IN THE MATTER OF:
Buncombe County
Nos. 05 J 513; 05 J 514
Mi. T., Kys. T., Ma. T., 05 J 515; 05 J 516
& Kye. T.
Danya Ledford Vanhook, Buncombe County Department of Social
Services, for petitioner-appellee.
Sofie W. Hosford for respondent-appellant.
Michael N. Tousey for Guardian ad Litem-appellee.
MARTIN, Chief Judge.
Respondent appeals from judgments terminating her parental
rights to her four minor children. At the conclusion of the
termination hearing on 9 May 2006, the court indicated that it had
determined grounds existed to terminate parental rights but that it
was taking under advisement the determination of whether it is in
the best interests of the children to terminate respondent's
parental rights. The court subsequently filed written judgments on
27 June 2006 terminating respondent's parental rights. The court
terminated respondent's parental rights to each child on the
grounds that respondent: (1) neglected each child, and (2)
willfully left each child and siblings in a placement outside thehome for more than twelve months without showing reasonable
progress under the circumstances in correcting the conditions which
led to the removal of the children. Respondent filed notice of
appeal from the judgments on 26 July 2006.
*** Converted from WordPerfect ***
In reviewing an order terminating one's parental rights, we
examine the findings of fact to determine whether they are
supported by clear, cogent and convincing evidence and whether the
conclusions of law are supported by the findings of fact. In re
Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158, aff'd, 354 N.C.
359, 554 S.E.2d 644 (2001). Findings of fact that are not
challenged on appeal are deemed supported by the evidence and are
binding. In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643,
647 (2001). If the appellate court can uphold the trial court's
determination of the existence of a single ground for termination
of rights, then it need not consider other grounds determined by
the trial court to be existent. In re Davis, 116 N.C. App. 409,
413, 448 S.E.2d 303, 305, disc. review denied, 338 N.C. 516, 452
S.E.2d 808 (1994).
Respondent first contends the court erred in concluding that
she willfully left her children in foster care for more than twelve
months without correcting the conditions that led to their removal.
This conclusion tracks the language of N.C.G.S. § 7B-1111(a)(2),
which permits termination of parental rights upon a finding that
“[t]he parent has willfully left the juvenile in foster care or
placement outside the home for more than 12 months without showing
to the satisfaction of the court that reasonable progress under thecircumstances has been made in correcting those conditions which
led to the removal of the juvenile.” N.C. Gen. Stat. § 7B-
1111(a)(2) (2005). Respondent argues petitioner failed to show
that she willfully failed to correct the conditions that led to the
removal of the children from her custody. She submits that the
evidence actually shows she made great progress toward correcting
those conditions.
The “willful” action within the meaning of N.C.G.S. § 7B-
1111(a)(2) to terminate rights for willfully leaving a child in
foster care is something less than the purposeful or deliberate
action required to terminate parental rights for willful
abandonment pursuant to N.C.G.S. § 7B-1111(a)(7). See In re
Shepard, 162 N.C. App. 215, 224, 591 S.E.2d 1, 7 (2004); In re
Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995).
“Willfulness under this section means something less than willful
abandonment and does not require a finding of fault by the parent.”
In re B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004).
Termination on this ground may be made even though the parent has
made some efforts to regain custody of the children. In re Becker,
111 N.C. App. 85, 95, 431 S.E.2d 820, 826-27 (1993).
The court's findings of fact to which respondent has not taken
exception, and thus are binding, show that the children were
removed from her home on 14 May 2004 and placed in foster care. On
12 October 2004, the court adjudicated the children as neglected
and dependent in that they did not receive proper care, supervision
or discipline, they lived in an environment injurious to theirwelfare, and respondent could not provide for the care and
supervision of the children. The court ordered respondent to,
inter alia, follow the recommendations of her psychological
evaluation, including psychotherapy; complete anger management
classes; complete parenting classes; complete substance abuse
treatment; and obtain and maintain employment.
Initially, respondent complied with the court's order by
completing parenting classes, undergoing treatment, and completing
substance abuse treatment. However, at the time of a permanency
planning hearing on 6 July 2005, respondent had not seen her
therapist for two months and she had missed an appointment with a
psychiatrist. On 11 July 2005, one day after the children visited
her home, a male friend of respondent assaulted her with a knife
and knocked her unconscious. Respondent did not report this
incident to petitioner. Respondent acknowledged that she exposed
the children to her assailant, who brought them fireworks. On 15
July 2005, respondent was jailed for violation of terms and
conditions of probation imposed following a conviction of driving
while impaired. She did not visit her therapist in August 2005.
Following her release from jail in September 2005, respondent
resumed weekly visitations with the children. However, respondent
cancelled the scheduled visit on 17 October 2005 because she did
not feel like walking to the visit. On 2 November 2005, respondent
appeared in court for a permanency planning hearing and agreed to
undergo a drug screen. Respondent tested positive for cocaine and
marijuana. The court conditioned further visitations onrespondent's having a clean drug screen. At the next court hearing
on 29 November 2005, respondent tested positive for marijuana.
According to the trial court's findings, respondent's
employment history has been sporadic. She has had a number of jobs
lasting for short durations. She was employed by a McDonald's
restaurant in September 2005 but she quit this job after only one
month because allegedly the manager “yelled at her.” She did not
work again until approximately two and one-half weeks before the
court hearing of 29 November 2005. She told the court that she is
a good worker but she has not found a job that she likes a lot so
she just works a while for money as needed. However, her actions
have contradicted her words. Her failure to obtain and maintain
employment resulted in her being unable to pay her electrical bill
and pay fines and costs arising out of her conviction of driving
while impaired, as a result of which she lost free Section 8
housing and the criminal court revoked her probation and
incarcerated her. Finally, the trial court found that respondent
has been difficult to work with due to her high degree of
hostility, high degree of emotional outbursts, and her resistance
to services. For example, she declined one-on-one parenting
classes designed to ease the transition of the children back into
her home, asserting she did not need them because “she was a good
mom.” Respondent also became angry when a counselor advised her
not to expose the children to persons who could have a bad
influence on them. The counselor identified one man in particular,
who reeked of marijuana when the counselor walked past him. In April 2006 respondent showed up unexpectedly at a therapy
session for the minor children. As a result of her visit, one of
the children had to be admitted to a hospital. All three of the
boys have been diagnosed with Attention Deficit Hyperactivity
Disorder (ADHD), and all three exhibit behavior problems. One of
the boys has been diagnosed with several psychological disorders,
and the girl has also exhibited behavior problems and is in
therapy. The behavior problems worsen in the days immediately
before visitations with respondent.
We hold the foregoing findings of fact support the court's
conclusion that she willfully left her children in foster care for
more than twelve months without correcting the conditions that led
to their removal.
Respondent next contends the court erred in concluding that
she neglected the children and that there was a likelihood of
repetition of neglect. As only one ground is required to terminate
parental rights and we uphold the termination of rights pursuant to
N.C.G.S. § 7B-1111(a)(2), we need not consider this contention.
See Davis, 116 N.C. App. at 413, 448 S.E.2d at 305.
Respondent next contends the court erred in concluding that it
is in the best interests of the children that her parental rights
be terminated.
“The trial court has discretion, if it finds that at least one
of the statutory grounds exists, to terminate parental rights upon
a finding that it would be in the child's best interests.” In re
Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). Factors to consider in determining the child's best interests
include: (1) the age of the child; (2) the likelihood of adoption;
(3) the impact on the accomplishment of the permanent plan; (4) the
bond between the child and the parent; (5) the relationship between
the child and a proposed adoptive parent or other permanent
placement; and (6) any other relevant consideration. N.C. Gen.
Stat. § 7B-1110(a) (2005). The court is to take action “which is
in the best interests of the juvenile” when “the interests of the
juvenile and those of the juvenile's parents or other persons are
in conflict.” N.C. Gen. Stat. § 7B-1100(3) (2005). As a
discretionary decision, the trial court's disposition order will
not be disturbed unless it could not have been the product of
reasoning. In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385,
387, aff'd, 360 N.C. 165, 622 S.E.2d 495 (2005).
Respondent argues that because she demonstrated her fitness as
a parent and the children are bonded to her, the court's decision
to terminate rights could not be the product of reasoned decision.
We are not persuaded by respondent's argument. In making its
determination to terminate respondent's parental rights, the court
made the following findings of fact, to which respondent has not
assigned error and are therefore binding:
1. Each child has special mental health needs
and their needs are being addressed while in
care. The children are making progress with
their treatment and behaviors and have
benefited from the stability provided by being
placed outside the home of the respondent
mother.
2. The respondent mother has not been able to
maintain stability sufficient to care forherself. She has been incarcerated for
probation violations; she has been assaultive;
she has been the victim of a violent assault;
she has been unable to maintain employment;
she has been inconsistent in being willing/
able to accept services for herself and her
family; and she has used illegal drugs. There
is no evidence the respondent mother has the
ability to meet the needs of any one of her
children at this time and she certainly has
not demonstrated the ability to meet the needs
of all four children at this time.
3. The children (except the youngest) are
bonded with the mother and the respondent
mother clearly loves her children. At the
same time, they have demonstrated behavior
problems connected to visitation. Overall,
the respondent mother's contact with the
children is having a negative impact on the
children's stability.
4. The Court has exhausted services available
in this community to assist the respondent
mother in functioning as a responsible parent
for the four children. While the respondent
mother is benefiting at this time from her
mental health treatment, she has not reached a
point where she is able to attend to her needs
and responsibilities. For example, she lives
within walking distance of the courthouse, but
was one hour and forty minutes late getting to
court, was inappropriately dressed when she
arrived and had to have her cell phone taken
away from her. Further, she has a cell phone
but is in significant arrears on her child
support.
These findings reflect a rational reasoning process. They support
the court's discretionary decision to terminate respondent's
parental rights.
Respondent's final contention is that the court erred by not
entering an order within 30 days after the court rendered its
decision to terminate parental rights as required by N.C.G.S. § 7B-
1109(e). This subsection provides: The court shall take evidence, find the facts,
and shall adjudicate the existence or
nonexistence of any of the circumstances set
forth in G.S. 7B-1111 which authorize the
termination of parental rights of the
respondent. The adjudicatory order shall be
reduced to writing, signed, and entered no
later than 30 days following the completion of
the termination of parental rights hearing.
If the order is not entered within 30 days
following completion of the hearing, the clerk
of court for juvenile matters shall schedule a
subsequent hearing at the first session of
court scheduled for the hearing of juvenile
matters following the 30-day period to
determine and explain the reason for the delay
and to obtain any needed clarification as to
the contents of the order. The order shall be
entered within 10 days of the subsequent
hearing required by this subsection.
N.C. Gen. Stat. § 7B-1109(e) (2005). The last two sentences of
this subsection were added by House Bill 1150 during the 2005
General Assembly. 2005 N.C. Sess. Laws ch. 398, § 16. Nothing in
the record shows that the clerk scheduled or that respondent
requested the hearing contemplated by this section. Moreover,
“[t]his Court has previously stated that absent a showing of
prejudice, the trial court's failure to reduce to writing, sign,
and enter a termination order beyond the thirty day time window may
be harmless error.” In re L.E.B., 169 N.C. App. 375, 378-79, 610
S.E.2d 424, 426, disc. review denied, 359 N.C. 632, 616 S.E.2d 538
(2005). “[T]he complaining party must appropriately articulate the
prejudice arising from the delay in order to justify reversal.” In
re S.N.H., N.C. App. , , 627 S.E.2d 510, 513 (2006).
“[T]he longer the delay in entry of the order beyond the thirty-day
deadline, the more likely prejudice will be readily apparent.” In
re C.J.B., 171 N.C. App. 132, 135, 614 S.E.2d 368, 370 (2005). Respondent has not shown, and we fail to perceive, how the
nineteen-day delay prejudiced respondent. This assignment of error
is overruled.
The orders terminating respondent's parental rights are
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).