Appeal by respondent from an order entered 27 October 2006 by
Judge Kevin M. Bridges in Stanly County District Court. Heard in
the Court of Appeals 4 June 2007.
Mark T. Lowder for petitioner-appellee Stanly County
Department of Social Services; Vita Pastorini for appellee
Guardian ad Litem.
Janet K. Ledbetter for respondent-appellant.
HUNTER, Judge.
Donna S. (“respondent-mother”) appeals the termination of her
parental rights as to C.M.S. After careful consideration, we
affirm.
At the age of five, C.M.S. lived with respondent-mother and
respondent-mother's boyfriend, Roger Jernigan, Jr. (“Jernigan”).
During her time living with them, on 11 February 2004, the evidence
presented at the hearing tended to show the following: C.M.S.
witnessed an incident wherein respondent-mother held a gun to
someone's head and Jernigan stabbed two men. During the course of
this incident, C.M.S. was injured when she was struck in the head
by a third party with the butt of a gun. As a result of this
affray, C.M.S. was taken into the custody of Stanly County
Department of Social Services (“DSS”) and placed in the Christian
Foster Home where she remains to date. A trial court adjudicated
C.M.S. abused and neglected on 8 July 2004.
After being placed in the foster home, C.M.S. disclosed to
Stacey McCroskey (“McCroskey”), a DSS social worker, acts of sexual
abuse committed by Jernigan against her. The acts included holding
C.M.S. down, kissing her genitalia, kissing her on the mouth,
inserting his tongue in her mouth, kissing her buttocks while she
was undressed, and placing his finger inside her vagina. C.M.S.
also had scarring in her vagina and notching to her hymenal ring
consistent with sexual abuse.
On 29 October 2004, a second petition was filed by DSS
alleging sexual abuse of C.M.S. by Jernigan. C.M.S. testified at
this hearing regarding the acts by Jernigan. Dr. Conroy, whoconducted the physical examination on C.M.S., corroborated much of
C.M.S.'s testimony. C.M.S. also testified that she had informed
respondent-mother about the sexual abuse, and that respondent-
mother failed to protect her from those acts. On 14 July 2005,
C.M.S. was adjudicated abused by the trial court for a second time.
On 18 November 2004, respondent-mother entered into an out-of-
home family service agreement in which she agreed to: (1) locate
appropriate, safe housing; (2) have a stable source of income
adequate to meet all needs; (3) provide proof the utility and rent
bills are being met each month; (4) have no contact with Jernigan;
(5) allow no contact between Jernigan and C.M.S. and have no
conversations with C.M.S. about Jernigan; (6) complete a series of
parenting classes; (7) participate in anger management treatment
and follow through with any recommended medication and therapy
programs; (8) maintain regular contact with McCroskey; and (9) have
regular supervised weekly visitation with C.M.S. An additional
out-of-home family services agreement was entered into by
respondent-mother on 11 February 2006 that again barred contact
between her and Jernigan and required her to complete a
psychological evaluation.
At the permanency planning hearing held on 3 March 2005, the
trial court found that respondent-mother had made some progress
toward achieving the permanent plan of reunification. On 14 July
2005, however, C.M.S. was adjudicated an abused juvenile because
respondent-mother failed to supervise and stop the sexual abuse by
Jernigan. On 15 December 2005, the trial court entered an order changing
C.M.S.'s permanent plan from reunification with respondent-mother
to adoption and ordered DSS to file a petition terminating
respondent-mother's parental rights. Respondent-mother's parental
rights were terminated on 27 October 2006 after a five day hearing.
The findings made by the trial court relative to the disposition of
this appeal are discussed below.
Respondent-mother presents, in essence, two issues for this
Court's review: (1) whether Title II of the Americans with
Disabilities Act (“ADA” or “Act”) precludes the state from
terminating appellant's parental rights, and (2) whether the trial
court's findings of fact were supported by competent evidence.
This Court's review of a trial court's order terminating
parental rights involves two inquiries: Whether the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence, and whether those findings support its conclusions of
law. In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86
(1996). A finding by the trial court of any one of the grounds
enumerated in N.C. Gen. Stat. § 7B-1111 is sufficient to support an
order of termination. In re Taylor, 97 N.C. App. 57, 64, 387
S.E.2d 230, 233-34 (1990).
I.
[1] Respondent-mother first argues the ADA precludes the State
from terminating her parental rights because she is mentally
retarded. This is an issue of first impression for this Court, and
after careful review we hold that the ADA does not prevent thetermination of parental rights in the instant case. The ADA
provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity.” 42 USCS § 12132 (2003).
In this case, respondent-mother argues that the ADA requires
the state to make reasonable accommodations and provide services to
assist a person with mental retardation to exercise their
constitutionally protected parental rights. A similar argument was
advanced in
In re Terry, 610 N.W.2d 563, 569 (Mich. Ct. App. 2000).
While the
In re Terry court first concluded that “mental
retardation is a 'disability' within the meaning of the ADA,” it
then agreed with the “[s]everal courts [that] have concluded that
termination proceedings are not 'services, programs or activities'
under the ADA, and the ADA does not apply in termination
proceedings as a defense to the termination of parental rights.”
Id. (citing 28 C.F.R. 35.104;
In re Antony B., 735 A.2d 893, 899
(Conn. App. Ct. 1999);
State in Interest of B.K.F., 704 So.2d 314,
317-18 (La. Ct. App. 1997);
In re B.S., 693 A.2d 716, 720 (Vt.
1997);
Stone v. Daviess Co. Div. Child Serv., 656 N.E.2d 824, 829-
30 (Ind. Ct. App. 1995);
In Interest of Torrance P., 522 N.W.2d
243, 245 (Wis. Ct. App. 1994));
see also People ex rel. v. T.B., 12
P.3d 1221, 1223 (Colo. Ct. App. 2000). Accordingly, the
In re
Terry court held that “a parent may not raise violations of the ADAas a defense to termination of parental rights proceedings.”
In re
Terry, 610 N.W.2d at 570.
The majority of jurisdictions have adopted the following
reasoning for this rule: “Congress enacted the ADA to eliminate
discrimination against people with disabilities and to create
causes of action for qualified people who have faced
discrimination.
See 42 U.S.C. § 12101(b). Congress did not intend
to change the obligations imposed by unrelated statutes.”
In re
Torrance P., 522 N.W.2d at 246;
see also Stone, 656 N.E.2d at 829-
30;
In re B.S., 693 A.2d at 720;
In re Anthony P., 101 Cal. Rptr.
2d 423, 425 (Cal. Ct. App. 2000) (noting that an all-states search
for authority as to this issue established complete agreement
amongst the jurisdictions that termination proceedings are not
services, programs, or activities within the meaning of title II of
the ADA). We agree with the majority of jurisdictions and adopt
this rule of law.
The
In re Terry court, however, did hold that Michigan's
Family Independence Agency (“FIA”) must comply with the ADA.
In re
Terry, 610 N.W.2d at 570. Under Michigan law, a “court must
determine whether the FIA has made 'reasonable efforts' to rectify
the conditions that led to its involvement in the case.”
Id. This
requirement, the court held, put FIA in compliance with the ADA's
directive that disabilities be reasonably accommodated. Similarly,
our state requires that “[a]ny order placing or continuing the
placement of a child in the custody of the department of social
services must include findings that the department of socialservices 'has made reasonable efforts to prevent or eliminate the
need for placement of the juvenile.'”
In re Dula, 143 N.C. App.
16, 19, 544 S.E.2d 591, 593 (2001) (quoting N.C. Gen. Stat. §
7B-507(a)(2) (1999)). The court made such a finding in this case.
Thus, the ADA does not prevent the state from terminating
respondent-mother's parental rights in this case. Respondent-
mother's assignment or error as to this issue is overruled.
II.
[2] The trial court terminated respondent-mother's parental
rights on grounds found in N.C. Gen. Stat. § 7B-1111(a)(1), (a)(2),
and (a)(6). Under N.C. Gen. Stat. § 7B-1111(a)(1) (2005), parental
rights may be terminated when a trial court finds that “[t]he
parent has abused or neglected the juvenile.”
Id. Under N.C. Gen.
Stat. § 7B-1111(a)(2), rights may be terminated upon a finding that
“[t]he parent has willfully left the juvenile in foster care or
placement outside the home for more than 12 months without showing
. . . that reasonable progress under the circumstances has been
made in correcting those conditions which led to the removal of the
juvenile.” This finding may not be made, however, solely because
the parent was impoverished.
Id. Under N.C. Gen. Stat. § 7B-
1111(a)(6), the trial court may terminate parental rights upon a
finding “[t]hat the parent is incapable of providing for the proper
care and supervision of the juvenile” and will be unable to do so
in the foreseeable future because of,
inter alia, mental illness or
mental retardation.
Id. Respondent-mother challenges nearly every finding of fact made
by the trial court in reaching its decision to terminate her
parental rights under the three statutes referenced above. As
previously stated, however, a finding by the trial court of any one
of the grounds enumerated in N.C. Gen. Stat. § 7B-1111 is
sufficient to support an order of termination so long as that
conclusion of law is supported by findings of fact which are in
turn supported by clear, cogent, and convincing evidence.
In re
Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34;
In re Allred, 122
N.C. App. at 565, 471 S.E.2d at 86. Because we find that the trial
court made sufficient findings of fact which were supported by
clear, cogent, and convincing evidence as to N.C. Gen. Stat. §
7B-1111(a)(2), we limit our discussion to that issue.
N.C. Gen. Stat. § 7B-1111(a)(2) permits termination of
parental rights if the “parent has willfully left the juvenile in
foster care . . . 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.”
Id. To terminate rights on
this ground, the court must determine two things: (1) whether the
parent willfully left the child in foster care for more than twelve
months, and if so, (2) whether the parent has not made reasonable
progress in correcting the conditions that led to the removal of
the child from the home.
In re O.C. & O.B., 171 N.C. App. 457,
464-65, 615 S.E.2d 391, 396,
disc. review denied, 360 N.C. 64, 623
S.E.2d 587 (2005). “A finding of willfulness 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). Voluntarily leaving a child in foster care
for more than twelve months or a failure to be responsive to the
efforts of DSS are sufficient grounds to find willfulness.
Id. at
440, 473 S.E.2d at 398. Similarly, a parent's prolonged inability
to improve his or her situation, despite some efforts and good
intentions, will support a conclusion of lack of reasonable
progress.
In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89,
93 (2004).
In the instant case, findings of fact nos. 18, 34, 49, 50, 51,
52, 53, 56, and 57 all relate to a finding of willfulness and/or
reasonable progress. Respondent-mother challenges each of these
findings of fact on the grounds that they are not supported by
clear, cogent, and convincing evidence.
At the outset we note that the trial court made a conclusion
of law that respondent-mother had willfully left C.M.S. in foster
care for more than twelve months without showing reasonable
progress in correcting those conditions that led to the child's
placement in foster care. We further note that this conclusion of
law is adequately supported by findings of fact. Specifically, the
trial court found that C.M.S. had been in custody of DSS since 13
February 2004 through 27 October 2006, the date of the termination
proceeding. This satisfies the twelve month requirement in N.C.
Gen. Stat. § 7B-1111(a)(2). As to whether the mother made
reasonable progress, the trial court found: 34. That the Respondent biological
mother has been certified as a member of the
Willie M. Class, and has a longstanding
pattern of impulsive and rebellious behavior.
That she has been diagnosed with Intermittent
Explosive Disorder and
has failed to follow
through with treatment or benefit from any
such treatment provided.
. . .
52. . . . That the Respondent biological
mother has not acquired, provided or
maintained a stable home or residence for
placement of the Juvenile, and has failed to
complete said activity as addressed in the
. . . Out of Home Family Services Agreement.
(See footnote 1)
. . .
56. That since the removal on the
Juvenile from her custody of February 13,
2004, the Respondent biological mother has
attended four (4) different mental health care
centers . . . to receive mental health
treatment and to Court ordered anger
management and parenting classes. That the
Respondent biological mother has not completed
or been discharged from a mental health care
center's recommended therapy, or from Court
ordered anger management treatment and
parenting classes. That the Respondent
biological mother has failed to complete
mental health care treatment, specifically
individual counseling, group counseling, anger
management treatment and parenting classes,
has failed to offer any reason to this Court,
at any point in time, for her failure to
complete this mental health care treatment,
and has failed to complete said activity as
addressed in the aforementioned Out of Home
Family Services Agreement.
(Emphasis added.) Finally, in finding of fact no. 57, the trial
court concluded that respondent-mother has the capabilities to
correct the conditions that led to the removal of C.M.S. but haswillfully failed to do so. Having determined that the trial
court's conclusion of law relating to willful abandonment is
supported by the findings of fact we may now turn to respondent-
mother's argument: That the findings of fact are not supported by
clear, cogent, and convincing evidence. We disagree.
Evidence presented at the termination hearing included
McCroskey's testimony that the court relieved DSS from
reunification efforts with respondent-mother on 15 December 2005,
but that she had been involved with the case since its inception on
13 February 2004. McCroskey had supervised C.M.S. while she was in
foster care and had developed all of the family services case plans
with respondent-mother with the goal and objective of creating a
safe home environment for C.M.S. McCroskey testified further that
the behaviors respondent-mother needed to address prior to
regaining custody of C.M.S. were her explosive behaviors and her
need to display appropriate parenting skills. McCroskey also
testified that she explained every item of the family services case
plan to respondent-mother in such a way so that it would be easy to
understand, and that respondent-mother was informed that she could
call McCroskey anytime should she need clarification of the
services being provided to her. In summation, McCroskey made a
notation on 14 October 2005 that respondent-mother had completed
the forensic psychological exam, but she had failed to follow
through with any of the other activities regarding parenting,
therapy, anger management, or medication management. We hold this
to be clear, cogent, and convincing evidence that respondent-motherviolated N.C. Gen. Stat. § 7B-1111(a)(2). Accordingly, we reject
respondent-mother's assignments of error as to this issue.
III.
In summary, we hold that the ADA does not bar this state from
terminating respondent-mother's parental rights in this case and
that the trial court did not err in terminating respondent-mother's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). We
have reviewed respondent-mother's remaining arguments and find them
to be without merit.
Affirmed.
Chief Judge MARTIN and Judge BRYANT concur.
Footnote: 1