Appeal by Respondents from order entered 28 June 2006 by Judge
Regan A. Miller in District Court, Mecklenburg County. Heard in
the Court of Appeals 17 January 2007.
Duncan B. McCormick for Respondent-Appellant Mother.
Lisa Skinner Lefler for Respondent-Appellant Father.
Mecklenburg County Attorney, by Tyrone C. Wade, for
Petitioner-Appellee Mecklenburg County Department of Social
Elizabeth Myrick Boone for Guardian ad Litem.
C.J.I. (Respondent-Mother) and T.H.J. (Respondent-Father)
(collectively, Respondents) are the parents of J.J., T-a.J., and T-
e.J. (the children). Mecklenburg County Department of Social
Services (DSS) filed petitions on 20 January 2006 to terminate
Respondents' parental rights to each of the children. The
petitions alleged two grounds for termination of parental rights:
(1) that Respondents willfully left the children in foster care for
more than twelve months without making reasonable progress under
the circumstances to correct the conditions which led to theremoval of the children; and (2) that Respondents left the children
in DSS' custody for more than six months and willfully failed to
pay a reasonable portion of the costs of care although physically
and financially able to do so. The trial court heard five days of
testimony, beginning on 24 April 2006. An order terminating the
parental rights of Respondents was entered on 28 June 2006.
DSS filed a petition on 2 February 2004 alleging J.J., T-a.J.,
T-e.J., and Respondent-Mother's two other children, D.B. and J.I.,
to be neglected and dependent. The petition alleged: (1) that
Respondent-Mother's husband, N.I., was physically abusive with
Respondent-Mother and D.B.; (2) that N.I. was evading arrest by
state and federal authorities; and (3) that Respondent-Mother was
assisting N.I. The petition also alleged that Respondent-Mother
had moved with the children several times to avoid N.I., but that
N.I. had always found the family. DSS alleged that N.I. assaulted
D.B. the last two times that he had located the family. DSS
obtained non-secure custody of the five children on 4 February 2004
and placed the children in foster care. The children were
adjudicated neglected and dependent on 6 April 2004.
Following the adjudicatory hearing, the trial court adopted a
case plan between DSS and Respondent-Mother. Under the case plan,
Respondent-Mother agreed to complete an assessment for substance
abuse and mental health issues, and to comply with the resulting
recommendations. Respondent-Mother also agreed to complete
parenting classes and mental health counseling, to resolve hercriminal charges, to refrain from further criminal activity, and to
obtain and maintain appropriate housing and employment.
The children exhibited symptoms of attention deficit disorder
and depression while in DSS' custody, and were treated for these
disorders. The two boys were physically aggressive and simulated
sexual acts with each other, and with their younger sister. These
behaviors lessened after the children were placed in foster care.
The evidence presented at the termination hearing tended to
show that Respondent-Mother was convicted of communicating threats,
and began serving an active sentence for a probation violation in
June 2004. Respondent-Mother was placed on a work release program
in October 2004. Her work release was revoked in January 2005
because she was found in possession of a cell phone, cell phone
charger, and another individual's checkbook, in violation of the
program's rules. Although Respondent-Mother was previously
eligible for release in February 2005, as a result of the work
release violations, she was incarcerated until June 2005.
While incarcerated, Respondent-Mother participated in several
self-improvement programs. Melissa Mummert (Mummert), a domestic
violence educator working in the Mecklenburg County jail, testified
that Respondent-Mother was an active participant in the domestic
violence sessions Mummert taught, and that Respondent-Mother
requested permission to attend more than the four sessions required
for all inmates. Mummert said Respondent-Mother shared her
experiences with the other women in the class, "was pretty
outspoken[,]" and "acted as . . . sort of a mentor to the othergirls in the class."
Diane Moore (Moore), who taught a voluntary life skills class
in the Mecklenburg County jail, testified in detail about the
topics covered in her classes, but indicated she did not recall
much about Respondent-Mother, except that Moore liked her. Sandra
Willoughby (Willoughby), a counselor of inmates in the Mecklenburg
County jail, also testified, but admitted she did not have "any
real specific memories" of Respondent-Mother. Willoughby stated,
"I have no recollection of anything negative [with respect to
Respondent-Mother.] My general recollection is that she was an
active participant, but I cannot speak to anything more specific."
After Respondent-Mother was released from jail, she began
mental health therapy with Dr. Russell Hancock (Dr. Hancock). Dr.
Hancock testified that Respondent-Mother attended twenty-seven of
the forty-one sessions she scheduled with him. The treatment plan
Dr. Hancock and Respondent-Mother created focused on self-esteem
and anger management. Respondent-Mother did not provide Dr.
Hancock with a copy of her case plan or any court orders in the
juvenile case. Dr. Hancock stated that "the focus [was] not about
[Respondent-Mother] as a parent, but [Respondent-Mother] as an
Lisa Womack Nesbit (Nesbit), a social worker at the
Mecklenburg County Women's Commission, testified that Respondent-
Mother completed a domestic violence assessment on 3 May 2004, and
began group sessions on 15 June 2004. Due to her incarceration,
Respondent-Mother did not complete the program until 18 October2005, but ultimately, she completed all twelve sessions. Nesbit
testified that Respondent-Mother "was always active . . .,
supportive of peers and able to share experiences with others."
Reneisha Black (Black), a family educator at the Family
Center, testified that Respondent-Mother enrolled in parenting
classes on 19 July 2005 after being referred by DSS, and that
Respondent-Mother successfully completed the seven-week program.
Black remembered Respondent-Mother as being vocal in class, and as
being a positive influence on the class.
T-e.J. testified that while he was living with his maternal
grandmother and step-grandfather (the Washingtons), he and his
siblings stayed overnight with Respondent-Mother. He testified
that Respondent-Mother would return the children to the Washingtons
so the children could be taken to school.
Lisa Looby (Looby), the children's DSS social worker,
testified that Respondent-Mother had not complied with her case
plan. Looby stated that Respondent-Mother resisted making an
appointment for a mental health assessment. Looby also said
Respondent-Mother failed to sign a release form to permit DSS to
share information with Respondent-Mother's therapist about DSS'
involvement with Respondent-Mother until ordered to do so by the
court in September 2005. Looby testified that Respondent-Mother
had failed to maintain regular contact with DSS after her release
from jail and had failed to provide DSS with proof of employment,
or of appropriate housing.
Looby noted that the children were placed with the Washingtonson 8 June 2005. After Respondent-Mother was released from
incarceration, DSS began to allow telephone contact with the
children. The telephone contact continued while the children were
with the Washingtons. DSS also authorized limited supervised
visitation beginning in September 2005. Looby characterized the
visits she witnessed as "pretty chaotic." DSS placed the children
back into foster care on 18 November 2005 "[b]ecause [DSS] learned
that the children had been returned to [Respondent-Mother]" without
the knowledge or authorization of DSS. Visitation with Respondent-
Mother ceased. Looby also testified that in the six months which
preceded the filing of the petition to terminate, DSS had spent
$15,092.91 to care for the children and had received no support
from either Respondent. Looby testified she believed that
termination of Respondents' parental rights was in the best
interests of the children because the children responded very well
to consistency and stability when it was provided for them.
Respondent-Father ceased living with Respondent-Mother
sometime in 1997, prior to the removal of the children from
Respondent-Mother's custody. Respondent-Father testified that
although he stopped living with Respondent-Mother, he remained
active in the children's lives by financially supporting
Respondent-Mother and making sure the children had the things that
they needed. Respondent-Father testified that after relocating to
North Carolina in 1993, he had been incarcerated numerous times for
short periods, but that he had remained involved with the children
at all times when he was not incarcerated. In 2001, Respondent-Father was convicted of felony robbery with a dangerous weapon, and
remains incarcerated with a projected release date in 2013.
Respondent-Father testified that since the neglect petition
was filed in 2004, he has had no physical contact with the
children. He also testified that since 2004 he had been in contact
with the children by telephone, but "[n]ot that often[.]" He also
testified that he had written "a couple of letters." Although
Respondent-Father said he sent the children cards, he admitted that
he had not done so in 2006.
Respondent-Father testified that while incarcerated, he
participated in a ninety-day drug assessment treatment program, a
twelve-week anger management program, and a stress management
program. He did not offer into evidence any certificates of
completion from those programs.
Looby testified that Respondent-Father contacted her once to
request permission to write to the children, but that she had not
had contact with him since July 2004. She testified she received
no response to two letters she sent to him, one asking for
permission to give J.J. a haircut, and another requesting
information about potential relative placements for the children.
I. Respondent-Mother's Appeal
Respondent-Mother challenges certain findings of fact made by
the trial court. We must determine whether each finding of fact is
supported by clear, cogent, and convincing evidence. In re Huff
140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review
, 353 N.C. 374, 547 S.E.2d 9 (2001). We conclude that one ofthe trial court's findings of fact was not sufficiently supported
by the evidence. However, because that finding was unnecessary for
the trial court to find that Respondent-Mother willfully failed to
pay a reasonable portion of the cost of care, we affirm the trial
court's order terminating Respondent-Mother's parental rights.
Respondent first challenges the trial court's finding that her
visits with Dr. Hancock were "sporadic." At the termination
hearing, Dr. Hancock testified that Respondent-Mother had scheduled
forty-one appointments and that she appeared at twenty-seven
appointments. Dr. Hancock stated Respondent-Mother's attendance
was sometimes, but not always, consistent. He stated "there are .
. . weeks on end [when Respondent-Mother] makes it, but then there
are times when [Respondent-Mother] doesn't come consistently." We
find this testimony sufficient to support the trial court's finding
that Respondent-Mother's appearance at counseling sessions with Dr.
Hancock was sporadic.
Respondent-Mother also argues that the trial court's finding
of fact that she had not "engaged in mental health counseling to
address the issues which led to placement of [the] children in
custody" was not supported by clear, cogent, and convincing
evidence. Dr. Hancock testified that when he initially met with
Respondent-Mother to formulate a treatment plan, she indicated she
needed to work on her self-esteem and anger management.
Respondent-Mother did not provide Dr. Hancock with a copy of her
case plan or any court orders in the juvenile case. Dr. Hancock
testified that he was "unaware that DSS was involved with her case"when he and Respondent-Mother devised her treatment plan, and that
Respondent-Mother did not inform him of DSS' concerns regarding the
children. He also said he later learned that a petition to
terminate Respondent-Mother's parental rights had been filed, but
was not sure whether he learned that from Respondent-Mother or from
Looby. Dr. Hancock also stated that "the focus [was] not about
[Respondent-Mother] as a parent, but [Respondent-Mother] as an
individual." We find the trial court's finding of fact supported
by clear, cogent, and convincing evidence.
Respondent-Mother also challenges the trial court's finding of
fact that Respondent-Mother had participated in self-improvement
programs while incarcerated, but "none of the supervisors of those
programs had any recollection of her being an active participant."
Respondent-Mother also challenges that portion of the finding that
stated she had not "changed her dysfunctional attitude toward
parenting or legal and social relationships that caused the
children to come into foster care."
Mummert testified that Respondent-Mother was an active
participant in the domestic violence classes Mummert taught.
Mummert said Respondent-Mother shared her experiences with the
other women in the class, "was pretty outspoken[,]" and "acted as
. . . sort of a mentor to the other girls in the class." Moore and
Willoughy did not specifically remember Respondent-Mother's
participation; however, we cannot say this portion of the finding
is supported by clear, cogent, and convincing evidence. However,
this finding of fact does not affect the sufficiency of the trialcourt's findings with respect to Respondent-Mother's willful
failure to pay a reasonable portion of the children's cost of care,
so this erroneous finding does not affect the trial court's order
terminating Respondent-Mother's parental rights.
Additionally, testimony supports the trial court's finding
that Respondent-Mother had not changed her dysfunctional attitude
toward parenting and legal and social relationships. Respondent-
Mother testified that to obtain a divorce from N.I. from the State
of New York, she falsely stated that she did not know where N.I.
was "so that the divorce could go through quickly and smoothly[.]"
Respondent-Mother said she knew her action was wrong, but did it
anyway. Further, T-e.J. testified that Respondent-Mother had
allowed the children to stay overnight with her while the children
were placed with the Washingtons. These actions support the trial
court's finding that Respondent-Mother continued to display a
dysfunctional attitude toward parenting and legal and social
relationships. We conclude that there was clear, cogent, and
convincing evidence to support this finding.
Respondent-Mother next challenges the trial court's findings
of fact that the children had been returned to her care while
placed with the Washingtons, specifically, findings of fact
nineteen and twenty. T-e.J.'s testimony provided direct support
for these findings. T-e.J. testified that while he and his
siblings were placed with the Washingtons, they stayed overnight at
Respondent-Mother's house, and that Respondent-Mother would drive
the children back to the Washingtons' home so Mrs. Washington couldtake them to school. Looby's testimony echoed T-e.J.'s testimony.
Although Respondent-Mother denied that the children had been
returned to her care, this testimony is sufficient to support the
trial court's findings of fact.
Respondent-Mother also challenges the trial court's finding
that she paid no child support in the six months prior to the
filing of the termination petition. In support of this argument,
Respondent-Mother cites her testimony that she provided financial
support directly to the Washingtons while the children were placed
with them. Looby testified that Respondent-Mother had not paid any
money to DSS during the six months prior to the filing of the
termination petition. Respondent-Mother presented no evidence to
demonstrate that she had made payments to DSS during the relevant
time. We conclude the trial court's finding of fact was supported
by clear, cogent, and convincing evidence.
Respondent-Mother next assigns error to the trial court's
conclusion that Respondent-Mother willfully failed to pay a
reasonable portion of the children's cost of care.
N.C. Gen. Stat. § 7B-1111(a)(3) (2005) provides that a trial
court may terminate a parent's rights if
[t]he juvenile has been placed in the custody
of a county department of social services, a
licensed child-placing agency, a child-caring
institution, or a foster home, and the parent,
for a continuous period of six months next
preceding the filing of the petition or
motion, has willfully failed for such period
to pay a reasonable portion of the cost of
care for the juvenile although physically and
financially able to do so.
In order to terminate a parent's rights under N.C.G.S. § 7B-1111(a)(3), a trial court must find that the parent had the ability
to pay child support. In re T.D.P.
, 164 N.C. App. 287, 289, 595
S.E.2d 735, 737 (2004), aff'd per curiam
, 359 N.C. 405, 610 S.E.2d
199 (2005). Ability to pay controls what constitutes a reasonable
portion of the cost of foster care for a child, which a parent must
pay. In re Clark
, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981). "A
parent is required to pay that portion of the cost of foster care
for the child that is fair, just and equitable based upon the
parent's ability or means to pay." Id.
A parent can fail to pay
only if the parent had the ability to pay some amount greater than
, 164 N.C. App. at 290, 595 S.E.2d at 738.
In the present case, the trial court found that Respondent-
Mother was employed during the relevant six month period of time,
and that she "had the means and ability to pay something toward the
children's cost of care; however, [Respondent-Mother] paid
nothing." Respondent-Mother testified that after her release, she
was employed at a temporary agency, a Bob Evans restaurant, and a
thrift store. There was clear and convincing evidence that
Respondent-Mother was able to pay some amount greater than zero,
but did not do so. Because we hold there was sufficient evidence
to find this ground to terminate Respondent-Mother's parental
rights, we need not address Respondent-Mother's arguments
pertaining to the other grounds found by the trial court. In re
, 159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003) ("[w]here
we determine the trial court properly concluded that one ground
exists to support the termination of parental rights, we need notaddress the remaining grounds.").
Lastly, Respondent-Mother argues the trial court abused its
discretion by concluding that the best interests of the children
would be served by terminating her parental rights. Specifically,
Respondent-Mother argues the trial court failed to consider the
criteria contained in N.C. Gen. Stat. § 7B-1110(a).
N.C. Gen. Stat. § 7B-1110(a) (2005) provides that when
determining whether to terminate a parent's rights, the trial court
shall consider (1) the age of the juvenile; (2) the likelihood the
juvenile will be adopted; (3) whether termination will aid in
accomplishing the permanent plan of the juvenile; (4) the bond
between the parent and the juvenile; (5) the quality of the
relationship between the proposed permanent placement of the
juvenile and the juvenile; and (6) any relevant consideration. We
review the trial court's decision to terminate a parent's rights
for abuse of discretion. In re Nesbitt
, 147 N.C. App. 349, 352,
555 S.E.2d 659, 662 (2001).
The trial court's detailed findings of fact reveal that the
trial court considered the factors required by N.C.G.S. § 7B-
1110(a). The trial court made specific findings referencing the
age of each of the children, the facts leading up to removal of the
children from Respondent-Mother's care, the efforts of DSS to place
the children with their maternal grandparents, and the improvement
in the children's behavior when their interaction with Respondent-
Mother was limited. Based on the findings of fact made by the
trial court after an extensive termination hearing, we can discernno abuse of discretion and therefore overrule this assignment of
II. Respondent-Father's Appeal
The trial court concluded that Respondent-Father willfully
left the children in a placement outside the home for more than
twelve months without showing reasonable progress and that
Respondent-Father willfully failed to pay a reasonable portion of
the cost of care for the children. Because we find the trial court
correctly found that Respondent-Father willfully left the children
in a placement outside the home without making reasonable progress
under the circumstances, we need not reach his argument regarding
willful failure to pay a reasonable portion of the costs of the
children's care. Clark
, 159 N.C. App. at 84, 582 S.E.2d at 663
("[w]here we determine the trial court properly concluded that one
ground exists to support the termination of parental rights, we
need not address the remaining grounds.").
N.C. Gen. Stat. § 7B-1111(a)(2) (2005) provides that a trial
court may terminate a parent's 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 reasonable
progress 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.
This Court has held that to terminate rights pursuant to this
ground, the trial court must first determine by clear, cogent, andconvincing evidence that the child has been willfully left in a
placement outside the home for over twelve months, and second, that
at the time of the hearing the parent has not made reasonable
progress under the circumstances. In re O.C.
, 171 N.C. App. 457,
464-65, 615 S.E.2d 391, 396 (2005). "Willfulness is established
when the respondent had the ability to show reasonable progress,
but was unwilling to make the effort." 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).
Although Respondent-Father was limited in what he could do to
maintain a relationship with the children because he was
incarcerated, he did very little. Respondent-Father was given
permission to write to the children, but testified he only "wrote
a couple of letters." Looby testified that the only contact
Respondent-Father had with her was when he asked for permission to
write to the children, and that he had not contacted her since July
2004. She also testified that he had not responded to a letter she
sent to him requesting permission to give J.J. a haircut, or a
second letter in which she inquired as to any relatives with whom
the children might be placed. This Court has held that a general
lack of involvement over two years is sufficient to find willful
abandonment. In re Bluebird
, 105 N.C. App. 42, 49, 411 S.E.2d 820,
824 (1992) (finding that the Respondent's "meager efforts did not
effectuate any improvement in correcting the situation"). Because
willfullness in the context of N.C.G.S. § 7B-1111(a)(2) is
"something less than willful abandonment[,]" we find this evidencesufficient to support the trial court's finding that this ground
existed. In re Bishop
, 92 N.C. App. 662, 668, 375 S.E.2d 676, 680
Finally, based upon the detailed findings of fact made by the
trial court after an extensive termination hearing, we cannot
conclude the trial court abused its discretion in determining that
it was in the best interests of the children that Respondent-
Father's parental rights be terminated.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).
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