient program. The
terms of her criminal probation required drug and alcohol testing.
Drug screens conducted pursuant to the terms of respondent-father's
criminal probation revealed the presence of cocaine in his system;
however, respondent-father consistently denied using illegal drugs.
Following a hearing held on 27 March 2003, a district court
judge entered orders adjudging S.L.G. and T.R.G. to be neglected
and dependent juveniles. The court also entered dispositional
orders which required the children to remain in the custody of DSS
and in the foster care which DSS had arranged for them, but
permitted supervised visits between the children and respondents
and set a goal of reunification between the children and
respondents. Both respondents were directed to complete substance
abuse treatment, submit to random drug testing, attend parenting
and domestic violence classes, secure and maintain stable housing,
and cooperate with child support establishment and enforcement
orders. The disposition orders also provided for the suspension of
visitation privileges for either respondent who tested positive for
drugs or alcohol.
During the ensuing ninety days, both respondents completed
parenting classes and made progress in their respective housing
situations. Respondent-father completed an outpatient substance
abuse treatment program; however, respondent-mother failed to
complete her outpatient program. Both respondents tested positive
for cocaine in May of 2003, and their visitation with the juveniles
After a 26 June 2003 review hearing, the court determined that
the plan for the juveniles would remain reunification with
respondents, but the court ordered that no visitation take place
between the children and respondents until each respondent tested
negative for illegal drugs in two consecutive drug tests. Thecourt also directed respondents to continue with substance abuse
treatment, to attend Alcoholics Anonymous (AA) and Narcotics
Anonymous (NA) meetings three times per week, to submit proof of
AA and NA attendance, and to continue to submit to random drug
The evidence at a 24 November 2003 review hearing tended to
show that respondent-mother tested positive for cocaine in
September of 2003 and that respondent-father had not complied with
the order to submit to drug tests, even though a DSS social worker
made repeated requests that he do so. Accordingly, neither parent
visited with the children. Further, neither parent had submitted
proof of AA or NA attendance. Following the 24 November 2003
hearing, the court ordered that the juveniles remain in the custody
of DSS, suspended visitation pending further review, and set a date
for a permanency planning hearing to determine a new permanent plan
for the juveniles.
The evidence at an 8 January 2004 permanency planning hearing
tended to show that respondent-mother had re-entered a drug
treatment program, but left without completing it. Respondent-
mother provided evidence that she had been attending AA and NA
since December of 2003. Respondent-father testified that he had
been attending AA and NA meetings during December, but he did not
provide any documentation in support of his testimony. As of the
8 January 2004 hearing, the children had been in foster care for
eleven months and had not visited with respondents for eight
months. Following this hearing, the court directed DSS todetermine whether the children could be placed with respondent-
father's mother, but also permitted DSS the discretion to file a
motion for termination of parental rights.
DSS contacted respondent-father's mother and determined that
she was unwilling and unable to provide a permanent home for the
children. Therefore, on 11 February 2004, DSS filed motions to
terminate the respondents' parental rights as to S.L.G. and T.R.G.
At an 8 April 2004 permanency planning hearing, the children's
maternal aunt, Barbara Dominguez appeared and testified that she
was willing to provide a home for the children. The court
determined that Dominguez had medical problems which prevented her
from caring for the juveniles. The court changed the plan for the
juveniles to adoption.
Following a hearing on 10 June 2004, the trial court found
that the following grounds existed to terminate respondents'
parental rights: (1) the children were neglected, and there was a
reasonable probability that the neglect would continue; (2) the
children had been left in foster care for more than twelve months,
and the respondents had failed to make reasonable progress towards
correcting the conditions which led to the children's removal; and
(3) the children had been in the custody of DSS for at least one
year without respondents paying a reasonable portion of the cost of
child care despite an ability to do so. The court further
determined that a termination of parental rights would serve the
best interests of each child. Accordingly, the court terminated
the parental rights of respondent-mother as to both S.L.G. andT.R.G. and terminated the parental rights of respondent-father as
to T.R.G.; the motion to terminate respondent-father's parental
rights as to S.L.G. was dismissed because there had been no
determination that he was the father of S.L.G.
Respondents now appeal.
On appeal, respondent-mother first contends that the trial
court erred by determining that grounds existed to terminate her
parental rights as to both children. This contention lacks merit.
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 findings of fact which are
appropriately grounded in the record. 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) (2005), 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 (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).
In the instant case, the trial court's termination orders
indicate that respondent-mother's substance abuse problem played a
significant role in the removal of S.L.G. and T.R.G. from her
custody, and the orders are replete with allusions to respondent-
mother's failure to address this problem during the children's
sixteen-month stay in foster care. On these facts, we discern no
error in the trial court's conclusion that respondent-mother left
her children in foster care for more than twelve months without
showing to the satisfaction of the court that reasonable progress
had been made to correct the conditions which led to the removal of
Our holding with respect to this ground for termination makes
it unnecessary for us to consider respondent-mother's argumentsconcerning the other grounds upon which her parental rights were
terminated. See Swisher, 74 N.C. App. at 240-41, 328 S.E.2d at
Respondent-mother also contends that the trial court erred by
determining that it was in the best interests of the children that
her parental rights be terminated. This contention also lacks
If a 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), amended by 2005
N.C. Session Laws ch. 398, § 7. 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 standard. McMillon, 143 N.C.
App. at 408, 546 S.E.2d at 174.
Given the facts and circumstances of the instant case, we
discern no abuse of discretion in the trial court's determination
that the best interest of S.L.G. and T.R.G. would be served by
terminating respondent-mother's parental rights.
The foregoing analysis makes it unnecessary to address
respondent-mother's remaining arguments. The trial court'stermination orders are affirmed with respect to respondent-mother's
On appeal, respondent-father first argues that the trial court
erred by considering prior orders entered in the instant case. We
Respondent-father's argument is subdivided into three
contentions concerning the previously entered orders. His first
qualm with the trial court's consideration of these orders is that
they were entered at different times, in different hearings, some
with different standards of proof. This Court has held that
determinations made by a court in prior orders, such as findings of
neglect, are not determinative of the issues before the court at a
subsequent termination hearing. See In re Byrd, 72 N.C. App. 277,
280, 324 S.E.2d 273, 276 (1985). However, such prior determinations
may be considered by the court at the termination hearing as
evidence of whether there are grounds to terminate parental rights.
Id. Regardless of the burden of proof required at any other stage
of the proceedings, adjudicatory findings made in an order
terminating parental rights must be based on clear, cogent, and
convincing evidence. N.C. Gen. Stat. § 7B-1109(f) (2005).
The order at issue in the instant case reflects that the trial
court appropriately considered its prior orders as well as the
evidence presented at the termination hearing to determine whether
respondent-father's parental rights as to T.R.G. should beterminated. Further, the order clearly reflects that the trial
court correctly applied the clear, cogent and convincing evidence
standard in making its adjudicatory findings.
Respondent-father also challenges consideration of the
previous orders based on his assertion that the reports referenced
in the prior orders contain considerable hearsay. . . . One social
worker testified . . . to confirm the reports[, such that h]earsay
was stacked upon hearsay. The record is bereft of any indication
that respondent-father raised hearsay concerns at the termination
hearing; therefore, this particular argument has been waived. See
N.C. R. App. P. 10(b)(1) (2006) (In order to preserve a question
for appellate review, a party must have presented to the trial
court a timely request, objection or motion, stating the specific
grounds for the ruling the party desired the court to make . . . .
It is also necessary for the complaining party to obtain a ruling
. . . .).
Finally, respondent-father insists that consideration of the
prior orders constituted a violation of his federal constitutional
right of confrontation as enunciated in Crawford v. Washington, 541
U.S. 36, 158 L. Ed. 2d 177 (2004). However, this Court has held
that Crawford is inapplicable to proceedings to terminate parental
rights because such proceedings are civil, rather than criminal, in
nature. In re D.R., __ N.C. App. __, __, 616 S.E.2d 300, 303
(2005). Accordingly, we reject respondent-father's argument that the
trial court improperly considered its previously entered orders.
The corresponding assignment of error is overruled.
Respondent-father next contends that the order terminating his
parental rights as to T.R.G. must be reversed because the trial
court failed to make independent findings of fact. This contention
In cases involving the possible termination of parental
rights, a trial court is under a duty to not simply 'recite
allegations[;]' it must instead [go] through 'processes of
logical reasoning from the evidentiary facts' [and] find the
ultimate facts essential to support the conclusions of law. In re
Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003)
(citations omitted). A trial court's findings will be considered
sufficient in this regard if they permit an appellate court 'to
determine that the judgment is adequately supported by competent
evidence.' In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599,
602 (2002) (citation omitted).
Respondent-father notes that certain findings in the
termination order are practically identical to certain allegations
in DSS's motion to terminate his parental rights as to T.R.G. and
that the court's findings set forth some of the procedural history
of the case. These observations are immaterial to a determination
as to whether the trial court made adequate factual determinations.
The court was neither precluded from finding that the allegationsin DSS's motion were correct, nor forbidden to make findings
substantially similar to those allegations; rather, the court was
precluded from terminating respondent-father's parental rights if
it did no more than indicate that DSS had alleged certain facts.
See, e.g., Harton, 156 N.C. App. at 660, 577 S.E.2d at 337;
Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602. Likewise, the
court was not precluded from setting forth the procedural history
of the case so long as it made findings as to the ultimate facts
arising in the case pending before it.
Our review indicates that the trial court made findings which
are sufficient to permit this Court to determine whether the
challenged termination order is supported by evidence in the
record. The corresponding assignment of error is overruled.
In his final argument on appeal, respondent-father contends
that the trial court erred by determining that grounds existed to
terminate his parental rights as to T.R.G., and erred by
determining that a termination of his parental rights was in
T.R.G.'s best interest. This contention also lacks merit.
We reiterate that the trial court's termination order must be
affirmed if its findings as to any one of the statutory grounds for
termination is supported by clear, cogent, and convincing evidence
and if those findings support a conclusion that parental rights
should be terminated. Ante, slip op. at 6-7. Likewise, we again
observe that the trial court's decision to terminate parental
rights, if based upon a finding of one or more of the statutorygrounds supported by evidence in the record, is reviewed on an
abuse of discretion standard. Ante, slip op. at 8.
In the instant case, the trial court concluded that, pursuant
to section 7B-1111(a)(2), a ground for termination of parental
rights existed because respondent-father had willfully left T.R.G.
in placement outside of the home for more than twelve months
without making reasonable progress towards correcting the
circumstances which led to the removal of the juvenile. The
court's termination order indicates that, like respondent-mother,
respondent-father had a substance abuse problem which contributed
to the removal of T.R.G. and that respondent-father failed to
sufficiently address this problem during the child's sixteen-month
stay in foster care. On these facts, we discern no error in the
trial court's conclusion that respondent-father had left T.R.G. in
foster care for more than twelve months without showing to the
satisfaction of the court that reasonable progress had been made to
correct the conditions which led to the removal of the child, and
we discern no abuse of discretion in the trial court's decision to
terminate respondent-father's parental rights as to T.R.G.
The corresponding assignments of error are overruled.
The foregoing analysis makes it unnecessary to address
respondent-father's remaining arguments on appeal. The trial
court's order terminating respondent-father's parental rights as to
T.R.G. is affirmed.
The trial court's order terminating respondent-mother's
parental rights as to S.L.G. and T.R.G. is affirmed, and the order
terminating respondent-father's parental rights as to T.R.G. is
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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