An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NO. COA05-1515
NORTH CAROLINA COURT OF APPEALS
Filed: 5 September 2006
IN THE MATTER OF: Stanly County
R.D. Nos. 01 J 16, 03 J 42
Appeal by respondent mother from order entered 3 February 2005
by Judge Christopher W. Bragg in Stanly County District Court.
Heard in the Court of Appeals 15 August 2006.
John Webster, for petitioner-appellee Stanly County Department
of Social Services.
Vita A. Pastorini, for petitioner-appellee Guardian ad litem.
Mercedes O. Chut, for respondent-appellant.
TYSON, Judge.
T.D. (respondent) appeals from order entered terminating her
parental rights of her minor child, R.D. We affirm.
I. Background
A. Consent Adjudication Order
Respondent is the mother of eight children. By 1993, four of
her children were living with foster parents. On 3 April 2001, the
Stanly County Department of Social Services (DSS) became involved
with respondent and her four remaining children, R.D., A.G., T.G.,
and S.C., after DSS substantiated that the children were neglected
by inappropriate discipline. DSS found that respondent bit R.D. on
his right cheek leaving teeth marks when he was nine years old.
DSS reported respondent had continuously exhibited her lack
of ability to exercise control and authority over her childrensince 29 August 2001. Respondent disciplined R.D. by hitting him
with a broomstick, choking him, and throwing him to the floor.
Respondent also allowed her boyfriend to whoop her children.
R.D. told DSS that respondent's boyfriend took him to a park and
tied his hands to a truck with a rope. Respondent's boyfriend then
held R.D. by his feet and beat him with a belt buckle. R.D. begged
DSS not to mention this incident to his mother because he was
afraid he would be beaten again. When DSS asked respondent about
the incident, she first stated that R.D. was lying. After further
discussion, respondent admitted that she did let her boyfriend take
R.D. to the park to whoop him because when you whoop them at
home, they scream and cut up like somebody's killing them.
On 10 September 2001, DSS received a telephone call from
respondent in which she stated [she] can't take it anymore and DSS
and the system could have the children because they don't listen
and want to do what they want to do. DSS arrived at respondent's
home and found her yelling and cursing at her children.
On 13 September 2001, DSS went to respondent's home to
transport her to a 9:00 a.m. appointment to discuss her children's
misconduct. When DSS arrived, they realized respondent was
scheduled to meet with R.D.'s school counselor at 8:30 a.m.
Respondent was cursing and belligerent. Respondent stated, F--k
you and I ain't going to no school for no meeting, y'all wanted the
children now you got them. DSS transported respondent to R.D.'s
school to discuss R.D.'s vision problems. Respondent was
uncooperative and walked out of the meeting. As respondent leftthe meeting, she told DSS the State can have them. Respondent
saw R.D. in class and told him wherever you go listen to the
person and behave.
DSS filed a Juvenile Petition on 14 September 2001 alleging
R.D. was an abused, neglected juvenile. R.D. was removed from
respondent's home and placed in non-secure DSS custody. On 21
March 2002, respondent stipulated that her children were neglected
juveniles as defined by N.C. Gen. Stat. . 7B-101 in a consent
adjudication order. R.D. remained in legal and physical custody of
DSS. The court ordered respondent to visit with R.D. at least once
per month and to attend all treatment planning sessions at
Alexander Children's Center. Respondent was also required to
participate in any family counseling deemed necessary. Respondent
was further ordered to submit to a mental health assessment and to
follow any recommended classes or counseling.
B. Mental Health Evaluation
Respondent was ordered to have a mental health assessment on
15 May 2002, but failed to appear until 15 July 2002. When the
assessment was completed, it was recommended respondent be
scheduled for a psychological evaluation. Respondent was examined
twice on 26 July and 2 August 2002 and was diagnosed with
Personality Disorder and antisocial and narcisstic traits.
Respondent was also found to suffer from an alcohol and cocaine
dependence which were in full sustained remission. The
psychological evaluation stated it [was] unlikely that court-
ordered treatment would result in a positive outcome given she[did] not see herself as carrying any responsibility for the
current situation. Respondent described herself as a good parent
and vehemently denied abusing her children. Respondent saw herself
as being unfairly targeted by Piedmont Behavioral Healthcare. It
was recommended that respondent continue to attend parenting
classes and a women's anger management class.
C. Anger Management
Along with the recommendation from the psychologist,
respondent's behavior also indicated she needed to attend anger
management classes. On 8 May 2002, R.D.'s sister was taken to the
hospital because respondent had hit her in the face and on her back
with a broomstick. This action led the court to conclude
respondent again neglected her children by using inappropriate
discipline. On 16 July 2002, respondent attended an administrative
review hearing to discuss recommendations and her therapy at
Piedmont Behavioral Healthcare. Respondent began arguing with a
relative. R.D.'s case manager stepped in and was walking the
relative out the door when respondent assaulted him while trying to
hit the relative. Assault charges were filed on respondent. The
trial court adopted the recommendation of the psychologist and
ordered respondent to attend anger management class on 26 September
2002. The mental health counselor agreed to schedule classes that
did not conflict with respondent's work schedule. Prior to 3
January 2003, respondent attended only one of five scheduled
meetings because of work. Respondent completed her anger
management program on 13 May 2003 with little effect on herbehaviors. On 29 May 2003, during an administrative hearing,
respondent walked out of the courtroom and assaulted the guardian
of R.D.'s youngest brother.
D. Parenting Class
Respondent started attending mental health counseling sessions
with R.D. on 28 September 2001 at Piedmont Behavioral Healthcare.
On 19 March 2002, Piedmont Behavioral Healthcare decided to use
half of respondent's counseling sessions for parenting instructions
because she had failed to attend parenting classes contrary to
court orders.
In June 2002, respondent began attending parenting classes but
stopped coming after the 8 August 2002 court date. The initial
classes required attendance for ten consecutive weeks. Respondent
did not attend ten consecutive parenting classes. The structure
was changed to a twenty-four consecutive week period. Since
respondent began participation in parenting classes, she attended
a total of six sessions. Respondent failed to attend thirty-one
times prior to being dismissed from the group in June 2003.
Respondent stated she did not feel the need to go to the classes
because she had never abused her children and did not see her part
in the children being in foster care.
From June 2002 to June 2003, numerous attempts were made to
get respondent to return to the group. Respondent was reminded
several times, both in and out of court, of her obligation to
attend and the day and time the group met. Respondent made no
further contact until she showed up unannounced on 13 October 2003expecting to re-enter the group. Respondent had ample opportunity
to attend the group sessions but chose not to avail herself of
these classes. Respondent had cited transportation issues in the
past as her reason for not attending.
Respondent rejoined the group on 4 November 2003. She
sporadically attended classes in late 2003 and early 2004, but
never attended twenty-four consecutive meetings. In the opinion of
respondent's counselor, respondent had not attended enough
parenting sessions to actually gain any specific knowledge about
R.D.'s situation or how to handle discipline issues appropriately.
The counselor stated, Given the evidence within her chart
indicating [respondent] is unlikely to benefit from treatment
(i.e., her psychological evaluation, completion of anger management
with a subsequent assault), even if she does attend parenting
group, actual behavioral or attitudinal change is not expected.
E. Family Therapy
On 28 March 2002, respondent visited Alexander Children's
Center for her first treatment team meeting. At this meeting, a
long term plan of treatment, that included reunification with her
children, was discussed. Following the visit, R.D. exhibited
tactile and visual hallucinations. R.D. had difficulty falling
asleep and became more aggressive and oppositional after seeing
respondent. R.D. requested that he not be required to see
respondent at their first family therapy session on 23 April 2002
but later changed his mind and stated he wanted to see respondent
a little bit. The afternoon after the meeting, R.D. wasrestrained and stated that he did not want to see respondent. Due
to R.D.'s behavior following respondent's visits, these sessions
stopped on 2 May 2002. The treatment sessions were to resume at
the recommendation of R.D.'s therapist.
Alexander Children's Center staff scheduled an appointment
with respondent on 17 September 2002. DSS arranged transportation
for respondent, but she failed to attend because she said she was
out of town for her sister's funeral. Respondent did not actually
attend the funeral or call to reschedule her appointment.
Respondent did not attend another therapy session until 20 December
2002. Although respondent was not following court orders, she was
still offered individual therapy one day a week without R.D. being
present. These individual sessions were offered to work on
respondent's parenting skills and to work on and resolve the
problems that had led to R.D. being placed into custody. By April
2003, respondent had only attended one family therapy session.
Respondent also visited R.D. only twice after 7 January 2003.
On 16 May 2003, respondent showed up at Alexander Children's
Center unannounced and walked the halls trying to find R.D. A
counselor was notified and respondent and R.D. sat down for a
treatment meeting. During the session, respondent asked R.D. if he
was ready to come home. R.D. left the meeting at that point.
Respondent attended a therapy session in July and visited R.D. in
December 2003. In January 2004, the hearing began and no further
visitation occurred.
F. R.D.'s Improved Behavior
Since R.D. was placed in non-secure custody with DSS on 14
September 2001, he was placed in twelve different foster homes
before finally being placed in Alexander Children's Center on 8
March 2002. R.D. had aggressive acting out behaviors that led to
him being discharged from each foster home. R.D. was originally
placed in the psychiatric residential treatment facility unit at
Alexander Children's Center. Upon arriving at the center, R.D. was
exhibiting behaviors such as hyperactivity, impulsiveness,
inability to focus, provoking peers to assault him, assaulting
peers, oppositional behavior, difficulty falling asleep, biting
himself, self-mutilation, and assaulting staff. R.D. also
exhibited tactile and visual hallucinations. R.D.'s behaviors
escalated after visits with respondent. Due to these behaviors,
visits with respondent ceased. Telephone meetings were suggested
and R.D. was allowed to call respondent every Tuesday. R.D.
declined to call respondent on all but one occasion. Due to his
behavior on those Tuesdays, the telephone calls were no longer
offered.
R.D. was diagnosed with oppositional defiant disorder and
attention deficit disorder. During therapy, R.D. slowly opened up
about his thoughts and feelings about his mother and how she had
treated him. In a letter, R.D. wrote:
My mom ruined my life. My mom ruined my life
by hitting me with her fist and almost beating
me to death. Right now a lot of moms are
having their kids taken away and put up for
adoption and I hope that I don't have to do
that. I feel sad for myself. I'm sorry for
making you cry the other day because somebody
said I didn't love you. I really do love youbut it is better that I don't see you that way
I don't have to get beaten. I told the
teacher that you bit me on the face and you
did and you whipped me so I don't want to get
whipped when I tell the truth. I am making
plans to live with someone else, another
family and I want to be adopted.
R.D. indicated in therapy sessions that he was special because he
was still alive and that his life was special because he was not
at home. R.D. wrote a letter to the judge saying that he wanted
the judge to know what his mother had done to him and he thought
respondent would hurt him bad enough to kill him.
While out of his mother's care, R.D.'s behavior improved
significantly. By February 2003, R.D. stepped down from his
placement in the psychiatric residential treatment facility unit to
a Level II placement in a family type setting. By October 2003,
R.D. was performing better in the school and in a family
environment.
G. Termination of Parental Rights
DSS filed the petition for termination of parental rights on
1 May 2003. The petition alleged that respondent: (1) neglected
R.D. and (2) willfully left R.D. in foster care for more than
twelve months without showing reasonable progress in correcting the
conditions which led to his removal. The trial court entered its
order terminating respondent's parental rights on both grounds on
9 February 2005. The court concluded that clear and convincing
evidence showed it was in the best interest of R.D. that
respondent's parental rights be terminated. Respondent appeals.
II. Issues
Respondent argues that the trial court erred by: (1) entering
findings of fact numbered 7, 10, 11, 12, 13, 14, and 15; (2)
concluding she had willfully left R.D. in foster care or placement
outside of the home for more than twelve months without showing to
the satisfaction of the court that reasonable progress had been
made; (3) concluding she had neglected R.D. pursuant to N.C. Gen.
Stat. . 7B-1111(a)(1); (4) incorporating into its order the
multiple records and documentation contained on the official
evidence log; and (5) taking judicial notice of the court file.
III. Standard of Review
A termination of parental rights proceeding involves two
separate analytical phases: (1) an adjudication stage and (2) 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 phase.
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
standard for appellate 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, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc.
rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001). Clear, cogent,
and convincing describes an evidentiary standard stricter than a
preponderance of the evidence, but less stringent than proof beyonda reasonable doubt. N.C. State Bar v. Sheffield, 73 N.C. App.
349, 354, 326 S.E.2d 320, 323, cert. denied, 314 N.C. 117, 332
S.E.2d 482 (1985). We review the trial court's conclusions of law
de novo. Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C.
App. 332, 336, 477 S.E.2d 211, 215 (1996).
If the petitioner meets its burden of proving at least one
ground for termination of parental rights exists under N.C. Gen.
Stat. . 7B-1111(a), then the trial court proceeds to the
dispositional phase and determines whether termination of parental
rights is in the best interest of the child. N.C. Gen. Stat. . 7B-
1110(a) (2005). We review the trial court's best interests
analysis and decision under an abuse of discretion standard. In re
Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
IV. Findings of Fact
Respondent argues findings of fact numbered 7, 10, 11, 12, 13,
14, and 15 are not supported by clear, cogent, and convincing
evidence. We disagree.
In a non-jury neglect adjudication, the trial court's
findings of fact, [if] supported by clear and convincing competent
evidence are deemed conclusive, even where some evidence supports
contrary findings. In re Helms, 127 N.C. App. 505, 511, 491
S.E.2d 672, 676 (1997) (citing In re Montgomery, 311 N.C. 101, 111,
316 S.E.2d 246, 253 (1984)). It is the trial 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 drawn therefrom. Inre Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984).
If different inferences may be drawn from the evidence, the trial
judge must determine which inferences shall be drawn and which
shall be rejected. In re Gleisner, 141 N.C. App. 475, 480, 539
S.E.2d 362, 365-66 (2000). Unchallenged findings of fact are
binding on appeal. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127,
133 (1982).
Here, the trial court found:
7. That the Department of Social Services
worked with [respondent] for more than one
year prior to the filing of the original
Juvenile Petition on September 13, 2001.
Satisfactory progress with case management
services was not made within that one year
period, which led the Department of Social
Services to file the Juvenile Petition[.]
. . . .
10. The Court received and considered
multiple records and documentation that is
contained on the official evidence log kept by
the Clerk of Court, all of which is
specifically referenced and incorporated
herein.
11. Significant efforts to reunify R.D. and
[respondent] were made by the Stanly County
DSS including provision of transportation
services, visitation resources, coordination
of efforts between mental health agencies, the
mother and the child, and supervision of the
provision of resources for the minor child.
[Respondent] was apprised at different times
throughout this case of the resources
available to her, including transportation,
family therapy appointments, visitation times,
and counseling/mental health appointments, but
that despite the efforts of the Stanly County
DSS and other service providers, [respondent]
absented herself from these services the
majority of the time. R.D. has been in foster
care and has failed to exhibit positive
response to any service in that she is in nobetter position to care for the child today
than she was at the outset of the matter.
12. Efforts were made by the staff at
Alexander Children's Center and Piedmont
Behavioral Healthcare/Daymark, including those
mentioned above, to assist [respondent] in
gaining and understanding of how to overcome
the issues that led to placement of R.D. and
how to accommodate the needs of R.D. based on
his past and future behavioral and
environmental needs. Those efforts included
the provision of parenting classes, anger
management classes, family therapy, visitation
resources, individual therapy, assessments and
evaluations.
13. Since September 2001 and up to and
including the date of entry of this Order,
[respondent] has consistently advised or
indicated to professional personnel working
with her or R.D. that she does not understand
what role she played in R.D.['s] removal from
her custody, and that she played no part in
his removal from her care. All of the
information, documentation and testimony
corroborated that [respondent] held these
beliefs up to and including the conclusion of
this hearing.
14. From September 2001 until the present
time, the Court cannot conclude or find based
on the testimony and exhibits presented that
[respondent] has successfully completed any of
the services offered to her. More
specifically, the Court does find as follows:
(a) That [respondent] attended 16 sessions of
anger management classes with Cheryl
Smith, but did not finish those sessions
until mid May 2003 after having been
Ordered to do the same no less than 12
months prior to the filing of the
Termination of Parental Rights Petition.
More specifically the Court finds that
[respondent] showed reluctancy to
complete this Court Ordered objective of
anger management classes by failing to
follow through with the Court's Order to
complete the necessary evaluations until
the summer of 2002, months after she was
Ordered to do so and after several missed
or cancelled appointments. [Respondent]then did not complete anger management
classes until May 2003 after having been
eliminated from the group for lack of
attendance in early 2003.
(b) The Court finds that it initially
specifically requested Piedmont
Behavioral Healthcare to provide these
classes at times matching [respondent's]
work schedule to assist her, and that she
failed to follow through with those times
when they were made specifically
available to her.
(c) That upon completion of the anger
management sessions, [respondent]
exhibited two separate incidents of
violent behavior, one in the Stanly
County Courthouse following [a] hearing
in this matter at the end of May 2003,
and one in an administrative review
meeting at the Stanly County DSS facility
in July 2003 which led to criminal
assault charges and an associated guilty
plea by [respondent].
(d) The actions and omissions of [respondent]
during and after the provision of anger
management classes suggest that she has
not availed herself of the same and has
not learned anything from them, leading
to the probability of future neglect of
the child and the continued neglect of
the child up to and including the entry
of this Order in that she cannot present
to the Court that she can properly parent
R.D. The Respondent Mother has shown no
quantifiable ability to control the anger
issues that led to the initial removal of
R.D. from her care.
(e) That [respondent] enrolled in, but has
never completed parenting classes offered
by Piedmont Behavioral Healthcare/Daymark
through Connie Philbeck. [Respondent]
has shown little to no improvement in her
ability or understanding of how to parent
R.D. and has not availed herself of this
particular resource which was designed to
assist her. The Court again specifically
requested that these classes be afforded
to [respondent] on a consistent basis at
a time that would accommodate her
schedule. The Court finds that the day
and time of these classes has never
changed since the beginning of thismatter in 2001, but that [respondent]
exhibited a pattern of claiming she did
not know when the classes were, [no
showing] for several classes in a row.
However, despite these claims
[respondent] would appear after many
absences at the designated time and place
without instruction or prompting by Ms.
Philbeck or staff at her agency.
(f) [Respondent] was offered
visitation/family therapy at Alexander
Children's Center beginning in March 2002
upon R.D.['s] admission there. From
March 2002 until the present time
[respondent] availed herself of
visitation or family therapy sessions on
nine total occasions. [Respondent] often
offered the excuse of a lack of
transportation to get to sessions,
including ones that she scheduled
herself.
(g) The Court finds that in February 2003
[respondent] appeared at a designated
time and had a family therapy session
with Gin Leggett.
(h) The Court also finds that [respondent]
appeared at Alexander Children's Center
in May 2003 without notice to the
facility or the therapist demanding to
see R.D. Following her arrival Ms.
Leggett did hold an unscheduled session
with [respondent] resulting in R.D.
walking out of the room.
(I) There has been no evidence offered
suggesting that [respondent] benefitted
from any family therapy session at
Alexander Children's Center prior to or
since May 2003.
(j) [Respondent] did not comply to the
satisfaction of the Court with any Court
Order or Family Service Case Plan in this
matter for at least 12 months prior to
the filing of this action. [Respondent]
cannot show to the Court that she has
completed her own treatment based on her
own psychological issues, nor that she
has participated in the treatment of R.D.
to the point where she can exhibit any
understanding of how to both parent him
and/or correct the conditions that led to
his removal from her.
[15.] Based upon the findings contained
herein, and considering the extreme progress
that R.D. has made through no effort of his
mother, the Court finds that it would be
extremely detrimental to R.D. [to be] placed
with his mother and that it would be in his
best interests for her parental rights to be
terminated at this time.
These findings of fact are based upon clear, cogent, and
convincing evidence. In re Young, 346 N.C. at 247, 485 S.E.2d at
614. The trial court heard the following testimony: (1) Nancy
Davis, a DSS social worker; (2) Dr. Lisa Brandyberry, a
psychologist who performed initial psychological evaluations of
respondent; (3) Connie Philbeck, a therapist for respondent; (4)
Daniel Brown, respondent and R.D.'s case manager at Piedmont
Behavioral Healthcare; (5) Gin Leggett, respondent and R.D.'s
individual family therapist at Alexander Children's Center; (6)
Julie Douglas, respondent and R.D.'s therapist at Alexander
Children's Center; (7) Gregory Biles, their original relative
placement; (8) Rachel F. Hough, housing authority director; (9)
Ronald Dunlap, respondent's friend; (10) Shirley Lowder, former
school social worker; and (11) Carolyn Davis, respondent's
neighbor. The trial court also considered psychological and
psychiatric evaluations, medical records and reports, and family
case plans. After a thorough review of the record and transcript,
we find clear, cogent, and convincing evidence was presented to
support these findings of fact. This assignment of error is
overruled.
V. Reasonable Progress
Respondent argues the trial court erred in concluding that she
had willfully left R.D. in foster care or placement outside of the
home for more than twelve months without showing to the
satisfaction of the court that reasonable progress had been made.
We disagree.
N.C. Gen. Stat. . 7B-1111(a) (2005) states:
The court may terminate the parental rights
upon a finding of one or more of the
following:
. . . .
(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.
This Court has stated:
At the hearing on a petitioner's motion for
termination of parental rights, the burden of
proof shall be upon the petitioner or movant
to prove the facts justifying such termination
by clear and convincing evidence. Thus, in
order to prevail in a termination of parental
rights proceeding . . . the petitioner must:
(1) allege and prove all facts and
circumstances supporting the termination of
the parent's rights; and (2) demonstrate that
all proven facts and circumstances amount to
clear, cogent, and convincing evidence that
the termination of such rights is warranted.
In re Baker, 158 N.C. App. at 492-93, 581 S.E.2d at 145 (emphasis
supplied) (internal citations omitted).
This Court has also stated:
[W]e must also determine that there was clear,
cogent, and convincing evidence that (1)
respondents willfully left the juvenile in
foster care for more than twelve months, and(2) that each respondent had failed to make
reasonable progress in correcting the
conditions that led to the juvenile's removal
from the home.
Id. at 494, 581 S.E.2d at 146.
Regarding willfulness, this Court has stated, A finding of
willfulness does not require a showing that the parent was at
fault. Willfulness is established when the respondent had the
ability to show reasonable progress, but was unwilling to make the
effort. In re C.C., ___ N.C. App. ___, ___, 618 S.E.2d 813, 819
(2005) (internal quotations omitted).
In In re Nolen, the respondent mother allegedly failed to make
reasonable progress. 117 N.C. App. 693, 699, 453 S.E.2d 220, 224
(1995). This Court held the respondent's alcoholism and abusive
living arrangement [had] continued, and the respondent [had] not
obtained positive results from her sporadic efforts to improve her
situation. Id. at 699-700, 453 S.E.2d at 224-25.
In In re Baker, this Court held the respondent father
willfully left his child in foster care for more than twelve months
without making reasonable progress towards correcting the
circumstances that led to his child's removal. 158 N.C. App. 491,
494, 581 S.E.2d 144, 146 (2003). The respondent father's son had
bruises on his body from improper discipline administered by the
respondent father. Id. at 495, 581 S.E.2d at 147. The respondent
father attended anger management classes, but the therapist who
taught the classes testified the respondent father had a limited
understanding of the concepts involved. Id. at 496, 581 S.E.2d at
148. The respondent father did not complete parenting classes,failed to complete the requirements of the case plan, and refused
to sign a DSS family plan for reunification. Id.
This Court has stated:
Extremely limited progress is not reasonable
progress. In re Nolen, 117 N.C. App. 693,
700, 453 S.E.2d 220, 224-225 [(1995)]; see
also In re Fletcher, 148 N.C. App. 228,
235-236, 558 S.E.2d 498, 502 (2002) (upholding
termination of parental rights order where
although the respondent mother made some
efforts, the evidence supports the trial
court's determination that she did not make
sufficient progress in correcting conditions
that led to the child's removal); In re
Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676,
681 [(1989)] (holding trial court's finding
was supported by clear, cogent, and convincing
evidence where although respondent has made
some progress in the areas of job and
parenting skills, such progress has been
extremely limited).
Id.
Here, the trial court made numerous findings of fact detailing
respondent's lack of reasonable progress. The court ordered
respondent to: (1) visit with R.D. at least once per month; (2)
attend all treatment planning sessions at Alexander Children's
Center; (3) participate in any family counseling that was deemed
necessary; and (4) submit to a mental health assessment and to
follow any recommended classes or counseling.
The trial court found respondent sporadically attended
parenting classes after being reminded of her obligation to attend.
Respondent did not successfully complete the required twenty-four
consecutive sessions. Respondent also did not attend family
therapy or individual therapy on a consistent basis despite the
court order. Respondent continuously stated to DSS that she hadnever abused her children and that she did not understand why DSS
was keeping R.D. in foster care. A mental health professional also
testified that respondent did not take responsibility for R.D.'s
removal from her custody and that respondent felt she had been
unfairly targeted. Based on this information, the court concluded
that respondent failed to exhibit positive response to any service
in that she [was] in no better position to care for the child today
than she was at the outset of the matter.
Respondent also argues she acted appropriately in trying to
place R.D. in DSS's custody because she lacked the ability to
provide the resources he needed, i.e. twenty-four hour nursing
assistance and a staff of trained clinicians. The trial court
found:
Efforts were made by the staff at Alexander
Children's Center and Piedmont Behavioral
Healthcare/Daymark, including those mentioned
above, to assist [respondent] in gaining and
understanding of how to overcome the issues
that led to placement of R.D. and how to
accommodate the needs of R.D. based on his
past and future behavioral and environmental
needs.
A counselor testified that at the time of the hearing, respondent
had not gained any knowledge about R.D.'s situation or how to
appropriately handle him. R.D. underwent numerous hospitalizations
for his behaviors at the time of his placement in Alexander
Children's Center, which included oppositional defiant behavior,
nightmares, tactile and visual hallucinations, and paranoia. Many
of these behaviors started or increased when R.D. was forced tovisit with respondent. R.D.'s behavior has significantly improved
since that time.
The trial court found:
[R.D.'s] behavior, since being placed at
Alexander Children's Home in March 2002, has
made significant improvements to the point
where he has been stepped-up to the current
level of care he is receiving from his
original placement in the PRTF Unit at
Alexander Children's Center . . . The court
finds, based on the testimony presented, that
R.D. is capable of being placed in regular
foster care at this time.
This finding of fact has not been challenged on appeal.
Unchallenged findings of fact are binding on appeal. In re Moore,
306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). This finding
negates respondent's argument that only twenty-four hour nursing
assistance and a staff of trained clinicians could meet his needs.
If R.D. was capable of being placed in regular foster care,
respondent should have been capable of taking care of him.
We hold that the trial court's findings of fact support its
conclusion. This assignment of error is overruled. In light of
our holding, we do not consider the issue of whether respondent
neglected R.D. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d
at 908 (Once one or more of the grounds for termination are
established the court can address the dispositional stage.).
VI. Court Records
Respondent argues the trial court erred in incorporating into
its order the multiple records and documentation contained on the
official evidence log and taking judicial notice of the entire
court file. We disagree. Respondent argues incorporation of all exhibits as a finding
of fact defies the Court's duty to evaluate evidence and resolve
conflicts in the evidence.
N.C. Gen. Stat. . 7B-1109(e) (2005) provides:
The 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. 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.
The trial court made specific findings of fact regarding
respondent leaving R.D. in foster care or placement outside of the
home for more than twelve months without showing to the
satisfaction of the court that reasonable progress had been made.
The trial court found:
11. [Respondent] was apprised at different
times throughout this case of the resources
available to her, including transportation,
family therapy appointments, visitation times,
and counseling/mental health appointments, but
that despite the efforts of Stanly County DSS
and other service providers, [respondent]
absented herself from these services the
majority of the time.
. . . .
14(b). The Court finds that it initially
specifically requested Piedmont Behavioral
Healthcare to provide [anger management]
classes at times matching [respondent's] work
schedule to assist her, and that she failed to
follow through with those times when they were
made specifically available to her.
14(c). That upon completion of the anger
management sessions, [respondent] exhibited
two separate incidents of violent behavior.
14(d). The Respondent Mother has shown no
quantifiable ability to control the anger
issues that led to the initial removal of R.D.
from her care.
14(e). That [respondent] enrolled in, but has
never completed parenting classes offered by
Piedmont Behavioral Healthcare/Daymark through
Connie Philbeck. [Respondent] has shown
little to no improvement in her ability or
understanding of how to parent R.D.
14(j). [Respondent] did not comply to the
satisfaction of the Court with any Court Order
or Family Services Case Plan in this matter
for at least 12 months prior to the filing of
this action.
These findings of fact support the trial court's conclusion,
apart from its incorporation of prior court documents, that
respondent willfully left R.D. in foster care or other placement
for more than twelve months without making reasonable progress in
accordance with N.C. Gen. Stat. . 7B-1111(a)(2). The court [took]
evidence, [found] the facts, and adjudicate[d] 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). This assignment of error
is overruled.
Respondent also argues the court file fails to qualify for
judicial notice. This Court has stated that in a proceeding to
terminate parental rights, as to the court file generally, a court
may take judicial notice of earlier proceedings in the same cause.
In re Byrd, 72 N.C. App. 277, 279, 324 S.E.2d 273, 276 (1983). The
trial court did not err by taking judicial notice of the court
file. This assignment of error is overruled.
VII. Conclusion
The trial court's findings of fact numbered 7, 10, 11, 12, 13,
14, and 15 are supported by clear, cogent, and convincing evidence.
The trial court's order contains sufficient findings of fact to
support the conclusion that respondent willfully left R.D. 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 R.D. N.C. Gen. Stat. . 7B-1111(a)(2). Since one
ground will support a termination of a respondent's parental
rights, we do not review respondent's remaining assignment of error
regarding neglect.
The trial court did not err by incorporating into its order
the multiple records and documentation contained on the official
evidence log or by taking judicial notice of the entire court file.
The trial court did not abuse its discretion in terminating
respondent's parental rights. The trial court's order is affirmed.
Affirmed.
Judges WYNN and HUDSON concur.
Report per Rule 30(e).
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