Appeal by respondent mother from order entered 6 May 2005 by
Judge Wayne L. Michael in District Court, Davidson County. Heard
in the Court of Appeals 12 September 2006.
Charles E. Frye, III, for petitioner-appellee.
Laura B. Beck, for petitioner-appellee Guardian ad Litem.
Mercedes O. Chut, for respondent-appellant.
WYNN, Judge.
“Willfulness may be found where the parent recognizing her
inability to care for the children, voluntarily leaves the children
in foster care.”
(See footnote 1)
Here, Respondent-Mother repeatedly engaged in
substance abuse that required her to relinquish her child, N.L.P.,
to foster care. Because the record shows Respondent engaged in
voluntary behavior which continuously resulted in the
relinquishment of N.L.P. to foster care, we affirm the trial
court's order terminating her parental rights.
On 23 May 2003, Davidson County Department of Social Services
(DSS) petitioned to terminate Respondent's parental rights
regarding N.L.P. The evidence at the termination hearing tended to
show that in 1999, Respondent was convicted of criminal violations
subjecting her to sentences of sixty and thirty-six months
intensive supervised probation. In June 1999, DSS filed a petition
alleging N.L.P. was neglected and dependent, and a trial court
entered an order for DSS to assume custody. In September 1999, an
adjudication hearing was held to determine whether N.L.P. was
neglected and dependent. At the hearing, Respondent stipulated
that:
1. [N.L.P. was] not receiving proper
supervision.
2. Environment injurious (house in disarray,
. . . no power in home).
3. Substance abuse.
To address Respondent's substance abuse, the trial court ordered
that Respondent submit a to substance abuse assessment and comply
with the recommendation for treatment. The trial court ordered DSS
to retain custody of N.L.P. While Respondent participated in
substance abuse programs, N.L.P. remained in foster care from 16
July 1999 until 22 May 2000, a period of eleven months.
On 9 August 2000, a DSS social worker observed Respondent and
reported that Respondent was obviously “high.” When the social
worker confronted Respondent about her behavior, Respondent replied
that she had gotten her medication, and showed the social worker
bottles of Xanax and Prozac. A court subsequently ordered
Respondent to complete a detoxification program for prescriptionmedications. While Respondent participated in the detoxification
program for prescription medication and a prerequisite
detoxification program for methadone, DSS again assumed physical
and legal custody of N.L.P. from 24 August 2000 until 13 November
2000, a period of over two months.
In a trial court review hearing held 8 May 2001, Respondent
admitted she had relapsed into substance abuse. Subsequently, a
trial court ordered DSS to retain physical and legal custody of
N.L.P. The court also ordered that Respondent could regain custody
of N.L.P. if she entered Casaworks, a one-year substance abuse
program. However, Respondent did not enter Casaworks, and her
probation was revoked. Respondent was incarcerated from 28 August
2001 until 28 February 2003.
After Respondent's release from prison, she lived with her
husband at Amends Ministry, located in Greensboro, North Carolina,
and obtained a job. Respondent took drug tests administered by
Amends Ministry on 14 August 2003, 5 November 2003, 10 December
2003, and 10 February 2004. All tests were negative for drugs.
Sadly, Respondent's husband died on 22 February 2004. After her
husband's death, Respondent did not return to work and admitted to
again using drugs.
Respondent moved from Amends Ministry, and because she had
completed her sentence ordered by the trial court, drug tests
results were no longer available. DSS supervised visitations
between Respondent and N.L.P. from March 2004 to 2005. DSS workers
reported that at the weekly visitations Respondent would becomerestless, talk fast, shake, sweat profusely, and fall asleep.
N.L.P. remained in foster care from 21 June 2001, before
Respondent's incarceration, through the date of the termination
hearing, 10 February 2005.
At the time of the hearing to terminate parental rights, an
officer from the Thomasville Police Department testified that
during an accident investigation, Respondent stated that she was on
methadone and had used crack cocaine. The officer described
Respondent as mumbling, then talkative, crying, and eventually
falling asleep in the back of the patrol car.
From the order terminating her parental rights, Respondent
appeals. She argues that the trial court erred by (I) concluding
as a matter of law that Respondent willfully left N.L.P. in foster
care or placement outside the home for more than twelve months
without showing to the satisfaction of the court that reasonable
progress had been made, and (II) delaying entry of the order in
this case beyond the statutory requirement of thirty days after the
trial.
(See footnote 2)
I.
Respondent first argues that the trial court erred in
concluding as a matter of law that Respondent willfully left
N.L.P. in foster care or placement outside the home. We disagree. Under Section 7B-1111(a)(2) of the 2003 North Carolina General
Statutes:
The court may terminate the parental rights
upon a finding . . . (2)[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. 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.
The termination of parental rights under
Section 7B-1111(a)(2)
involves a two-part process: (1) the adjudication phase, governed
by Section 7B-1109, and (2) the disposition phase, governed by
Section 7B-1110.
See In re Hendren, 156 N.C. App. 364, 366, 576
S.E.2d 372
, 375 (2003) (citation omitted).
In the adjudication phase, “[t]he 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. .
. . [A]nd all findings of fact shall be based on clear, cogent and
convincing evidence.” N.C. Gen. Stat. § 7B-1109 (e), (f) (2003).
On appeal, we review the adjudication phase to determine whether
“the trial court's findings are supported by clear, cogent, and
convincing evidence and whether the findings support the
conclusions of law.”
Hendren, 156 N.C. App. at 367, 576 S.E.2d at
375 (citation omitted). A clear, cogent, and convincing standard
is an intermediate standard of proof, greater than thepreponderance of the evidence standard that is required for most
civil trials but not as stringent as proof beyond a reasonable
doubt.
See In re Montogmery, 311 N.C. 101, 109-10, 316 S.E.2d 246,
252
(1984) (citation omitted).
In the dispositional phase, the court (having adjudicated that
one or more grounds for terminating a parent's rights exist),
determines whether terminating the parent's rights is in the
juvenile's best interest. N.C. Gen. Stat. § 7B-1110 (2003). Upon
a finding that it would be in the best interests of the child to
terminate a parent's rights,
the trial court has the discretion to
terminate parental rights.
See Hendren, 156 N.C. App. at 366, 576
S.E.2d at
375.
On appeal, we review the dispositional phase under
an abuse of discretion standard.
Id. at 367, 576 S.E.2d at
375.
Here, Respondent challenges the trial court's adjudication
phase findings of fact and conclusion that Respondent
willfully
left N.L.P. in foster care or placement outside the home
for a
period of twelve months
. Thus, we must determine
whether “the
trial court's findings are supported by clear, cogent, and
convincing evidence and whether the findings support the
conclusions of law.”
Id. at 367, 576 S.E.2d at 375 (citations
omitted).
In
Shepard
we distinguished willfulness, as considered when a
parent willfully leaves a child in foster care, from willful
abandonment. 162 N.C. App. 215, 591 S.E.2d 1 (2004)
.
“Willfulness” when terminating parental rights
on the grounds of N.C. Gen. Stat. §
7B-1111(a)(2), is something less than
“willful” abandonment when terminating on theground of N.C. Gen. Stat. § 7B-1111(a)(7).
. .
. Willfulness may be found where the parent,
recognizing her inability to care for the
children, voluntarily leaves the children in
foster care.”
Id. at 224-25, 591 S.E.2d at 7 (internal and external citations
omitted).
As we have held that “[w]illfulness may be found where
the parent recognizing her inability to care for the children,
voluntarily leaves the children in foster care,”
Id. at 225, 591
S.E.2d at 7 (citation omitted)
, we must also allow for that same
finding where a parent voluntarily and continuously engages in
behavior which continuously results in a trial court ordering her
child into foster care. In addition, grounds for the termination of
parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) (2003), where
a parent is found to have willfully left the juvenile in foster
care for more than twelve months, do not require that the months in
foster care be continuous.
See In re Taylor, 97 N.C. App. 57, 387
S.E.2d 230 (1990).
As the facts indicate, between July 1999 and the hearing on
the termination of Respondent's parental rights, in February 2005,
Respondent was on a number of occasions found to have engaged in
substance abuse. Respondent's conduct granted a trial court
authority to order substance abuse treatment and accordingly place
N.L.P. in foster care as the limitations of treatment facilities
and program parameters dictated
. Respondent's pattern of substance
abuse over that period corresponded to the consequence that N.L.P.
was placed in foster care for a total of fourteen months beforeRespondent was incarcerated and twenty-three months after her
release.
In light of this, we find the evidence sufficient to meet a
clear, cogent, and convincing standard that the trial court could
find Respondent's relinquishment of N.L.P. to foster care to be
willful. We also find the evidence sufficient to a clear, cogent,
and convincing
standard
that Respondent willfully left N.L.P. in
foster care or placement outside the home for a period of at least
twelve months
.
Respondent also challenges the trial court's determination
that Respondent failed to
make reasonable progress in correcting
the conditions which led to the removal of N.L.P. But again, the
evidence does not support her challenge.
At the adjudication hearing held in September 1999, Respondent
stipulated to substance abuse as one of the grounds for neglect.
In November 1999, in compliance with Respondent's sentence to
intensive probation stemming from criminal convictions,
Respondent
enrolled in His Laboring Few Ministry Residential Program, a
substance abuse program. However, before Respondent could complete
the program, she returned late from a weekend pass and appeared to
program staff to be under the influence. As a result, His Laboring
Few Ministry asked Respondent to leave.
On 16 February 2000, a trial court ordered Respondent to
attend Davidson County's Day Reporting Center, a thirty-six week
intensive outpatient service for substance abuse offenders. On 9
August 2000, a social worker made an unannounced visit toRespondent's home. The social worker reported that it was obvious
Respondent was “high”: she was “sleepy acting,” and her speech was
slurred. Respondent stated that she had been to get her medication
and showed the social worker bottles of Xanax and Prozac.
On 14 August 2000, a trial court ordered Respondent to
complete a detoxification program for prescription medication. But
before she could be admitted, Respondent confessed to taking
methadone. Accordingly, Respondent was required to participate in
detoxification programs for methadone and prescription medications.
On 13 November 2000, a trial court ordered Respondent to
attend the Recovery Group at Davidson County Mental Health and to
receive Intensive Outpatient Support through the Davidson County
Day Reporting Center. Both programs are designed to address
substance abuse issues. On 2 January 2001, Respondent tested
positive for LSD at the Day Reporting Center. On 18 January 2001,
Respondent tested positive for morphine at the Davidson County
Mental Health Center. On 26 April 2001, Respondent tested positive
for cocaine and opiates.
On 1 May 2001, the Day Reporting Center issued a letter
negatively terminating Respondent from the Intensive Outpatient
Support Program.
In its letter, the Day Reporting Center cited
seventeen missed substance abuse treatment groups due to sickness
(verification not provided), eight missed group meetings with no
reason stated, six treatment violations, poor staffing reports,
positive opiate drug screening on 5 December 2000 and positive LSD
screening on 2 January 2001, ten or more missed office visits,failure to follow up with school/housing/vocational rehabilitation,
not working when capable of doing so, and failure to call in
consistently. A trial court revoked Respondent's probation and
activated a sentence of incarceration.
Respondent reported to the Central Women's Prison on 28 August
2001,
and remained incarcerated until 19 March 2003. While in
prison, Respondent was also convicted of possession of a Schedule
I controlled substance stemming from charges alleged in May 2001.
During supervised visits between May 2004 and February 2005,
DSS social workers reported statements by Respondent that she heard
noises and that a picture had flown off of her kitchen wall. A
visitation supervisor testified that
she became concerned with
Respondent's conduct. She testified that during visits Respondent
would become restless, talk fast, sweat profusely, shake, and fall
asleep.
This evidence was sufficient to meet a clear, cogent, and
convincing standard that Respondent had failed to make reasonable
progress in correcting her drug abuse. Accordingly, we find the
trial court had sufficient grounds to find that Respondent had
failed to make reasonable progress in correcting the conditions
which led to the removal of N.L.P.
In sum, the evidence supports the trial court's determination
that “[R]espondent has struggled valiantly, but despite her efforts
and the efforts made by the Davidson County Department of Social
Services and numerous other agencies to assist her the [trial
court] does not find that said [R]espondent can provide for[N.L.P.]'s need for safety, continuity and permanence.”
Accordingly, we affirm the trial court's findings of fact and
conclusion that Respondent willfully left the child in foster care
or placement outside the home for more than twelve months without
showing to the satisfaction of the court that reasonable progress
under the circumstances has been made within twelve months in
correcting those conditions which led to the removal of the child.
II.
Respondent next argues the trial court committed reversible
error in delaying the entry of the order in this case beyond the
statutory requirement of thirty days after the hearing. We
disagree.
Section 7B-1110(a) of the North Carolina General Statutes
(2003) states in pertinent part that “[a]ny order shall be reduced
to writing, signed, and entered no later than 30 days following the
completion of the hearing . . . .” However, in
In re C.J.B., this
Court reasoned that a violation of the thirty-day entry requirement
was not
per se a ground for reversing an order. 171 N.C. App. 132,
614 S.E.2d 368 (2005).
Our Court has never held that entry of the
written order outside the thirty-day time
limitations expressed in sections 7B-1109 and
7B-1110 was reversible error absent a showing
of prejudice. To the contrary, we have held
that prejudice must be shown before the late
entry will be deemed reversible error.
Id. at 134, 614 S.E.2d at
369 (citations omitted).
In
C.J.B. there was
a five month delay between the conclusion
of a termination of parental rights hearing and the entry of awritten order terminating parental rights; this Court held that
the delay amounted to an adequate showing of prejudice and
accordingly reversed and remanded the order.
Id.;
see also, In re
O.S.W., _ N.C. App. _, 623 S.E.2d 349 (2006);
In re L.E.B., 169
N.C. App. 375, 610 S.E.2d 424 (2005). However, in
In re J.L.K.,
this Court held that a nearly three month delay between the end of
a hearing to terminate parental rights and the entry of a written
order was not
per se prejudicial where the trial court announced
its judgment at the conclusion of the hearing. 165 N.C. App. 311,
598 S.E.2d 387 (2004).
Here, the hearing to terminate Respondent's parental rights
ended on 17 February 2005. The order granting Petitioner's request
to terminate Respondent's parental rights was announced at the
conclusion of the hearing but was not reduced to writing and
entered until 6 May 2005, almost three months later. While the
trial court's failure to file the termination order within the
statutory thirty-day period was error, we hold the error was not
prejudicial.
We have reviewed Respondent's remaining arguments and find
them to be without merit.
Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
Footnote: 1