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1. Termination of Parental Rights_notice_findings_reasoned decision
The termination of a father's parental rights was affirmed. Although respondent appealed
the termination on lack of notice and assigned error to most of the findings, he did not cite any
particular assignments of error in his brief. Those assignments of error are abandoned, the
findings are conclusive, and the extent of the findings indicate a reasoned decision.
2. Termination of Parental Rights_late written order_oral rendition presumed correct
A mother whose parental rights were terminated was not prejudiced by the trial court's
pattern of entering orders late, which she contended inhibited her efforts to complete her case
plan. There was no transcript of the hearing, and it is presumed that the court's oral rendition of
its order stated everything found in the subsequent written order.
3. Termination of Parental Rights_family reunification efforts_housing and
transportation
The trial court did not violate the Federal Adoption and Safe Families Act in the provision
of services for the reunification of the family where respondent contended that she was unable to
overcome her poverty to meet the goals set by DSS, specifically in transportation and housing.
DSS provided foster care services, and nowhere is it stated that DSS must provide housing aid
and permanent transportation. In fact, case law appears to reach the opposite conclusion.
4. Termination of Parental Rights_wilfully leaving children in foster care_findings and
conclusions
The trial court properly exercised its discretion in terminating respondent mother's
parental rights upon findings and conclusions that respondent had willfully left her children in
foster care without making reasonable progress to correct the conditions which led to their
placement.
J. Tyrone Browder, for Stokes County Department of Social
Services, petitioner-appellee.
Pamela N. Williams, for Guardian ad Litem.
Charlotte Gail Blake, for respondent-appellant father.
Richard E. Jester, for respondent-appellant mother.
JACKSON, Judge.
Respondent father
, M.B., appeals from an order terminating his
parental rights
to the minor child A.R.H.B. Respondent mother,
S.L.H., appeals from an order terminating her parental rights
to
both minor children, A.R.H.B. and C.C.H.L.
The father of minor
child C.C.H.L. has not appealed the termination of his parental
rights.
The Stokes County Department of Social Services (“DSS”)
obtained non-secure custody
of the minor children 16 March 2005,
after filing a petition alleging that they were dependent and
neglected juveniles as defined by North Carolina General Statutes,
section 7B-101(9) and (15). DSS had been called to the children's
residence where they were found in the care of their maternal
grandmother. The grandmother and her boyfriend were intoxicated
and were suspected of engaging in domestic violence in the home.
There were also allegations that C.C.H.L., fourteen, had been
allowed to have sex with her boyfriend, eighteen, who also lived in
the house. Respondent mother had moved to Florida and left the
children in her mother's care while she sought to establish a home
there. The whereabouts of both fathers were unknown.
After returning to North Carolina, respondent mother entered
into a reunification plan on 7 July 2005 as to both children.
Under these plans, she was required to (1) submit to a substance
abuse assessment and follow all recommendations; (2) submit torandom drug testing; (3) make an appropriate plan for the children
should she choose to drink to the point of intoxication; (4)
complete parenting classes and demonstrate an ability to
appropriately parent and supervise the children and follow
recommendations; (5) meet with a social worker one time per month
and call one time per month to report any progress; (6) pay an
appropriate amount of child support for the children; (7) obtain
and maintain employment to be able to provide for the children's
basic needs; and (8) obtain and maintain a safe and stable home.
On 2 August 2005, the trial court adjudicated the children
neglected and dependent. The disposition order was not entered
until 21 December 2005.
Respondent father eventually was located at Kershaw
Correctional Institution in Kershaw, South Carolina, where he was
sent notice of a permanency planning hearing concerning A.R.H.B.
scheduled for 14 March 2006. Respondent father subsequently was
transferred to another facility, where he actually received the
notice in late February or early March 2006. In response, he
mailed a letter on 6 March 2006 to the presiding judge in which he
stated that he was due to be released 1 May 2006 and questioned his
paternity. He sought a continuance so that he could attend the
hearing, hire an attorney, and determine paternity. The 14 March
2006 hearing was held as scheduled in respondent father's absence,
with the court concluding that the filing of a termination petition
or motion in the cause was not in the children's best interest
because respondent mother was still determined to address substanceabuse through treatment. The order was not signed until 27 June
2006.
After the 14 March 2006 hearing, but before the order was
signed, DSS filed motions for termination of parental rights as to
both children on 17 April 2006. Respondent father was served with
notice of the termination hearing pursuant to North Carolina
General Statutes, section 7B-1106.1 on 21 April 2006. Such notice
stated that the date, time, and place of hearing would be mailed
thirty days from the date of service of said notice if no response
was filed. Respondent father filed no response. A guardian ad
litem for the termination was appointed for respondent father “or
any/all unknown father” on 21 September 2006. The termination
hearing was continued several times, but eventually scheduled for
22 February 2007. Notice of calendaring was served on respondent
father's guardian ad litem on 2 February 2007.
Paternity testing was initiated by DSS in late 2006.
Respondent father was determined to be A.R.H.B.'s biological father
on 12 February 2007. The guardian ad litem moved the court to
continue the case to allow respondent father to be in attendance
and prepare an answer, because of the recent determination that he
was the child's father. The court denied the motion because
respondent father had been served with notice of the termination
hearing, received a copy of the motion for termination, and had
never filed an answer or other responsive pleading at any time
prior to the hearing. At the time of the termination hearing,
respondent father was again incarcerated in South Carolina. The court found that sufficient grounds existed to terminate
the parental rights of respondent father in that he had not, prior
to the filing of the motion, (1) established paternity judicially
or by affidavit filed in a central registry; (2) legitimated
A.R.H.B. pursuant to North Carolina General Statutes, section 49-10
or filed a petition for this purpose; (3) legitimated A.R.H.B. by
marrying [respondent] mother; or (4) provided substantial financial
support or consistent care to A.R.H.B. and her mother.
The court found that sufficient grounds existed to terminate
the parental rights of respondent mother in that: (1) she had
neglected the children within the meaning of North Carolina General
Statutes, sections 7B-1111(a)(1) and 7B-101; (2) she had willfully
left the children in foster care for more than twelve months
without showing reasonable progress; and (3) she was incapable of
providing for the proper care and supervision of the children, and
there was a reasonable probability that such incapability will
continue for the foreseeable future.
A dispositional hearing was held 21 March 2007, at which time
the court concluded it was in the best interest of both minor
children that parental rights be terminated.
[1] Respondent father appeals the termination of his parental
rights solely on the basis of lack of notice. We find his argument
to be without merit.
Parental rights are terminated in a two-step process:
adjudication of grounds for termination, and disposition. In reNesbitt, 147 N.C. App. 349, 351, 555 S.E.2d 659, 661 (2001). In
the adjudicatory phase, this Court determines whether the trial
court's findings of fact are supported by clear, cogent, and
convincing evidence, and whether these findings support its
conclusions of law. Id. “If unchallenged on appeal, findings of
fact 'are deemed supported by competent evidence' and are binding
upon this Court.” In re J.M.W., E.S.J.W., 179 N.C. App. 788, 792,
635 S.E.2d 916, 919 (2006) (quoting In re Padgett, 156 N.C. App.
644, 648, 577 S.E.2d 337, 340 (2003)).
Here, the trial court made the following findings of fact,
which respondent father has not challenged and, therefore, are
binding upon this Court:
2. The Motion to Terminate Parental Rights
was filed on April 17, 2006.
. . . .
4. [Respondent father] was personally served
with Notice in Proceeding for Termination of
Parental Rights and a copy of the Motion for
Termination of Parental Rights by certified
mail on April 21, 2006.
5. [Respondent father] did not file an Answer
or other responsive pleading to the Motion for
Termination of Parental Rights . . . .
. . . .
8. Attorney Don George was appointed as
Guardian ad Litem for any and all unknown
fathers of the juvenile on September 21, 2006.
. . . .
14. Don George, Guardian ad Litem for the
unknown father, made a motion in open court
requesting that the Court either dismiss the
case with respect to the respondent father or
continue the case to allow the respondentfather to be in attendance or to prepare an
answer in the case, based on the fact that the
respondent had just been determined to be the
father approximately one week prior to the
adjudication hearing. Said motion to dismiss
was also renewed at the close of the evidence.
The Court denied both motions based on the
fact that the respondent father was duly
served with Notice in Proceeding for
Termination of Parental Rights and a copy of
the Motion for Termination of Parental Rights,
and failed to file an answer or other
responsive pleading at any time prior to the
adjudication hearing.
. . . .
39. [Respondent] father of the juvenile knew
that [respondent] mother was pregnant with his
child however he was in prison on the date of
the birth of the juvenile. After the birth of
the juvenile [respondent] father visited with
[respondent] mother and juvenile on one
occasion but has never provided any support
for the juvenile.
40. [Respondent] father was in prison on the
date the Motion to Terminate Parental Rights
was filed; however he was released shortly
thereafter and was not incarcerated for a
period of approximately four months. During
said period that [respondent] father was not
incarcerated he made no contact with
[respondent] mother, the juvenile or [DSS].
He also made no request for paternity testing
during said period.
41. [Respondent] father is currently
incarcerated in South Carolina. During the
latter part of 2006 [DSS] initiated paternity
testing for the purpose of confirming that
[respondent father] was the father of the
juvenile. Test results were received in mid-
February 2007 confirming that [respondent
father] is the biological father of the
juvenile.
42. [Respondent] father of the juvenile has
not (i) established paternity judicially or by
affidavit which has been filed in a central
registry maintained by the Department of
Health and Human Services; or (ii) legitimatedthe juvenile pursuant to the provisions of
G.S. 49-10 or filed a petition for this
specific purpose; or (iii) legitimated the
juvenile by marriage to [respondent] mother of
the juvenile; or (iv) provided substantial
financial support or consistent care with
respect to the juvenile and mother.
. . . .
49. [Respondent] father of the juvenile who
was born out of wedlock, has not, prior to the
filing of the motion to terminate parental
rights: [items (i) through (iv) of finding of
fact number 42] all within the meaning of G.S.
[7B-]1111(a)(5) based on Findings of Fact
number[s] 39 through 41.
Although respondent father assigned error to most of these findings
in the record, he has not cited to any of those particular
assignments of error in his brief.
Immediately following each question [presented
in the brief] shall be a reference to the
assignments of error pertinent to the
question, identified by their numbers and by
the pages at which they appear in the printed
record on appeal. Assignments of error not
set out in the appellant's brief, or in
support of which no reason or argument is
stated or authority cited, will be taken as
abandoned.
N.C. R. App. P. 28(b)(6) (2006). Those assignments of error,
therefore, are abandoned and the findings of fact are conclusive on
appeal.
Based upon the foregoing findings of fact, the trial court
concluded as a matter of law that sufficient grounds existed to
terminate respondent father's parental rights, listing the same
reasons stated in finding of fact number 49. North Carolina
General Statutes, section 7B-1111 sets out the grounds forterminating parental rights. Under that section, parental rights
may be terminated upon a finding that:
The father of a juvenile born out of wedlock
has not, prior to the filing of a petition or
motion to terminate parental rights:
a. Established paternity judicially or by
affidavit which has been filed in a central
registry maintained by the Department of
Health and Human Services; provided, the court
shall inquire of the Department of Health and
Human Services as to whether such an affidavit
has been so filed and shall incorporate into
the case record the Department's certified
reply; or
b. Legitimated the juvenile pursuant to
provisions of G.S. 49-10 or filed a petition
for this specific purpose; or
c. Legitimated the juvenile by marriage to the
mother of the juvenile; or
d. Provided substantial financial support or
consistent care with respect to the juvenile
and mother.
N.C. Gen. Stat. § 7B-1111(a)(5) (2005) (emphasis added).
As with findings of fact, “[t]he appellant must assign error
to each conclusion it believes is not supported by the evidence.
Failure to do so constitutes an acceptance of the conclusion and a
waiver of the right to challenge said conclusion as unsupported by
the facts.” Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112,
516 S.E.2d 647, 649 (1999) (internal citations omitted).
Respondent father failed to cite in his brief an assignment of
error challenging the trial court's conclusion that grounds exist
to terminate his parental rights.
Moreover, the trial court's findings support its conclusion
that prior to 17 April 2006, the date the Motion to TerminateParental Rights was filed, respondent father had not established
paternity, legitimated the child by statute or marriage, nor had he
provided substantial financial support. Paternity was established
by DSS shortly before the hearing _ nearly ten months after the
motion was filed. The child never was legitimated by respondent
father and he visited the child only once and never provided any
support.
After finding that grounds for termination exist, the trial
court moves to the disposition phase. In re Nesbitt, 147 N.C. App.
at 352, 555 S.E.2d at 662. Having found grounds for termination,
the trial court does not automatically terminate parental rights.
Id. If the trial court finds that it would be in the child's best
interest, it has discretion to terminate parental rights. Id.
This decision is reviewed by this Court on an abuse of discretion
standard. Id. The decision to terminate parental rights will not
be overturned on appeal absent a showing that the decision was
manifestly unsupported by reason. In re J.A.A., 175 N.C. App. 66,
75, 623 S.E.2d 45, 51 (2005).
The extent of the trial court's findings evidences a reasoned
decision; therefore, we affirm the termination of respondent
father's parental rights to A.R.H.B.
[2] Respondent mother first argues that the trial court's
pattern of entering orders late prejudiced her in her efforts to
complete her case plan, thereby invalidating the order terminating
her parental rights. We disagree. Although adjudicatory and dispositional orders, as well as
review and permanency planning orders, are statutorily required to
be filed within thirty days of the hearing pursuant to North
Carolina General Statutes, sections 7B-807(b), -905(a), -906(d),
and -907(c), “our appellate courts have uniformly applied a
'prejudicial error' analysis to determine whether the subject order
must be reversed.” In re P.L.P., 173 N.C. App. 1, 7, 618 S.E.2d
241, 245 (2005).
Respondent mother argues that the trial court's failure to
enter its disposition order of 2 August 2005 until 21 December 2005
prejudiced her ability to comply with it. She cites In re B.P.,
S.P., R.T., 169 N.C. App. 728, 612 S.E.2d 328 (2005), in support of
her argument. B.P. is distinguishable. In B.P., the order in
question changed the permanent plan for the child. This Court
found prejudice not only because the order was filed six months
after the hearing, but also because the oral rendition failed to
state certain important items. In the six months between the
hearing and entry of the order, the mother was not provided “the
necessary information from which she could prepare for future
proceedings. She had no notice of the particular findings of fact
or conclusions of law upon which the trial court based its
decision.” Id. at 736, 612 S.E.2d at 333.
We have no transcript of the 2 August 2005 hearing. “The
longstanding rule is that there is a presumption in favor of
regularity and correctness in proceedings in the trial court, with
the burden on the appellant to show error.” L. Harvey & Son Co. v.Jarman, 76 N.C. App. 191, 195-96, 333 S.E.2d 47, 50 (1985). Unless
the record reveals otherwise, we presume “that judicial acts and
duties have been duly and regularly performed.” Lovett v. Stone,
239 N.C. 206, 212, 79 S.E.2d 479, 483 (1954). We therefore
presume that the trial court's oral rendition of its order in the
case sub judice stated everything found in the written order. With
respect to respondent mother's obligations under this order, she
was ordered (1) to visit her children in DSS's discretion, (2) to
comply with her existing care plan, and (3) to pay child support.
During the delay between the hearing and entry of the order,
respondent mother (1) visited with her children, (2) worked on her
case plan, and (3) could have paid child support. In addition, she
was present for the review hearings held 27 October and 16 November
2005. Based upon the foregoing, we hold that there was no
prejudice to respondent mother.
[3] Respondent mother next argues that the trial court
violated the Federal Adoption and Safe Families Act because DSS
provided no meaningful services to aid in the reunification of the
family. We disagree.
The Federal Adoption and Safe Families Act (“ASFA”) states:
The State must make reasonable efforts to
maintain the family unit and prevent the
unnecessary removal of a child from his/her
home, as long as the child's safety is
assured. . . . In determining reasonable
efforts to be made with respect to a child and
in making such reasonable efforts, the child's
health and safety must be the State's
paramount concern.
45 C.F.R. 1356.21(b) (2005). Furthermore, ASFA maintains, “[t]he
judicial determinations regarding . . . reasonable efforts to
prevent removal . . . must be explicitly documented and must be
made on a case-by-case basis and so stated in the court order.” 45
C.F.R. 1356.21(d) (2005). Respondent mother argues that because no
meaningful services were provided, she was unable to overcome her
poverty to meet the goals set forth by DSS. However, she readily
concedes that there were services rendered by DSS to aid in the
transition and possible reunification of respondent mother and her
children: (1) foster care services; (2) transportation services;
(3) medicaid; (4) SCAN for parenting classes; and (5) TASC and WISH
for substance abuse treatment. Although aid was given, respondent
mother contends that DSS did not provide adequate transportation
and housing aid and, therefore, did not provide a “reasonable
effort” to reunify the family unit.
“Reasonable efforts” are defined by statute as: “The diligent
use of preventive or reunification services by a department of
social services when a juvenile's remaining at home or returning
home is consistent with achieving a safe, permanent home for the
juvenile within a reasonable period of time.” N.C. Gen. Stat. §
7B-101(18) (2005). In the instant case, DSS provided foster care
services, medicaid, parenting classes, and procured substance abuse
treatment. Nowhere is it stated that DSS must provide housing aid
and permanent transportation. In fact, the case law appears to
reach the opposite conclusion; that having to provide such
fundamental necessities is evidence of instability, therefore,presenting safety and health concerns for the respondent's
children. See In re Brim, 139 N.C. App. 733, 742-43, 535 S.E.2d
367, 372-73 (2000); see also In re Nolen, 117 N.C. App. 693,
696-700, 453 S.E.2d 220, 222-25 (1995).
Accordingly, we hold the efforts made by DSS reasonable and in
compliance with ASFA.
[4] In her final argument, respondent mother challenges
several of the trial court's findings of fact and conclusions of
law as unsupported by the evidence. A termination order will be
upheld on appeal so long as one of the grounds for termination
found by the trial court is supported by clear, cogent and
convincing evidence. See In re Bradshaw, 160 N.C. App. 677,
682-83, 587 S.E.2d 83, 87 (2003). In the case sub judice, the
trial court found three separate grounds existed to terminate
parental rights.
Parental rights may be terminated 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.” N.C. Gen.
Stat. § 7B-1111(a)(2) (2005). Before terminating 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., 171 N.C. App. 457, 464-65, 615S.E.2d 391, 396, disc. rev. 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, notwithstanding 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).
Finding of Fact 17/16,
(See footnote 1)
which is unchallenged and therefore
binding on this Court, states that A.R.H.B. and C.C.H.L. were taken
into DSS custody on 16 March 2005. Finding of Fact 1/1, also
unchallenged, states that the juveniles remained in DSS custody on
the date of hearing, 22 February 2007. This satisfies the twelve-
month requirement in North Carolina General Statutes, section
7B-1111(a)(2).
As to whether respondent mother made reasonable progress, the
trial court found:
20/19. On July 7, 2005 [respondent] mother
signed a Family Services Agreement with [DSS]
under the terms of which [respondent] mother
agreed to [inter alia] obtain a substanceabuse assessment and follow all
recommendations; . . . complete parenting
classes . . . ; obtain and maintain employment
. . . ; obtain and maintain a safe and stable
home; [and] meet with social worker monthly .
. . .
. . . .
22/21. From July 6, 2006 through November 16,
2006 [respondent] mother missed seven out of
eleven appointments . . . and failed to
complete the [substance abuse] treatment
program. [Respondent] mother was finally
discharged from the treatment program November
29, 2006 for noncompliance with TASC program
requirements and treatment recommendations.
. . . .
24/23. During the period from August 2, 2005
through October 3, 2006 [respondent] mother
was requested to take thirteen drug tests.
She refused two tests, tested negative on six
tests, tested positive for marijuana on four
tests, and one test was dilute.
25/24. [Respondent] mother attended parenting
classes from August, 2005 through October 17,
2005 but never successfully completed the
classes due to missing five out of ten
classes. . . .
. . . .
27/26. Since April 2005 through the date of
this hearing [respondent] mother has failed to
establish a residence of her own, but has
lived with friends and relatives in at least
eight different locations. On July 12, 2006
[respondent] mother was living out of a car in
a friend's driveway. [Respondent] mother is
currently living with a male friend.
28/27. During the past two years [respondent]
mother has failed to establish and maintain
any permanent and stable employment. . . .
. . . .
34/33. [Respondent] mother has failed to stay
in contact with [DSS] on a monthly basis. Theonly recent contact that [DSS] has had with
[respondent] mother has been at scheduled
court hearings at which she appeared.
Though all of these findings were challenged on appeal, there is
clear, cogent, and convincing evidence in the record to support
each of them. These findings all go to support the court's
conclusion that respondent mother had willfully left her children
in foster care without making reasonable progress to correct the
conditions which led to their placement. The trial court properly
exercised its discretion in terminating respondent mother's
parental rights upon these findings and conclusions.
We conclude that the court's findings of fact were supported
by clear, cogent, and convincing evidence in the record and that
these findings supported the court's conclusions of law as to both
respondent parents. Based upon the trial court's conclusion that
grounds existed to terminate the parental rights of both parents,
it was in the court's discretion to terminate parental rights in
the best interest of the children. We hold that there was no abuse
of that discretion.
Affirmed.
Judges STEELMAN and STROUD concur.
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