IN THE MATTER OF:
M.D.D.
Randolph County
No. 05 J 117
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her license was revoked, following too closely, and leaving the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.
Affirmed.
Judges GEER and LEVINSON concur.
Report per Rule 30(e).
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