An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 18 April 2006
J.D.R. McDowell County
C.R.R. Nos. 04 J 109, 04 J 110
Appeal by respondent mother from order entered 19 April 2005
by Judge Robert S. Cilley in McDowell County District Court. Heard
in the Court of Appeals 29 March 2006.
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for
petitioner-appellee McDowell County Department of Social
James C. Callahan, for petitioner-appellee Guardian ad Litem.
Carol Ann Bauer, for respondent-appellant.
A.R. (respondent) appeals from order entered terminating her
parental rights to her minor children, J.D.R. and C.R.R. We
Respondent is the mother of the minor children J.D.R. and
C.R.R. (collectively, the children). McDowell County Department
of Social Services (DSS) worked intensely with the family
beginning in March 2002. Respondent contacted DSS and requested
the children be placed with DSS because she could not properly care
for them. The children were placed in DSS custody pursuant to a
non-secure custody order on 1 August 2002. DSS's petition alleged
dependency and stated respondent did not have a home or employment,and that respondent had been taken to the emergency room earlier in
the week due to a panic attack caused from the stress of trying to
care for the children. The petition also alleged respondent and
her husband, the father of the children, had experienced episodes
of domestic violence and that both parents had been incarcerated at
times. Respondent consented to the adjudication of dependency on
6 January 2003. Prior to DSS's involvement with the family,
respondent and her husband had left J.D.R. with friends for a
period of at least eight months.
After being placed in DSS's custody, the children were
evaluated by a pediatric opthamologist and diagnosed with occulo-
cutaneous albinism, a condition of the eyes that requires special
medical attention. C.R.R. was found to be visually disabled with
a corrected vision of 20/180. J.D.R. was required to wear UV-
absorbing glasses full time and was found to have a mild
developmental delay requiring special attention. A pediatrician
also performed an examination on the children and both were found
to have low muscle tone. The pediatrician recommended a healthy
diet for both children with physical therapy exercises at home.
Subsequent to the children being placed in DSS's custody, DSS
worked to reunify the family. Respondent and her husband were
requested to attend parenting classes and marriage counseling,
obtain and maintain employment, obtain and maintain suitable
housing, pay child support, and attend visitation. Respondent was
requested to obtain a driver's license and means of transportation
for the children. Respondent and her husband were separated in February and
March 2003. Prior to this separation, respondent obtained
employment at Mountainview Care Center and worked a few days. She
left to go to Florida with her mother for a few weeks and learned
her employment had been terminated upon her return. Respondent and
her husband reconciled and moved into a mobile home in April 2003.
DSS assisted respondent in obtaining employment at Lake James Rest
Home. She worked one day and quit. Respondent and her husband
obtained employment at the Baxter Travenol Cafeteria in April 2003.
Respondent was injured in August 2003 and lost her job. She
obtained employment at Autumn Care Nursing Home, where she was
employed until September 2004. Respondent and her husband
separated again on 5 January 2004. At the time of the termination
of parental rights proceedings, respondent and her husband remained
The first permanency planning review hearing was held on 10
July 2003. The court determined the permanency plan was for DSS to
continue efforts to reunify the family. A second permanency
planning review hearing was held on 5 February 2004. The father of
the children consented to the court ceasing reunification efforts
Respondent neither possessed a driver's license nor the
ability to transport the children to their medical appointments.
A DSS social worker met with respondent on at least three occasions
to help her establish a budget. Respondent spent in excess of her
budget, was frequently in arrears on her rent, lost her housing,and could not obtain transportation. The court continued
reunification efforts with respondent for a period of three months
to assess whether she would be able to parent the children. The
court ordered respondent to: (1) maintain gainful employment
sufficient to support suitable and appropriate housing separate
from the children's father; (2) maintain visitation with the
children; (3) comply with DSS's recommendations regarding further
classes or treatment; and (4) comply with the recommendations of
the psychological evaluation.
A third permanency planning review hearing was held on 13 May
2004. The court found that the only recommendation respondent had
completed from the previous court order was purchasing telephone
service. Respondent did not follow the budget DSS helped her to
establish. Respondent ran out of oil in February and April 2004.
DSS assisted her to obtain funds from a church to pay her oil bill.
One visit between respondent and the children was postponed because
respondent's residence was too cold for the children to visit.
In April 2004, respondent told DSS that she had prepared a
bedroom for the children. DSS found the room to be unsuitable for
the children. The mattress and box springs were leaning against a
window and the room had a door that led to an outside porch with
steps that went under the floor of the house. In addition to the
previous orders, the trial court ordered respondent to: (1) not
have contact with the children's father; (2) maintain
transportation; (3) maintain a clean and suitable residence for the
children; (4) demonstrate how to budget finances; and (5) attend toall of the children's needs during visitation. Respondent's
visitation was increased to four hours a day twice a week. The
visitation was contingent upon her picking up the children from
Head Start at 9:00 a.m. and returning them at 1:00 p.m.
A fourth permanency planning review hearing was held on 12
July 2004. DSS was unable to expand respondent's visitation
because she had failed to comply with the conditions of the
previous court order requiring her to provide transportation for
the children. A fifth permanency planning review hearing was held
on 19 August 2004. The order found respondent had set up a
suitable bedroom for the children, had obtained a car, and was
trying to gain experience as a driver. The order provided
structured unsupervised visitation so long as respondent was able
to provide transportation for the children. The order required
respondent to: (1) maintain a suitable residence for the children;
(2) maintain a vehicle and insurance; (3) demonstrate an ability to
maintain her driver's license and safely transport the children;
(4) demonstrate an ability to meet the children's medical,
emotional, and physical needs; and (5) maintain gainful employment
sufficient to support the children and demonstrate an ability to
budget her finances.
The final permanency planning review hearing was held on 23
September 2004. The order found respondent had lost her job and
lost her residence due to non-payment of rent. She had not made
her first car payment and was at risk of losing her transportation.
Respondent also violated a previous court order directing her notto have contact with the children's father. The order established
a permanent plan of adoption and directed DSS to file a petition to
terminate respondent's parental rights.
Respondent was unable to pay rent and moved in with her
mother. Respondent's mother did not allow the children to be
placed in her home. At the time of the termination of parental
rights hearing, respondent was training for a job at a mortgage
company. She had obtained a learner's permit that required another
licensed driver to be present while she operated a vehicle.
Respondent testified that she bought a computer from her
mother sometime before September 2004 for $250.00. In the fourth
permanency planning review order, the trial court found, Despite
having the need for purchasing an automobile, the respondent mother
took on extra monthly payments for internet service and Direct TV
The trial court terminated respondent's parental rights on 17
April 2005. At the time of the termination of parental rights
hearing, J.D.R. was four years old and C.R.R. was almost three
years old. The children had continuously remained in foster care
since 1 August 2002. DSS witnesses testified respondent had
actively parented J.D.R. for fourteen out of the fifty-four months
of her life. Respondent had actively parented C.R.R. for two-and-
one-half out of the thirty-five months of her life.
The trial court concluded respondent willfully left the
children in foster care for more than twelve months without showing
to the satisfaction of the court that reasonable progress under thecircumstances had been made in correcting those conditions which
led to the removal of the children pursuant to N.C. Gen. Stat. §
7B-1111(a)(2). Respondent appeals.
Respondent argues: (1) findings of fact numbers 26 and 27 are
not supported by clear, cogent, and convincing evidence; (2) the
trial court erred in concluding grounds existed under N.C. Gen.
Stat. § 7B-1111(a)(2) to terminate her parental rights; and (3) the
trial court abused its discretion in terminating her parental
III. Standard of Review
A proceeding to terminate parental rights is a two-step
process involving an adjudication stage and a dispositional stage.
In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908
(2001). A different standard of review applies to each stage. Id.
At the adjudication stage, the party petitioning for the
termination must show by clear, cogent, and convincing evidence
that grounds authorizing the termination of parental rights exist.
In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). The
grounds for termination of parental rights are listed in N.C. Gen.
Stat. § 7B-1111(a) (2005). The petitioner must prove at least one
enumerated ground in the statute exists. Id. Our standard of
review is whether the trial court's findings of fact are supported
by clear, cogent, and convincing evidence, and whether those
findings of fact support its conclusions of law. In re Huff, 140N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. rev. denied,
353 N.C. 374, 547 S.E.2d 9 (2001).
If the trial court determines the petitioner has shown at
least one ground for termination of parental rights exists, the
trial court moves to the dispositional stage and determines whether
it is in the best interests of the child to terminate parental
rights. In re Young, 346 N.C. at 247, 485 S.E.2d at 615. We
review the trial court's best interests determination under an
abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349,
352, 555 S.E.2d 659, 662 (2001).
IV. Termination of Respondent's Parental Rights
A. Findings of Fact
Respondent argues findings of fact numbers 26 and 27 are not
supported by clear, cogent, and convincing evidence. We disagree.
The trial court found:
26. Since the permanency planning review
hearing held September 23, 2004, the
respondent mother obtained a job but lost the
job in December, 2004, due to absences from
work. The respondent mother was unable to pay
her rent at Triple J Mobile Home Park and left
her residence and moved into the residence of
her mother in December, 2004. The respondent
mother did not go back to her former residence
to pick up her personal property, and after
the property was stored by the landlord for a
few months, he disposed of them. The
respondent mother is not able to have the
children at the residence of her mother, as
the respondent's mother will not allow the
children to be placed in her home. The
respondent mother is currently in training for
a job at a mortgage company, but has not been
receiving any pay during her training period,
except for one payment of $100.00 a few days
ago. It is uncertain whether the respondent
will be able to receive income through thispotential employment. Although the social
worker had understood from the respondent
mother that she had her driver's license, the
respondent mother has only had a learner's
permit, which requires another licensed driver
to be with her while she is operating a car.
The respondent mother lost her transportation
as she did not make the payments on her
vehicle, and still has no transportation.
Although the respondent mother was not
properly licensed, she drove the children on
two occasions when she had unsupervised visits
prior to the last permanency planning hearing.
27. The respondent mother testified at the
hearing that she currently resides in the
mobile home residence of her mother, where she
has lived since December, 2004. The
respondent mother admitted that she abandoned
all of her personal property, including her
pictures of the children and other items of
the children's when she left her former
residence and did not pay the $540.00 storage
fee for her personal property. The respondent
mother admitted that during most of the time
that would constitute twelve months prior to
the filing of the termination of parental
rights proceeding in this cause, she was
employed and earning a sufficient income to
meet all of her expenses and to have money
left over to be used to purchase
transportation. The only income earned by the
respondent mother since January, 2005, was the
sum of $100.00 which was recently paid to her
by the mortgage brokerage agency where she is
in training to become a mortgage broker. The
respondent mother admitted that she still does
not have a driver's license or transportation.
The respondent mother conceded that she is not
under any disability, does not use drugs or
alcohol, and could not explain why she has not
been able to comply with the prior orders of
the Court. The issue of domestic violence
that was occurring at the time the children
were placed in the care of the agency has not
continued since the respondents separated in
January, 2004. However, the respondent mother
still does not have adequate housing for the
children, income to support the children, or a
means to transport the children. On multiple
occasions during the twelve months prior to
the filing of the termination of parentalrights petition in this cause, and subsequent
thereto, the respondent mother has had
sufficient income to maintain housing, but has
fallen behind on her rent and has demonstrated
an instability in maintaining a residence.
Although respondent mother has had numerous
jobs, she has had instability in maintaining
employment as she has lost several jobs due to
absenteeism. Throughout the majority of the
time the children have been in foster care,
the respondent mother has had the means and
ability to obtain a driver's license and
transportation, but has not done so for
reasons that the respondent mother cannot
explain. The respondent could have budgeted
her money, maintained a stable and suitable
residence and employment, secured
transportation, and enjoyed expanded
visitation with the minor children, but chose
not to do so. Despite having an adequate
income to provide for all of her expenses, the
respondent mother, on occasions, has had to
have the assistance from the Department of
Social Services in providing heating oil for
In termination proceedings, the trial judge acts as both
judge and jury, thus resolving any conflicts in the evidence. In
re Oghenekevebe, 123 N.C. App. 436, 439, 473 S.E.2d 393, 397
This is because when a trial judge sits as
both judge and juror, as he or she does in a
non-jury proceeding, it is that judge's duty
to weigh and consider all competent evidence,
and pass upon the credibility of the
witnesses, the weight to be given their
testimony and the reasonable inferences to be
In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984).
After reviewing the record and transcript in this case, we
find sufficient evidence was presented to support the trial court's
findings of fact. Further, [s]ince respondent specifically
assigned error to only [two] of the trial court's findings of fact,the remaining findings of fact are binding on this Court. In re
P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005) (citing
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
Presuming, without deciding, insufficient evidence was presented to
support findings of fact numbers 26 and 27, the trial court's order
contains numerous other sufficient findings of fact to support its
conclusion. This assignment of error is overruled.
B. Conclusion of Law
Respondent argues the trial court erred in concluding grounds
existed to terminate her parental rights pursuant to N.C. Gen.
Stat. § 7B-1111(a)(2). We disagree.
N.C. Gen. Stat. § 7B-1111(a)(2) provides:
(a) The court may terminate the parental
rights upon a finding of one or more of the
. . . .
2) The 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. 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. 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.2d169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
This Court has stated, a respondent's prolonged inability to
improve her situation, despite some efforts in that direction, will
support a finding of willfulness regardless of her good
intentions. In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d
89, 93 (2004) (citation and internal quotation marks omitted)
The children have continuously remained in foster care since
1 August 2002. The trial court conducted six permanency review
hearings in this case. Orders from five hearings directed DSS to
continue reunification efforts. Respondent failed to demonstrate
an ability to provide suitable housing, transportation, and income
so that the trial court could assess whether she was able to parent
Sufficient evidence exists to support the trial court's
conclusion of respondent's lack of progress to warrant termination
of her parental rights. This assignment of error is overruled.
Respondent argues the trial court abused its discretion by
terminating her parental rights. We disagree.
N.C. Gen. Stat. § 7B-1110 (2005) provides:
(a) After an adjudication that one or more
grounds for terminating a parent's rights
exist, the court shall determine whether
terminating the parent's rights is in the
juvenile's best interest. In making this
determination, the court shall consider the
(1) The age of the juvenile.
(2) The likelihood of adoption of the
(3) Whether the termination of parental rights
will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
(5) The quality of the relationship between
the juvenile and the proposed adoptive parent,
guardian, custodian, or other permanent
(6) Any relevant consideration.
We review the trial court's decision to terminate respondent's
parental rights for an abuse of discretion. In re Nesbitt, 147
N.C. App. at 352, 555 S.E.2d at 662.
A trial court may be reversed for abuse of
discretion only upon a showing that its
actions are manifestly unsupported by reason.
See Clark v. Clark, 301 N.C. 123, 271 S.E. 2d
58 (1980). A ruling committed to a trial
court's discretion is to be accorded great
deference and will be upset only upon a
showing that it was so arbitrary that it could
not have been the result of a reasoned
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
The trial court concluded:
6. Each of the minor children has been in a
prospective adoptive placement for a
substantial length of time, are bonded into
their present placements, and the children's
adoption by their present placement providers
is likely to occur in the event the
respondent's parental rights are terminated.
It is in the best interest of each of the
minor children that the parental rights of .
. . respondent mother . . . be terminated.
Respondent has failed to show the trial court's decision to
terminate her parental rights was manifestly unsupported by
reason. Id. This assignment of error is overruled.
The trial court's findings of fact numbers 26 and 27 are
supported by clear, cogent, and convincing evidence. The trial
court's order further contains other findings of fact, not excepted
to by respondent, to support the conclusion that respondent
willfully left the children in foster care for a period of twelve
months without showing she had made reasonable progress to correct
the circumstances that led to the removal of the children. N.C.
Gen. Stat. § 7B-1111(a)(2). The trial court did not abuse its
discretion in terminating respondent's parental rights. The trial
court's order is affirmed.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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