Appeal by Respondents from judgment entered 9 January 2006 by
Judge Marvin P. Pope in District Court, Buncombe County. Heard in
the Court of Appeals 8 January 2007.
Don Willey for Respondent-Appellant A.F.C.
M. Victoria Jayne for Respondent-Appellant J.M.H.
John C. Adams for Petitioner-Appellee Buncombe County
Department of Social Services.
Michael N. Tousey for Guardian ad Litem-Appellee Alice
Respondent-Appellant A.F.C. (the mother) and Respondent-
Appellant J.M.H. (the father) (collectively Respondents) appeal
from the trial court's order terminating their parental rights to
the minor child, J.S.H. We affirm.
The Buncombe County Department of Social Services (DSS)
obtained non-secure custody of J.S.H. on 11 September 2003. The
court entered an adjudication of neglect as to both Respondents on
9 February 2004, continued custody of J.S.H. with DSS, and awarded
supervised visitation to Respondents. Respondents appealed from
the 9 February 2004 order. In an unpublished opinion filed 19 July 2005, In Re: J.S.H,
171 N.C. App. 514, 615 S.E.2d 737 (2005) (COA04-1152)
(unpublished), our Court affirmed the 9 February 2004 order and
adjudication of neglect. Our Court recited the following findings
of fact made by the trial court:
That [the father's] substance abuse assessment
recommended thirty hours of treatment and
AA/NA aftercare. That the father has not
received substance abuse treatment as
previously ordered. He is currently . . .
taking an opiate due to surgery. The Court is
concerned there is a substantial risk of
The father received a $ 50,000.00 workers'
compensation settlement but was unable to
state to the social worker what happened to
that money. Prior to the filing of the
petition the parents were living with family
members and did not have their own residence.
That they hoped to use the $50,000.00
settlement to purchase their own home, but
ultimately could not. That the parties have
been living with [J.M.;] however, that living
situation is now unstable and uncertain.
We upheld the court's adjudication of neglect based on the evidence
of Respondents' previous neglect of a sibling of J.S.H., lack of
stable housing, history of substance abuse, failure to complete
substance abuse treatment, and continued use of opiate-based
While Respondents' appeal was pending, in a review order
entered 28 September 2004, the court relieved DSS of further
efforts to reunify J.S.H. with Respondents "due to the minimal
compliance of [Respondents] with requirements for reunification[.]"
The court changed the permanent plan "to adoption with a concurrent
plan of guardianship with a court-approved caretaker." DSS filed a petition to terminate Respondents' parental rights
on 15 October 2004, alleging the following grounds for termination:
(1) Respondents had neglected J.S.H. and there was a reasonable
probability that such neglect would continue; (2) Respondents
willfully left J.S.H. in her placement outside the home for more
than twelve months without reasonable progress in correcting the
conditions which led to her removal; and (3) the father willfully
failed to pay a reasonable portion of the costs of care for J.S.H.
for a period of six months prior to the filing of the petition.
See N.C. Gen. Stat. § 7B-1111(a)(1)-(3) (2005).
Delay in the Termination Hearing
During the pendency of Respondents' appeal in In re J.S.H.
the court continued to hold review hearings and enter orders in the
N.C. Gen. Stat. § 7B-1003 (2005) (authorizing entry of
"a temporary order affecting the custody or placement of the
juvenile" during an appeal). The court ceased reunification
efforts on 28 September 2004, and changed the permanent plan "to
adoption with a concurrent plan of guardianship with a court-
After DSS filed the petition to terminate Respondents'
parental rights on 15 October 2004, the court delayed its hearing
of the petition based on a line of authority holding that
Respondents' pending appeal in the cause divested the court of
jurisdiction to proceed with termination. See In re J.C.S.
N.C. App. 96, 101-03, 595 S.E.2d 155, 158-59 (2004); In Re Hopkins
163 N.C. App. 38, 42-43, 592 S.E.2d 22, 25 (2004), disc. reviewdenied
, 359 N.C. 632, 616 S.E.2d 230 (2005); but see In re V.L.B.
164 N.C. App. 743, 745, 596 S.E.2d 896, 897 (2004); In re N.B.
N.C. App. 182, 183-84, 592 S.E.2d 597, 598 (2004). Citing this
Court's holding in Hopkins
, the court ordered that "the termination
of parental rights hearing shall be held open until the [Supreme]
Court defines [the scope of the court's jurisdiction during the
pendency of Respondents' appeal] or until the Court of Appeals
rules on the appeal of . . . [Respondents]." In subsequent review
orders, the court found that J.S.H. was "thriving" in her foster
placement and that Respondents had taken no steps to comply with
their case plan and had failed to avail themselves of opportunities
to visit J.S.H. In an order entered 25 May 2005, the court found
that DSS had made a good faith effort to mediate its dispute with
Respondents in April 2005, at which time the parties agreed "that
when [Respondents'] appeal is completed and this case can move
forward to the Termination of Parental Rights that mediation might
be helpful at that time."
The North Carolina Supreme Court filed its opinion in In re
, 359 N.C. 539, 541-42, 614 S.E.2d 489, 491 (2005),
confirming the court's jurisdiction to rule upon DSS's termination
petition notwithstanding the respondent's pending appeal.
(See footnote 1)
Court filed our opinion deciding Respondents' appeal on 19 July
Michael Casterline, counsel for the father, moved to withdrawas counsel on 8 July 2005 in order to undergo a serious medical
procedure. The court appointed Lori Loftis as substitute counsel
for the father on 13 July 2005. DSS filed notice on 12 September
2005 for a hearing to be held on 26 September 2005 on its
termination of parental rights petition.
The court allowed substitute counsel Lori Loftis to withdraw
on 30 September 2005 due to her previous representation of the
Child Support Enforcement Agency in an action against the father
for non-payment of child support. The court re-appointed Michael
Casterline to represent the father.
The mother moved to dismiss the termination petition on 30
September 2005 on the ground that the court had not heard the
petition within ninety days of the 15 October 2004 filing date, as
required by N.C. Gen. Stat. § 7B-1109(a). The mother observed that
350 days had passed since DSS filed the petition without any
finding by the court of "extraordinary circumstances" in support of
continuing the cause beyond the 90-day deadline. See
Stat. § 7B-1109(d) (2005).
After a hearing held 30 September 2005, the court entered a
"Continuance Order" on 24 October 2005, finding as follows:
[Counsel] Loftis informed the court that she
has a conflict of interest in this matter as
she was previously an attorney for the Child
Support Agency and was involved in pursuing
child support from the . . . father. The
court appointed Michael Casterline to
represent the . . . father . . . in the matter
of the termination of parental rights hearing.
. . . [P]ursuant to N.C.G.S. § 7B-1109(b)
extraordinary grounds exist to continue this
termination of parental rights hearing to theNovember 14, 2005 term of court.
The court heard the mother's motion to dismiss on 4 November 2005,
and denied the motion on 23 November 2005. The court found that
DSS was required by law to file the termination petition within
sixty days of the change of J.S.H.'s permanent placement plan to
adoption on 28 September 2004. See
N.C. Gen. Stat. § 7B-907(e)
(2005). Due to respondents' pending appeal, and precedent such as
, the court found that it "was unable to proceed with the
termination of parental rights hearing under current case law until
the appeal was resolved." As soon as the Supreme Court resolved
the jurisdictional issue in In re R.T.W.
, DSS "noticed the matter
for hearing" in September. The court noted its prior finding that
the difficulties in securing representation for the father
constituted "extraordinary circumstances" justifying its
continuance of the hearing since July 2005. The court made an
additional finding that "[e]xtraordinary cause clearly existed
prior to July 2005 and the R.T.W.
decision[,]" inasmuch as its
jurisdiction to hear the petition was in doubt. Finally, the court
found that ruling upon the termination issue as soon as possible
served the best interests of all parties, including the mother.
The court found that if the mother's motion was allowed and DSS was
required to file a second petition, "a trial date would not be
scheduled until 2006."
The court held the termination hearing on 16 and 23 November
2005, less than sixty days after re-appointing Michael Casterline
to represent the father.
In its order terminating Respondents' parental rights, the
court found each of the grounds for termination alleged in the
petition. Based on J.S.H.'s successful foster placement and
Respondents' failure to address the issues which led to the neglect
of J.S.H., the court further concluded that termination served the
best interests of the child. Respondents appeal.
The Mother's Appeal
The mother contends the motion to dismiss the petition filed
by DSS on 15 October 2004, based on the court's failure to hear the
petition within the 90-day deadline imposed by N.C. Gen. Stat. §
7B-1109(a). The mother faults DSS for filing the termination
petition while her appeal from the 9 February 2004 adjudication of
neglect was pending. Considering the previous conflicting
authority on the issue of the court's jurisdiction,
argues DSS should have continued to work with Respondents toward
the goal of reunification until her appeal was resolved. "Assuming
that [DSS] could not in good faith proceed with [its] termination
action because of the pendency of the mother's appeal[,]" the
mother argues that "[DSS]'s actions _ in electing to pursue
adoption instead of pursuing reunification of [J.S.H.] with her
mother _ created the deadlock."
N.C. Gen. Stat. §7B-1109(a) (2005) provides that "[t]he
hearing on the termination of parental rights shall be conducted
. . . no later than 90 days from the filing of the petition or
motion unless the judge pursuant to subsection (d) of this sectionorders that it be held at a later time." Although subsection (d)
allows the court to continue the hearing for up to 90 days for good
cause shown, it provides that "[c]ontinuances that extend beyond 90
days after the initial petition shall be granted only in
extraordinary circumstances when necessary for the proper
administration of justice, and the court shall issue a written
order stating the grounds for granting the continuance." N.C. Gen.
Stat. § 7B-1109(d) (2005). The failure to conduct a hearing within
the statutory period does not constitute grounds for reversal of a
termination order "absent a showing of prejudice to [the]
respondent or any indication that the best interests of the
children were prejudiced." In re As.L.G.
, 173 N.C. App. 551, 558,
619 S.E.2d 561, 566 (2005), disc. review improvidently allowed
N.C. 476, 628 S.E.2d 760 (2006); see also In re S.W.
, __ N.C. App.
__, __, 625 S.E.2d 594, 596, disc. review denied
, 360 N.C. 534, 635
S.E.2d 59 (2006).
The lengthy delay at issue here was the result of factors
beyond the control of the court. The mother acknowledges that at
the time DSS filed its petition to terminate her parental rights on
15 October 2004, her appeal from the prior adjudication of neglect
was pending. In its review order of 7 January 2005, the court
correctly observed an unresolved split in authority regarding its
jurisdiction to proceed in the cause while Respondents' appeal was
pending. Subsequent review orders contained additional findings of
the need to hold the matter open until either the North Carolina
Supreme Court resolved the question of the court's jurisdiction, orthe resolution of Respondents' pending appeal. Once the Supreme
Court resolved the jurisdictional question by its 1 July 2005
opinion in In re R.T.W.
, the court proceeded.
The events in this case subsequent to the ruling in In re
show "extraordinary circumstances" to prevent a timely
hearing on a petition to terminate parental rights. On 8 July
2005, Michael Casterline moved to withdraw from his representation
of the father because he was scheduled to have major surgery. On
13 July 2005, the court appointed Lori Loftis as substitute counsel
for the father. On 12 September 2005, DSS noticed the 26 September
2005 hearing on its termination of parental rights petition. In
late September, however, Lori Loftis moved to withdraw due to her
previous representation of the Child Support Enforcement Agency in
an action against the father for non-payment of child support.
Inasmuch as the father's alleged non-payment of support was a
significant factor in DSS' asserted grounds for termination, the
district court needed to provide the father with new counsel.
Although the court re-appointed Michael Casterline to represent the
father, he was entitled by N.C. Gen. Stat. § 7B-1109(b) (2005) to
reasonable time to prepare his defense to the petition. The court
held the termination hearing on 16 and 23 November 2005, less than
sixty days after re-appointing Michael Casterline as counsel for
the father on 30 September 2005. In response to the mother's 30
September 2005 motion to dismiss due to the delay in the
termination hearing, the court entered an order on 24 October 2005,
finding that Lori Loftis' conflict of interest constituted"extraordinary circumstances" justifying a continuance until the 14
November 2005 term of court. In denying the mother's motion to
dismiss on 23 November 2005, the court reiterated its finding of
"extraordinary circumstances" due to the inability of the father's
appointed attorney to proceed with representation. The court then
made an explicit additional finding that "[e]xtraordinary cause [to
continue the proceedings] clearly existed prior to July 2005 and
decision[,]" inasmuch as the court's jurisdiction to
hear the termination petition was placed in doubt by Respondents'
pending appeal. The court further noted that DSS had been required
by statute to file the termination petition within sixty days of
the change of J.S.H.'s permanent placement plan to adoption on 28
September 2004. See
N.C. Gen. Stat. § 7B-907(e) (2005).
The mother does not challenge the court's findings that the
jurisdictional issue created by her appeal from the 9 February 2004
adjudication of neglect, as well as the delays involved in securing
legal representation for the father, were "extraordinary
circumstances" justifying the court's continuance of the hearing
beyond the 90-day statutory deadline. See
N.C.G.S. § 7B-1109(a),
(d). While a thirteen-month delay in hearing a termination
petition is extreme, we do not believe that it warrants a reversal
of the termination order under the unique facts of this case. The
majority of the delay was attributable to Respondents' pending
appeal and its impact on the court's jurisdiction. Other than the
mother's complaint that DSS placed her case "in limbo" by filing
the petition during the pendency of her appeal, she offers noshowing of prejudice to her or to J.S.H.. Throughout the relevant
period, the court allowed the mother visitation with J.S.H. under
the same conditions as existed prior to the change in the permanent
plan. The mother failed to avail herself of her right to
visitation or to demonstrate any attempt to comply with the prior
orders of the court. Finally, we believe that reversing the
court's order on grounds of the delay, without some showing of
prejudice to the mother, would serve only to further postpone a
final resolution to the matter to the detriment of J.S.H.
Accordingly, we overrule this assignment of error.
The Father's Appeal
The father challenges each of the three grounds for
termination found by the court, arguing that they are not supported
by the court's findings of fact or by the evidence adduced at the
termination hearing. By failing to assign error to any of the
court's individual findings of fact, however, the father has waived
any challenge to the evidentiary support for the court's findings.
See Koufman v. Koufman
, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991). Therefore, our review is limited to a determination of
"whether the trial court's findings support its conclusion[s] of
law." In re Beasley
, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647
Under N.C. Gen. Stat. § 7B-1111(a)(2) (2005), a court may
terminate a respondent's parental rights if:
[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 reasonableprogress 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.
A finding that a parent has willfully left a child in a placement
outside the home will be upheld, notwithstanding some efforts by
the parent to regain custody, if the parent fails to demonstrate
reasonable progress in correcting the problems which led to the
child's removal from the home. In re Oghenekevebe
, 123 N.C. App.
434, 440, 473 S.E.2d 393, 398 (1996).
The court made the following findings pertinent to its
adjudication under N.C.G.S. § 7B-1111(a)(2):
 [DSS] received [a] Child Protective
Services complaint on or about September 8,
2003 following the birth of the minor child.
This report alleged that [the mother] had lost
custody of her other children, had not
completed her substance abuse treatment as
previously ordered by the [c]ourt, and that
[the father] was an untreated, convicted sex
offender. The report was investigated and
substantiated and the Department sought and
was granted non-secure custody of the minor
child on September 11, 2003.
 The minor child was adjudicated a
neglected child on November 19, 2003, in that
she lived in an environment injurious to her
welfare . . . .
 At [d]isposition, [the father] was . . .
ordered to obtain a substance abuse assessment
and follow through with the recommendations of
that assessment; submit to random drug
screens; attend AA and NA as recommended by
his therapist; attend and successfully
complete parenting classes; locate housing and
maintain stable living arrangements for six
(6) months; establish and maintain a means of
financial support either through employment orpublic benefits; and submit to a psychological
evaluation and follow all recommendations of
that evaluation. [The father] was also ordered
to either locate a previous Sex Offender
Specific Evaluation or submit to a new
evaluation and follow the recommendations of
 [The father] completed his substance abuse
assessment . . . and it recommended he attend
20-30 hours of weekly outpatient counseling
and AA/NA as aftercare. It also recommended
he attend individual and/or group counseling
and a psychiatric/medication evaluation. [The
father] completed 20-30 hours of group
counseling; however he failed to attend any
AA/NA meetings, individual or group therapy,
or participate in a psychiatric/medication
evaluation. [He] did not participate in any
Sex Offender Specific Treatment that was
initially ordered on November 26, 2001.
 . . . [The father] completed the
[psychological] evaluation . . . on March 26,
2004. According to the evaluator, Dr. Robert
McDonald, [the father's] psychological testing
was virtually invalidated by his responses to
the evaluation's questions. . . . [The
father's] minimization of his own conduct
during the evaluation was consistent with that
of a sex offender.
 The evaluation recommended that [the
father] have a complete Sex Offender Specific
Evaluation, that his prescription for opiate-
based pain medication be reassessed due to his
history of substance abuse and that he
complete sex offender treatment. [He]
attended one appointment with a sex offender
treatment provider . . . and did not return
for any further appointments or treatment.
[He] failed to have his medication reassessed
and continues to take opiate-based pain
 [The father] was initially compliant with
random drug screens, however later in the case
he began stating that he was unable to get
drug screens due to money. . . . [He] was
employed sporadically throughout the pendency
of the underlying juvenile matter, and was the
beneficiary of a $50,000.00 workers[']compensation claim early on in that case.
Failure to obtain court ordered drug
screens. . . due to poverty is not a credible
 [The father] initially attended substance
abuse treatment, but discontinued treatment on
or about June 9, 2004. He continued to report
to the Child and Family Team that he was
attending treatment group even though he was
not. [He] has an admitted long-standing drug
 . . . The last visitation [the father] had
with the minor child was June 16, 2004.
 [The father] . . . has not been able to
hold a consistent job and reports being "laid
off" from every job he has had. [He] was court
ordered to pay reasonable child support for
the minor child and is approximately $642.00
in arrears at the time of this hearing. The
last child support payment made by the
. . . [the father] was on or about September
15, 2005, in the amount of $10.15. [His] court
ordered child support amount is $70.00 per
The court further found that the father had "not followed through
with court ordered services for reunification, and the conditions
that led to [J.S.H.] being placed in [DSS] custody continue to
exist." Finally, in finding grounds for termination under N.C.G.S.
§ 7B-1111(a)(2), the court noted that "[J.S.H.] has been in foster
care and/or an out-of-home placement since September 11, 2003," and
found that "[the father] has made no effort to comply with the
orders of the [c]ourt in the underlying file to correct the
conditions that led to the removal of [J.S.H.] from the home."
The quoted findings are sufficient to support the court's
conclusion that the father failed to make reasonable progress
toward fulfillment of the requirements of his court-ordered caseplan in the twelve months preceding 15 October of 2004. The father
did obtain the court-ordered substance abuse assessment and a
general psychological evaluation. However, he declined to complete
the recommended treatment for his substance abuse and misled
officials about his participation in treatment. The father did not
comply with the recommendations of his psychological assessment.
He failed to obtain a sex offender specific evaluation or provide
proof to the court of a prior evaluation. Moreover, after
initially submitting to court-ordered drug screens, he ceased this
compliance in August of 2004, even though the screens were a
condition of his visitation J.S.H.. The father last visited J.S.H.
on 16 June 2004, and was inconsistent with visitation prior to that
date. He failed to obtain a stable source of financial support or
to satisfy his modest support obligation, despite sporadic
employment and the receipt of a $50,000 workers' compensation
settlement. Inasmuch as "[e]xtremely limited progress is not
reasonable progress" for purposes of N.C.G.S. § 7B-1111(a)(2), In
, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995), we
hold the court's findings to be sufficient to support termination
under this subsection.
We note that the evidence introduced at the
termination hearing in November 2005 reveals no significant
progress by the father after the petition was filed.
"'The finding of any one of the grounds is sufficient to order
termination.'" In re C.L.C.
, 171 N.C. App. 438, 447, 615 S.E.2d
(quoting Owenby v. Young
, 357 N.C. 142, 145, 579 S.E.2d
264, 267 (2003)). Accordingly, having upheld the court's findingof a basis for termination under N.C.G.S. § 7B-1111(a)(2), we need
not review the additional grounds found by the court under N.C.
Gen. Stat. § 7B-1111(a)(1) and (3). See In re Taylor
, 97 N.C. App.
57, 64, 387 S.E.2d 230, 233-34 (1990).
The record contains additional assignments of error not
addressed by Respondents in their briefs to this Court. Pursuant
to N.C.R. App. P. 28(b)(6), we treat these remaining assignments of
error as abandoned.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
The General Assembly's recent revision of N.C. Gen. Stat. §
7B-1003 applies to petitions filed on or after October 1, 2005,
and does not affect our analysis of this case.
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