Appeal by Respondent from order entered 18 March 2005 by Judge
John J. Carroll, III, in District Court, New Hanover County. Heard
in the Court of Appeals 28 March 2006.
Dean Hollandsworth for petitioner-appellee.
Regina Floyd-Davis, Guardian Ad Litem.
Lisa Skinner Lefler for respondent-appellant.
WYNN, Judge.
A trial court may consider relative placement as grounds for
why it would not be in the child's best interests to terminate a
parent's parental rights.
(See footnote 1)
In this case, Respondent argues that
the trial court failed to make findings of fact as to the
possibility of relative placement in lieu of termination of
parental rights. Because the transcript reveals that the trial
judge did, in fact, consider relative placement, we decline to hold
that the trial court abused its discretion by terminating
Respondent's parental rights.
On 3 December 2002, the New Hanover County Department of
Social Services (“DSS”) filed the initial Juvenile Petition,alleging neglect by lack of proper care and supervision or
discipline and dependency, lack of compliance with substance abuse
treatment and domestic violence. The minor child was placed with
her maternal step-grandmother at the time of the filing of the
Juvenile Petition, but was later placed in foster care on 16
December 2002.
The minor child was adjudicated neglected and dependent on 13
February 2003. The case was reviewed on 8 May 2003, and the plan
of reunification remained in effect, with a permanency planning
hearing to occur within six months. At the time of the permanency
planning hearing on 13 November 2003, Respondent was incarcerated
on felony charges for armed robbery and drug possession. During
the permanency planning hearing, the minor child's paternal aunt
requested to be considered as a possible relative placement and DSS
requested that the Columbus County Department of Social Services
conduct a home study. As it related to placement of the minor
child with her paternal aunt, the trial court found at the
permanency hearing that “[the minor child's] current placement[]
allow[s] [her] to remain close and in contact with [her sister].
Placement out of county for [the minor child] would eliminate the
level of contact the siblings have with each other. The foster
parent for [the minor child] has demonstrated a commitment to
adopting [her] should she become free for adoption.” At the
conclusion of the permanency planning hearing, the trial court
changed the permanent plan for the minor child from reunification
to adoption and ordered DSS to proceed with the termination ofparental rights. Subsequently, the minor child's mother signed a
relinquishment for adoption by the minor child's foster parent;
however, Respondent never agreed with the plan for adoption.
On 20 October 2004, DSS filed a petition for termination of
parental rights against Respondent. The trial court proffered four
statutory grounds for terminating Respondent's parental rights: (1)
Respondent “neglected the juvenile,” pursuant to section 7B-
1111(a)(1); (2) Respondent “willfully . . . left the juvenile in
foster care for more than twelve months[,]” pursuant to section 7B-
1111(a)(2); (3) Respondent failed “to establish paternity or
legitimize the child prior to the filing of the petition[,]”
pursuant to section 7B-1111(a)(5); and (4) Respondent “willfully
abandoned the juvenile[,]” pursuant to section 7B-1111(a)(7). See
N.C. Gen. Stat. §§ 7B-1111(a)(1),(2),(5), and (7) (2005). By order
filed 18 March 2005, the trial court terminated Respondent's
parental rights and ordered DSS to implement the plan for the
adoption of the minor child . Respondent appeals.
______________________________________
In his first argument on appeal, Respondent contends the trial
court erred in its failure to make findings of fact and conclusions
of law regarding the possible placement of the minor child with her
paternal aunt in the order terminating his parental rights.
Respondent's argument is without merit.
A termination of parental rights proceeding is conducted in
two stages: (1) the adjudication phase, which is governed by N.C.
Gen. Stat. § 7B-1109 (2005) and (2) the disposition phase, which isgoverned by N.C. Gen. Stat. § 7B-1110 (2004).
See In re Brim, 139
N.C. App. 733, 738, 535 S.E.2d 367, 370 (2000).
Section 7B-1109(e)
of the North Carolina Statutes provides that in the adjudication
phase, the trial court
shall take evidence, find the facts, and shall
adjudicate the existence or nonexistence of
any of the circumstances set forth in G.S. 7B-
1111 which authorize the termination of
parental rights of the respondent.
N.C. Gen. Stat. . 7B-1109(e). The disposition phase, which is
governed by section 7B-1110 of the North Carolina General Statutes,
provides that upon a trial court's finding
that any one or more of the conditions
authorizing a termination of the parental
rights of a parent exist, the court shall
issue an order terminating the parental rights
of such parent . . . 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. The trial court has discretion, if it
finds by clear, cogent, and convincing evidence that at least one
of the statutory grounds exists, to terminate parental rights upon
a finding that it would be in the best interests of the child.
In
re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001).
The trial court's decision to terminate parental rights is reviewed
under an abuse of discretion standard.
Brim, 139 N.C. App. at 744,
535 S.E.2d at 373.
In this case, Respondent argues that the trial court erred
because there were no findings of fact as to the possibility or
appropriate nature of relative placement in lieu of termination of
parental rights. During the adjudication phase of a termination ofparental rights proceeding, “the trial court does not consider
whether there is a relative who can take custody of the minor
child, but focuses on whether there is evidence to support
termination on the grounds alleged in the petition.”
In re J.A.A.,
__ N.C. App. at __, 623 S.E.2d 45 at 51.
Notwithstanding, the
trial court may consider relative placement during the
dispositional phase of a termination proceeding as grounds for why
it would not be in the child's best interests to terminate a
parent's parental rights if a fit relative comes forward and
declares their desire to have custody of the minor child.
Id.
The trial court in this case determined that it was in the
minor child's best interests to terminate Respondent's parental
rights and to proceed with the plan of adoption for the minor
child. Although the trial court's order terminating Respondent's
parental rights does not contain any specific findings that reject
the minor child's placement with her paternal aunt, “the trial
court is not required to make findings of fact on all the evidence
presented, nor state every option it considered.”
Id. (citing
Fortis Corp. v. Northeast Forest Products, 68 N.C. App. 752, 753,
315 S.E.2d 537, 538 (1984)).
To the contrary, the trial court must
only “make brief, pertinent and definite findings and conclusions
about the matters in issue.”
Id. Moreover, although the written
order terminating Respondent's parental rights does not
specifically outline the trial court's consideration of possible
placement of the minor child with her paternal aunt, it does not
mean that the trial court did not consider this option.
See id. Indeed, the trial transcript reveals that the trial judge did,
in fact, consider placement of the minor child with her paternal
aunt. The trial judge stated:
It was brought out during this hearing that
the aunt -- and she is present in court and
made a comment not under oath, but it appears
that the aunt has had minimal contact with the
child, supervised visit, maybe one other visit
within the last two plus years for the child,
and has _- as has been brought out in the
other orders and was brought out today by the
Department, the child currently is in a
nurturing environment and is the only child
with the foster parents and is participating
numerous activities and is doing well.
Thus, it is apparent from the trial transcript that the trial judge
did consider granting the minor child's paternal aunt custody.
Based on the trial judge's statements, findings of fact and
conclusions of law, we cannot say that the trial court failed to
consider relative placement when making its best interest
determination. As the trial court made the appropriate findings of
fact and conclusions of law on the issues related to the
termination of Respondent's parental rights, Respondent's
assignment of error is, therefore, rejected.
In his next argument on appeal, Respondent contends the trial
court erred in concluding that grounds existed to terminate his
parental rights. We disagree.
We first note that although the trial court concluded that
grounds existed pursuant to sections 7B-1111(a)(1), (2), (5) and
(7) of the North Carolina General Statutes to terminate
Respondent's parental rights, we find it dispositive on appeal that
the evidence is sufficient to support termination of Respondent'sparental rights under section 7B-1111(a)(2).
See In re Pierce, 67
N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one
statutory ground is sufficient to support the termination of
parental rights)
.
Under section 7B-1111(a)(2) of the North Carolina General
Statutes, a court may terminate parental rights on the ground
“[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. § 7B-
1111(a)(2). The twelve-month period for the evaluation of
reasonable progress under section 7B-1111(a)(2) is not limited to
the twelve months immediately preceding the filing of the petition.
In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81, 86 (2002). The
willful leaving of the child is “something less than willful
abandonment” and “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). A finding of this ground may be made when the
parent has made some attempt to regain custody of the child but has
failed to show reasonable and positive progress.
In re Nolen, 117
N.C. App. 693, 699-700, 453 S.E.2d 220, 224-25 (1995).
The trial court made the following finding of fact in support
of its conclusion to terminate Respondent's parental rights under
section 7B-1111(a)(2):
6. The Respondent-Father has willfully, and
not due solely to poverty, left the child infoster care or placement outside of the home
for more than twelve 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 child's removal. At the date of this
hearing, the child has been out of the home
for approximately twenty-five months. At the
time of the adjudication of this matter, the
Respondent-Father was ordered to undergo a
substance abuse assessment and follow any
recommendations including random drug screens.
He failed to return for a follow up
appointment after his initial assessment; he
refused all but one of the drug screens and
only became involved in a treatment program
while incarcerated, by his report. He was
ordered to participate in and successfully
complete an anger management class, which he
failed to do. He was ordered to participate
in supervised visitation after providing three
negative, consecutive random drug screens,
which he failed to do. He was ordered to
resolve all criminal charges and succeeded in
doing that by pleading guilty to four charges
of armed robbery in November of 2004 in a plea
agreement dismissing several charges and
receiving an active sentence of approximately
twelve years. He was also ordered to sign
releases of information to any treatment
programs, however, having participated in none
while not incarcerated; he had no opportunity
to comply with this order. By his non-
compliance with the majority of the items
ordered by the Court and his lack of
participation in department planning meetings
and other case plan activities, the child
could not have been placed with him during the
time of this matter even in the absence of
incarceration. As such, the requisite time
period of twelve months without sufficient
progress to restore custody has been exceeded.
The record reveals that at the time of the adjudication, the
trial court ordered Respondent to undergo a substance abuse
assessment and follow any recommendations, including random drug
screening.
A social worker testified at the termination hearing
that Respondent failed to return for a follow up appointment afterhis initial assessment and refused all of the drug screenings, with
the exception of one.
Moreover, Respondent only became involved in
a treatment program after his incarceration.
The social worker
further testified that Respondent failed to, (1) participate in and
successfully complete an anger management class; (2) obtain and
maintain safe, stable housing; and (3) participate in supervised
visitation after providing three negative, consecutive random drug
screens.
Respondent did not present any evidence to contradict the
social worker's testimony.
Moreover, at the time of the filing of the petition to
terminate Respondent's parental rights on 20 October 2004,
Respondent had not seen the minor child since 3 January 2003, due
to non-compliance with court orders and his incarceration. As of
the date of the termination hearing, the minor child had been out
of the home for twenty-one months, and had been in the same foster
home for nearly two years.
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 child in foster care for twelve months without
reasonable progress. We further hold that these findings support
the trial court's conclusion that Respondent was subject to having
his parental rights terminated pursuant to section 7B-1111(a)(2) of
the North Carolina General Statutes. This Court has held “that
extremely limited progress is not reasonable progress. This
standard operates as a safeguard for children. If parents were notrequired 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 Nolen, 117 N.C. App. at 700,
453 S.E.2d at 225 (stating “[i]mplicit 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.”).
Because we find there were grounds to terminate Respondent's
parental rights under section 7B-1111(a)(2) of the North Carolina
General Statutes, we need not address Respondent's remaining
assignments of error relating to the trial court's order
terminating his parental rights.
See Owenby v. Young, 357 N.C.
142, 145, 579 S.E.2d 264, 267 (2003)
(“[t]he finding of any one of
the grounds is sufficient to order termination.”).
Respondent next contends the trial court erred in its failure
to appoint a guardian
ad litem. Respondent's argument is without
merit.
Section 7B-1101(1) of the North Carolina General Statutes
requires the trial court to appoint a guardian
ad litem for the
respondent where “it is alleged that [the respondent's] rights
should be terminated pursuant to G.S. 7B-1111[(a)](6), and the
incapability to provide proper care and supervision pursuant to
that provision is the result of substance abuse, mental
retardation, mental illness, organic brain syndrome, or anothersimilar cause or condition.” N.C. Gen. Stat. . 7B-1101(1) (2004);
see also In re J.D., 164 N.C. App. 176, 180, 605 S.E.2d 643, 645
(noting that the duty of appointment arises when the allegation of
incapability under N.C. Gen. Stat. . 7B-1111(a)(6) is alleged in
the petition for termination),
disc. review denied, 358 N.C. 732,
601 S.E.2d 531 (2004). Where the petition to terminate parental
rights neither alleges incapability due to a debilitating condition
nor cites section 7B-1111(a)(6) and “none of the allegations in the
[petition] tend[] to show [the] respondent is incapable of
providing care for the children[,]” the trial court does not err by
failing to appoint a guardian
ad litem for the respondent.
In re
O.C., 171 N.C. App. 457, 462, 615 S.E.2d 391, 394 (2005);
see also
In re B.M., 168 N.C. App. 350, 357, 607 S.E.2d 698, 703 (2005)
(stating “[i]t is the use of the term 'incapable' which triggers
the requirement of N.C. Gen. Stat. § 7B-1101 for the appointment of
a guardian
ad litem.”).
In the case
sub judice, the petition for termination of
Respondent's parental rights identified four statutory grounds for
terminating Respondent's parental rights: (1) Respondent “neglected
the juvenile,” pursuant to section 7B-1111(a)(1); (2) Respondent
“willfully . . . left the child in foster care . . . for more than
twelve months[,]” pursuant to section 7B-1111(a)(2); Respondent
failed to establish paternity or legitimize the child prior to the
filing of the petition, pursuant to section 7B-1111(a)(5); and
Respondent “willfully abandoned the juvenile[,]” pursuant to
section 7B-1111(a)(7).
See N.C. Gen. Stat. §§7B-1111(a)(1),(2),(5), and (7).
None of the allegations in the
petition reflect that Respondent was incapable of caring for the
minor child, nor does the petition allege incapability due to a
debilitating condition or cite to section 7B-1111(a)(6) as the
basis for terminating Respondent's parental rights. Although the
petition does contain references to Respondent's drug abuse, the
trial court is not required to appoint a guardian
ad litem “in
every case where substance abuse or some other cognitive limitation
is alleged.”
In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211,
216 (applying N.C. Gen. Stat. . 7B-602(b)(1)),
disc. review denied,
358 N.C. 543, 603 S.E.2d 877 (2004). As there were no allegations
of Respondent's incapability to parent the minor child properly,
the trial court was not required to conduct a hearing on the issue
of appointing a guardian
ad litem for Respondent. Accordingly,
Respondent's assignment of error is rejected.
In his final argument on appeal, Respondent contends that
because of the trial court's failure to file its order terminating
his parental rights within the thirty day periods established in
sections 7B-1109(e) and 7B-1110(a) of the North Carolina General
Statutes, we should reverse that order and remand to the trial
court for a new proceeding. We disagree.
Section 7B-1109(e) of the North Carolina General Statutes
provides that the “adjudicatory order shall be reduced to writing,
signed, and entered no later than 30 days following the completion
of the termination of parental rights hearing.” N.C. Gen. Stat. .
7B-1109(e). Section 7B-1110(a) provides: Should the court determine that any one or
more of the conditions authorizing a
termination of the parental rights of a parent
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. Any order shall be reduced to
writing, signed, and entered no later than 30
days following the completion of the
termination of parental rights hearing.
N.C. Gen. Stat. § 7B-1110(a).
In order for Respondent to obtain a new trial based on the
trial court's failure to file the order terminating his parental
rights in a timely fashion, he must show prejudice.
In re P.L.P.,
__ N.C. App. __, __, 618 S.E.2d 241, 245 (2005);
In re J.L.K., 165
N.C. App. 311, 316, 598 S.E.2d 387, 391,
disc. review denied, 359
N.C. 68, 604 S.E.2d 314 (2004). This Court has been more likely to
find prejudice as the length of the delay increases.
In re T.L.T.,
170 N.C. App. 430, 432, 612 S.E.2d 436, 438 (2005)
; In re L.E.B.,
169 N.C. App. 375, 379, 610 S.E.2d 424, 426 (2005)
.
Notwithstanding, this Court has declined to adopt a
per se
standard, even when long delays are involved.
In re P.L.P., __
N.C. App. at __, 618 S.E.2d at 245.
Here, the trial court filed the order terminating Respondent's
parental rights two months after the termination hearing. However,
Respondent fails to articulate how the trial court's delay in
entering the order terminating his parental rights prejudiced him.
We, therefore, hold that Respondent has not met his burden ofproving prejudice. Thus, Respondent's assignment of error is
rejected.
Affirmed.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1