An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-657


Filed: 2 January 2007



                            Randolph County
                            No. 05 J 117

    Appeal by respondent from judgment entered 6 January 2006 by Judge William M. Neely in Randolph County District Court. Heard in the Court of Appeals 7 December 2006.

    David A. Perez, for Randolph County Department of Social Services, petitioner-appellee.

    Parker Poe Adams & Bernstein LLP, by Leigh A. Kite, for Guardian ad Litem.

    Richard Croutharmel, for respondent-mother-appellant.

    JACKSON, Judge.

    Randolph County Department of Social Services (“DSS”) social worker Kelly Lumar (“Lumar”) visited the home of respondent mother (“respondent”) on 14 June 2003 in response to a report that respondent had driven home intoxicated, with a flat tire, and with her two minor children in the vehicle. When Lumar arrived at respondent's home, she found respondent asleep on the couch with her son, while M.D.D. was sitting on the floor still strapped into her car seat. M.D.D., who was born in February 2003, was crying, and respondent did not wake up to either the child's crying or Lumar's repeated knocking on the door. After contacting lawenforcement, Lumar removed M.D.D. and her brother from respondent's custody. Lumar testified that at the time, respondent smelled of alcohol, her speech was slurred, and she walked unsteadily.
    On 14 June 2003, DSS filed a juvenile petition alleging that M.D.D. was a neglected and dependent juvenile. M.D.D. was placed in the physical custody of respondent's aunt. M.D.D. was removed from the aunt's care and placed into foster care due to respondent's having unsupervised contact with M.D.D. On 8 July 2003, respondent picked up M.D.D. from daycare, in violation of the visitation plan. On this same afternoon, a North Carolina State Trooper responded to a report of a hit and run accident, allegedly involving respondent. After investigating the reported accident and finding that respondent's car was the vehicle reportedly involved, the trooper found respondent walking down the street with M.D.D. two hours after the reported accident. Respondent had the smell of alcohol on her breath, had cuts and abrasions on her face consistent with injuries from an air bag being deployed, and she was belligerent and irate towards the trooper. The trooper testified that he was unsure whether respondent had been drinking at the time of the accident, or after the alleged accident. Respondent was charged with a hit and run accident, driving while her license was revoked, following too closely, and leaving the scene of a collision. All charges eventually were dismissed.
    A second juvenile petition alleging neglect was filed on 15 September 2003. On 25 September 2003, M.D.D. was adjudicated a dependent juvenile. Respondent entered into a case plan with DSSin which she agreed to remain clean and sober, submit to random drug screens, follow the recommendations of her substance abuse assessment, obtain and maintain stable housing and employment, attend Narcotics Anonymous (“NA”) and Alcoholics Anonymous (“AA”) meetings three times per week, work towards having her driver's license reinstated, and complete individual counseling to address her substance abuse and anger management issues.
    Over the course of the next two years, respondent tested positive for cocaine twice and marijuana three times, she tested positive for opiates and benzodiazepines twice, she failed to provide verification of attendance at any NA or AA meetings, she failed to maintain stable housing and employment, and she did not fully comply with the recommendations of her substance abuse assessment. Cynthia Westsinger (“Westsinger”), a substance abuse therapist, conducted respondent's substance abuse assessment in July and August 2003. Westsinger recommended respondent submit to random drug screens, and that she participate in outpatient group therapy for a total of sixteen weeks. Respondent completed only twelve or thirteen weeks of therapy, and her file eventually was closed in October 2004 due to non-attendance. Respondent also failed to comply with more than half of DSS' thirty requests for drug screens.
    Following a positive drug screen for marijuana on 1 June 2004, respondent voluntarily entered into a two-week inpatient substance abuse treatment program. She successfully completed the program, however she failed to comply with the follow-up requirements ofindividual counseling. Respondent was officially terminated from the program in January 2005 due to non-participation. Respondent twice attempted to have her file re-opened, however she failed to attend either of the scheduled appointments.
    Respondent gave birth to her third child in February 2005. On 29 March 2005, Trooper Jedediah Frye (“Frye”) responded to a report that respondent had driven while intoxicated with an improperly restrained infant in her vehicle. When Frye arrived at the scene, he smelled a strong odor of alcohol on respondent's breath, and after conducting field sobriety tests, he determined that she was appreciably impaired. The evidence presented at respondent's hearings showed that on 29 March 2005, respondent had been drinking, and that following an argument with her then boyfriend, she got into her car with her newborn child, and drove to the store. As a result of the incident on 29 March 2005, respondent was charged with driving while intoxicated, driving while her license was revoked, and a child restraint violation. At the time of respondent's termination of parental rights hearings, the charges had not yet been resolved.
    Respondent's file with the substance abuse program was re- opened as a result of the charges from the 29 March 2005 incident. On 20 May 2005, respondent had a second substance abuse assessment done, at which time fourteen days of inpatient treatment were recommended, to be followed by intensive outpatient therapy three times per week for a total of twelve hours per week. Respondent failed to comply with any of these recommendations. Instead, inJune 2005, respondent began participating in an outpatient group and individual counseling program which met once per week for a total two and one-half hours per week. While respondent was consistent in her participation and reportedly was making good progress in her therapy, the counseling in which she was participating did not comply with the recommendations of her May 2005 substance abuse assessment.
    On 28 April 2005, DSS filed a petition to terminate respondent's parental rights as to M.D.D. A hearing on the petition was held over the course of six days from October to December 2005. On 6 January 2006, an order was entered terminating respondent's parental rights to M.D.D. The trial court found the following grounds for the termination of respondent's parental rights: (1) respondent had neglected M.D.D.; (2) respondent willfully had left M.D.D. in foster care or placement outside the home for more than twelve months without making reasonable progress under the circumstances to correct the conditions which led to M.D.D.'s removal; and (3) that for at least six months prior to the filing of the termination of parental rights petition, respondent willfully had failed to pay a reasonable portion of the cost of care for M.D.D., although physically and financially able to do so. Upon finding statutory grounds for the termination of respondent's parental rights, the trial court then found that it was in M.D.D.'s best interest that respondent's rights be terminated. Respondent appeals from this order.    Respondent contends the trial court erred in finding and concluding that grounds existed to terminate her parental rights. The trial court concluded that the evidence established three statutory grounds to terminate respondent's parental rights: North Carolina General Statutes, sections 7B-1111(a)(1), (2), and (3) (2005). In three separate assignments of error, respondent asserts the trial court lacked competent evidence to support termination under each of the statutory grounds.
    A termination of parental rights proceeding is conducted in two phases: (1) an adjudication phase that is governed by North Carolina General Statutes, section 7B-1109 (2005); and (2) a disposition phase that is governed by section 7B-1110 (2005). In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
    During the adjudication phase, the petitioner has the burden of proving by clear, cogent, and convincing evidence that statutory grounds for termination exist pursuant to section 7B-1111. N.C. Gen. Stat. § 7B-1109(e), (f) (2005). On appeal, we review the adjudication phase to determine whether trial court's “'findings of fact are based upon clear, cogent and convincing evidence' and whether the 'findings support the conclusions of law.'” In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (quoting In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996)), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
    During the dispositional phase, after concluding that one or more grounds for terminating a parent's rights exist, the trialcourt determines whether terminating the parent's rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B-1110 (2005). Upon a finding that it would be in the best interest of the child to terminate a parent's rights, the trial court has the discretion to terminate parental rights. Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. On appeal, we review the dispositional phase under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
    North Carolina General Statutes, section 7B-1111(a)(2) provides that an individual's parental rights may be terminated upon a finding that:
        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.
N.C. Gen. Stat. § 7B-1111(a)(2) (2005). When the evidence establishes that a parent possesses the ability to make reasonable progress, but is unwilling to make the effort, the parent's “willfulness” in leaving a child in foster care may be established. In re Baker, 158 N.C. App. 491, 494, 581 S.E.2d 144, 146 (2003) (citing In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001)). The willful leaving of the child is “something less than willful abandonment” and “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) (citations omitted). A finding under this groundmay be made even when the parent has made some attempt to regain custody of the child but has failed to show reasonable and positive progress. In re Nolen, 117 N.C. App. 693, 699-700, 453 S.E.2d 220, 224-25 (1995).
    In the instant case, the trial court made the following detailed findings of fact in support of its conclusion to terminate respondent's parental rights under section 7B-1111(a)(2):
        10. b) Both Jonie [D.] and Jason [M.] 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. On or about June 14, 2003 the juvenile was removed from the care and custody of the Respondent-Mother . . . due primarily to substance abuse issues involving the Respondent-Mother . . . . The Respondent- Mother, after June 14, 2003, failed to timely avail herself of services available to her in order to remedy the conditions which led to the juvenile's removal . . .; Respondent- Mother did not begin to seriously address her substance abuse issues, the primary cause of the removal of the juvenile from her care, until the Summer of 2005 . . . . The Respondent-Mother's willful failure to comply with the directives of the Court designed to address her substance abuse and stability issues . . . caused the delay of any return of the minor child to the care and custody of the Respondent-Mother. The Respondent-Mother is presently not in a position to safely care for the juvenile due to her long delay in beginning to seriously address her substance abuse and stability issues.

        . . . .

        h) . . . . Respondent-Mother was ordered, at disposition, to submit to urine or hair sample drug screens, at the request of RCDSS. From September 25, 2003 through the termination hearing, Respondent-Mother was requested bysocial worker Dana Nance to submit to approximately 30 drug screens, but she only complied with 12 such requests . . . . The drug screens requested by Ms. Herb have been positive for opiates on several occasions, and positive once for benzodiazepines; the testing utilized in these drug screens does not specify the quantity of the substance being tested for, only its presence. Respondent-Mother had prescriptions for an opiate, which caused Ms. Herb to have no concerns as to the opiate positive drug screen results. Respondent-Mother stated to Ms. Herb and Ms. Hall that the benzodiazepine positive result occurred because Respondent-Mother underwent a medical procedure requiring her use of a benzodiazepine; Respondent-Mother, however, did not provide documentation as to this account though both Ms. Herb and Ms. Hall requested the same. . . . Of 14 drug screens involving Respondent-Mother which occurred as a result of Ms. [Westsinger's] requests, between the dates of June 18, 2003 and April 25, 2005, Respondent-Mother tested positive for cocaine on 2 occasions (on August 20, 2003 and November 26, 2003), positive for marijuana on 3 occasions (August 20, 2003, November 26, 2003 and June 1, 2004), and positive for benzodiazepines on 1 occasion (April 25, 2005); Respondent-Mother stated to Ms. [Westsinger] on this final occasion that she had been prescribed medication which caused the positive result for benzodiazepines, but this information was not verified. On or about May 20, 2005 Respondent-Mother tested positive for opiates and benzodiazepines, upon the request for a drug screen by substance abuse counselor Nikki Martinez. Respondent-Mother denied using opiates within a month of this drug screen, which was inaccurate, as the opiates would not have registered on the drug screen unless they had been used within 72 hours of the drug screen.

        . . . .

        l) Cynthia [Westsinger], a substance abuse therapist, completed a substance abuse assessment regarding the Respondent-Mother on or about June 18, 2003, which was revised on or about August 1, 2003 . . . . Ms. [Westsinger] recommended that the Respondent-Mother complete 16 weeks of outpatient group therapy. The Respondent-Mother did not complete the group therapy which had been recommended. In June 2004 Respondent-Mother requested to be allowed to attend inpatient treatment, and she was admitted to an inpatient facility in Butner, North Carolina and completed a 2 week program. . . . Respondent-Mother did not thereafter contact Ms. [Westsinger] for reinstatement into group therapy until approximately January 5, 2005; Respondent-Mother, however, failed to appear for her scheduled appointment at that time, and her treatment was terminated by Ms. [Westsinger] on or about January 20, 2005. On or about February 11, 2005 Respondent-Mother scheduled another intake appointment, but again failed to show. On or about March 3, 2005 Respondent-Mother did appear for an intake appointment and based upon her self-report, no substance abuse treatment was recommended at that time. However, on or about April 25, 2005 another intake appointment occurred, based upon a DWI charge Respondent-Mother had incurred as a result of events on or about March 30, 2005. . . . Respondent-Mother did not stay sufficiently involved in active substance abuse treatment such as to properly address her substance abuse issues; the Respondent-Mother never successfully completed the outpatient treatment that Ms. [Westsinger] had recommended . . . .

        m) On or about March 30, 2005, the Respondent-Mother, after being involved in an argument with her then boyfriend, . . . consumed alcohol in a sufficient quantity so as to appreciably impair her bodily functions and mental capacities, and then drove a motor vehicle to another location. A minor infant sibling of the juvenile who is the subject of this action was present and unrestrained in the vehicle on March 30 when the Respondent-Mother drove impaired; the minor child was in a car seat, but the car seat was not secured to the vehicle. . . . A grossly aggravating factor on this occasion was the presence of the minor child in the vehicle while the Respondent-Mother drove intoxicated; an aggravating factor was the minor child not being properly retrained in a car seat. Fieldsobriety tests were administered to the Respondent-Mother, which she failed to properly complete. The Respondent-Mother was requested to submit to a breathalyzer test, but she declined to do so.

        . . . .

        o) . . . . Respondent-Mother has not sufficiently addressed her substance abuse issues, with the result being that the juvenile would be subjected to a probability of a repetition of neglect by the Respondent-Mother if the juvenile were to be returned to the Respondent-Mother at the present time. Respondent-Mother, as shown by her actions, did not begin to seriously address her substance abuse issues until June of this year, after the termination petition herein had been filed, and, as such, is not presently in a position where she can safely provide for the care of the juvenile. Any failure by Respondent-Mother to engage in further substance abuse treatment with Ms. Herb or another therapist, which might well occur based upon the past history of Respondent-Mother as to inconsistency in participation in treatment services, would expose the juvenile to grave risks, as Respondent-Mother, when she relapses and abuses substances, has shown an inevitable pattern of placing her children in extreme risk of injury or death.
The trial court also found that since September 2003, respondent failed to verify attendance at any NA or AA meetings, although she was ordered to attend at least three meetings per week, and respondent had lived in six separate residences, and had been employed in four separate jobs, with two periods of unemployment lasting six to eight months each. At the time of the termination of parental rights hearings, respondent still did not possess a valid driver's license, although there was evidence presentedindicating that she had driven several times while her license was revoked.
    The hearing on the termination of respondent's parental rights lasted for six days, and included extensive testimony from all of respondent's social workers, therapists, and the various law enforcement officers who had encountered respondent during her alleged incidents of driving while intoxicated. The evidence presented indicated that respondent verbally entered into several case plans with DSS and was ordered by the trial court to maintain stable employment and housing, attend NA and AA meetings, comply with all recommendations from her substance abuse assessments, submit to random urine and hair sample drug screens, attend anger management counseling, and refrain from transporting her children or driving herself without a valid driver's license. In the two and one-half years in which M.D.D. was in the custody of DSS, respondent failed to maintain stable housing and employment. While she began regularly participating in substance abuse counseling in June 2005, she failed to participate in counseling on a consistent basis for the two years prior. She repeatedly failed to perform the drug screens as requested by DSS, and she tested positive for illegal drugs on several occasions. The evidence indicated several instances in which respondent cared for her children while under the influence of alcohol, including the incident on 29 March 2005 in which she drove while intoxicated with M.D.D.'s newborn sibling improperly restrained in the vehicle. Respondent failed to verify that she had attended any NA or AA meetings, and while she didbegin to attend anger management counseling, she attended only two sessions before ceasing her attendance.
    Respondent contends that her failure to make reasonable progress was not “willful” and instead was due to her substance abuse issues and its effect on her ability to make progress. We do not find respondent's contention persuasive. Respondent's actions during the two and one-half years show that she had the ability to obtain employment, to actively participate in substance abuse counseling, and that she recognized that she had a substance abuse problem. However, respondent made the decision not to comply with DSS' and the trial court's orders. Respondent also made the decision not to comply with the recommended substance abuse treatment. While respondent made some progress in the months prior to her termination of parental rights hearings with respect to her substance abuse counseling, we have held that “'[e]xtremely limited progress is not reasonable progress.'” Baker, 158 N.C. App. at 497, 581 S.E.2d at 148 (quoting Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25).
    Therefore, we hold the trial court's determination that respondent willfully failed to make reasonable progress toward correcting the conditions that led to M.D.D.'s removal was supported by clear, cogent, and convincing evidence. Respondent's assignment of error is overruled. “Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground[s] . . . found by the trial court.” In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
    Respondent next contends the trial court erred in determining that it was in M.D.D.'s best interest that her parental rights be terminated, and that the trial court abused its discretion in so ordering.
    Based upon the extensive evidence concerning respondent's failure to make progress in addressing the issues which led to the removal of M.D.D from her custody, we hold the trial court did not abuse its discretion in determining that it was in M.D.D.'s best interest that respondent's parental rights be terminated. The trial court considered the progress made by respondent and the needs of M.D.D. Evidence presented indicated that respondent would need to remain in substance abuse counseling for at least six more months before she would be considered to have thoroughly addressed her substance abuse problems. M.D.D. was in need of permanence, as she had been in the custody of DSS for almost her entire life. Given the trial court's findings and conclusions of respondent's chronic alcohol abuse, as well as its determination that M.D.D. was thriving in a foster home with foster parents who wished to adopt, we cannot conclude that the trial court abused its discretion in terminating respondent's parental rights. Respondent's assignment of error is overruled.
    Judges GEER and LEVINSON concur.
    Report per Rule 30(e).

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