NO. COA06-1382
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
IN THE MATTER OF:
Wilkes County
A.L.P., No. 02 J 209
Minor Child
Appeal by respondents from an order entered 19 July 2006 by
Judge Jeanie R. Houston in Wilkes County District Court. Heard in
the Court of Appeals 12 March 2007.
Paul W. Freeman, Jr. for petitioner-appellee Wilkes County
Department of Social Services.
Tracie M. Jordan for appellee Guardian ad Litem.
Winifred H. Dillon for respondent-appellant mother.
Richard E. Jester for respondent-appellant father.
HUNTER, Judge.
Respondents (hereinafter “mother” and “father”) are the named
parents of a child born out of wedlock. Mother and father have
never married and father has never legitimated the child.
Petitioner Wilkes County Department of Social Services
(“petitioner”) filed a petition on 25 November 2002 alleging that
the child, nineteen months old at the time, is a neglected juvenile
in that the child lives in an environment injurious to the child'swelfare. The trial court entered an order granting custody to
petitioner, who has continuously retained custody since that time.
On 7 June 2005, petitioner filed a petition to terminate the
parental rights of the parents. The trial court conducted a
hearing on the petition on 28 March 2006. The trial court filed an
order terminating the parental rights of both parents on 19 July
2006.
In its order terminating the parents' parental rights, the
trial court concluded that petitioner proved by clear and
convincing evidence the existence of the following grounds for
termination of mother's parental rights: (1) the child remains a
neglected juvenile; (2) mother willfully left the child in foster
care for more than twelve months without showing to the
satisfaction of the court that reasonable progress under the
circumstances had been made in correcting the conditions which led
to the removal of the child; and (3) mother willfully abandoned the
child for at least six consecutive months preceding the filing of
the petition to terminate rights.
The trial court concluded that petitioner likewise proved the
existence of the following grounds to terminate father's parental
rights: (1) father has not established paternity or otherwise
legitimated the child; and (2) father is incapable of providing
proper care and supervision of the child due to his incarcerationand there is a reasonable probability that such incapability will
continue for the foreseeable future. The trial court concluded
that it is in the best interest of the child to terminate their
parental rights.
Mother and father filed separate notices of appeal on 31 July
2006. After careful review, we affirm the order of the trial court
as to both.
Mother's Appeal
I.
Mother contends the trial court's conclusions of law that
three grounds exist to terminate her parental rights are not
supported by the findings of fact which are based on clear, cogent,
and convincing evidence.
An appellate court's review of a trial court's determination
that sufficient ground(s) exist pursuant to N.C. Gen. Stat. §
7B-1111 to terminate parental rights is twofold: (1) whether the
trial court's findings of fact are supported by clear, cogent, and
convincing evidence; and (2) whether the findings of fact support
the conclusions of law.
In re Allred, 122 N.C. App. 561, 565, 471
S.E.2d 84, 86 (1996). Although mother lists in the record on
appeal assignments of error challenging the sufficiency of the
evidence to support certain findings, she does not bring forward
these assignments of error. Assignments of error to findings offact are deemed abandoned if the assignment of error is not brought
forward and argued in the brief.
In re J.M.W., ___ N.C. App. ___,
___, 635 S.E.2d 916, 919 (2006). Unchallenged findings of fact
“are deemed supported by competent evidence” and are binding upon
this Court.
In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337,
340 (2003).
In this appeal, mother challenges all three grounds upon which
her parental rights were terminated. The trial court found that
(1) the child remains a neglected juvenile pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1) (2005), (2) mother had willfully left the
child in foster care for more than twelve (12) months without
showing to the satisfaction of the trial court that reasonable
progress had been made in correcting the conditions which led to
the removal of the child pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2), and (3) mother had willfully abandoned the child for at
least six (6) consecutive months before the filing of the petition
to terminate rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
A finding of any of the separately enumerated grounds is
sufficient to support a termination.
In re Taylor, 97 N.C. App.
57, 64, 387 S.E.2d 230, 233-34 (1990). Thus, because we find that
mother has violated N.C. Gen. Stat. § 7B-1111(a)(2), we address
only that issue. N.C. Gen. Stat. § 7B-1111(a)(2) permits termination of
parental rights if the “parent has willfully left the juvenile in
foster care . . . 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). To terminate rights on this ground, the court must
determine two things: (1) whether the parent willfully left the
child in foster care for more than twelve months; and if so, (2)
whether the parent has not made reasonable progress in correcting
the conditions that led to the removal of the child from the home.
In re O.C. & O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396,
disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005).
“A finding of willfulness 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). It can be found where a parent voluntarily
leaves a child in foster care for more than twelve (12) months or
where the parent has made some efforts but has not been responsive
toward the efforts of DSS.
Id. at 440, 473 S.E.2d at 398.
Similarly, a parent's prolonged inability to improve his or her
situation, despite some efforts and good intentions, will support
a conclusion of lack of reasonable progress.
In re B.S.D.S., 163
N.C. App. 540, 546, 594 S.E.2d 89, 93 (2004). Because the facts toestablish both of these elements are often intertwined we address
them together.
In the instant case, the trial judge took judicial notice of
all prior orders entered in the matter and incorporated them by
reference. Among those was a May 2005 order in which it was found
that the child had been in foster care for approximately two years.
Thus, the trial judge was correct in concluding that the child had
been in foster care for more than twelve months. Next, the trial
court determined that mother had willfully left the child in foster
care.
The facts clearly establish mother's inability to make
reasonable progress toward correcting the circumstances that led to
the child's removal. In the original order adjudicating the child
as neglected, the findings of fact show that petitioner received a
report on 20 November 2002 indicating that the child was suffering
from “failure to thrive” and that mother was not providing a stable
home. On 21 November 2002, mother and the man with whom she was
living tested positive for the presence of cocaine. The home in
which they were residing was infested with roaches. Other orders
show that the child was diagnosed with having fetal alcohol
syndrome as a result of mother's heavy consumption of alcohol and
cocaine while she was pregnant with the child. Initially mother took positive steps toward regaining custody
of the child. She completed parenting classes and an inpatient
drug rehabilitation clinic in May 2003, and she tested negative for
the presence of drugs on 5 January 2004. However, just seven days
earlier she reported to a hospital emergency room seeking treatment
for lacerations. Her blood alcohol level at 4:30 a.m. on 30
December 2003 was measured at .388. After having tested negative
for drugs, she presented to a hospital emergency room on 4 February
2004 complaining of pain in her right arm. She tested positive for
the presence of cocaine. Her blood alcohol level at 7:30 a.m. on
that date was .276. Eight days later, on 12 February 2004, she
presented again to the emergency room, this time complaining of
pain in her chest and abdomen. At 12:40 p.m. on that date, her
blood alcohol level was .334.
On 17 February 2004 and 9 March 2004, mother met with her
social worker. On both dates mother was asked to undergo drug
screens. Mother failed to follow through with the drug screens.
A representative of New River Mental Health Substance Abuse
Services (“NRMHSA”), where mother was receiving outpatient
treatment, reported in February 2004 that mother had not been seen
“in some time.” Although mother did subsequently report to the
center for a substance abuse assessment on 18 March 2004, she
refused to submit to a drug screen. Mother failed to show for anappointment with NRMHSA on 25 March 2004 and she cancelled an
appointment for 1 April 2004. Mother failed to submit to any drug
screens requested by DSS. Mother's substance abuse counselor
dropped mother from her caseload in December 2005 due to mother's
noncompliance.
Meanwhile, mother failed to obtain suitable housing. In June
2003, mother was approved for a public housing voucher. She failed
to find suitable housing within sixty days and the voucher expired.
She never re-applied for housing assistance. Despite repeated
attempts, the social worker in charge of the case could get in
contact with mother only twice before the 12 April 2004 review
hearing, specifically on 17 February 2004 and 9 March 2004.
Against petitioner's recommendation, mother continued to reside
with a man who also tested positive for the presence of cocaine
when the child was removed from mother's residence. This man's two
children were also removed from the home at the same time. Mother
resided with this man until he was incarcerated in late 2003 due to
drug and alcohol charges.
In a review order entered in open court on 12 April 2004 and
signed on 26 April 2004, the trial court found that “[i]t is not
possible” for the child to be returned to the home within the next
six months due to mother's continued alcohol or substance abuse. As to willfulness, the trial court found that mother's contact
with the child also dwindled. Since December 2004, mother called
petitioner to set up a visit with the child only once, and actually
visited the child only twice, on the dates of 28 January 2005 and
24 March 2005. Mother cancelled scheduled visits on 16 September
2005 and 30 September 2005, citing illness. A review order entered
8 May 2006 and signed 25 May 2006 indicates that mother had visited
the child only once within the prior six months. Mother has not
sent the child gifts, cards, letters, or inquired about the child
on a regular basis.
We hold the foregoing findings of fact support a conclusion
that mother has willfully left the juvenile in foster care for more
than twelve (12) months without a showing of reasonable progress
toward correcting the problems that led to the removal of the
child.
See N.C. Gen. Stat. § 7B-1111(a)(2). Due to her continued
abuse of alcohol and cocaine, mother is unable to parent the child
and to provide a safe home. Although she has made some efforts to
correct the conditions that led to the removal of the child from
her home, these efforts have been sporadic and diminishing. Her
visitations and contacts with the child have also been
significantly reduced, from regular monthly visitations to two
visitations within six months, and none within three months next
preceding the filing of the petition to terminate parental rights.
II.
Mother lastly challenges the trial court's conclusion of law
that it is in the best interests of the child to terminate mother's
parental rights. She argues this conclusion is not supported by
the findings of fact or clear, cogent, and convincing evidence.
“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).
“Action which is in the best interests of the juvenile should be
taken in all cases where 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 ruling 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,
affirmed per curiam, 360 N.C.
165, 622 S.E.2d 495 (2005).
We find no abuse of discretion. Considerations in determining
the child's best interests include: (1) the age of the child; (2)
the likelihood of adoption; (3) the impact in accomplishing 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 relevantconsideration. N.C. Gen. Stat. § 7B-1110(a) (2005). The findings
of fact show that the child was removed from mother's custody when
the child was nineteen months old. The child has been in
petitioner's continuous custody since then and in the same foster
home for an extended period of time. She has bonded with the
foster parents, who desire to adopt her. She is no longer
suffering any lasting effects from fetal alcohol syndrome. She is
doing well in school. In contrast, mother's problems with alcohol
and drug abuse have continued throughout this period.
Father's Appeal
I.
Father argues the trial court erred by terminating his
parental rights on the ground of neglect pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1). The trial court did not terminate father's
rights on this ground, but rather pursuant to N.C. Gen. Stat. § 7B-
1111(a)(5) and (6). Section 7B-1111(a)(6) provides for termination
of parental rights when a parent is incapable of providing for the
proper care and supervision of the child.
Under Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure “[a]ssignments of error not set out in the appellant's
brief, or in support of which no reason or argument is stated or
authority cited, will be taken as abandoned.” N.C.R. App. P.
28(b)(6);
see also In re P.L.P., 173 N.C. App. 1, 9, 618 S.E.2d241, 246 (2005) (where respondent failed to argue or assert
authority in support of certain assignments of error on appeal from
termination proceeding, those assignments held to be abandoned
under Rule 28(b)(6)).
Father has neither articulated an argument, nor provided
citations of authority in support of, his assignment of errors
addressed to the trial court's conclusions that he is unable to
provide proper care and supervision to the child under N.C. Gen.
Stat. § 7B-1111(a)(6).
(See footnote 1)
Consequently, the assignments of error
concerning N.C. Gen. Stat. § 7B-1111(a)(6) are deemed abandoned
under Rule 28(b)(6). When assignments of error are deemed
abandoned, the trial court's findings and conclusions are binding
on appeal.
In re P.L.P., 173 N.C. App. at 9, 618 S.E.2d at 246.
In termination cases, a finding of any of the separately enumerated
grounds is sufficient to support a termination.
In re Taylor, 97
N.C. App. at 64, 387 S.E.2d at 233-34. Thus, in the instant case,
the N.C. Gen. Stat. § 7B-1111(a)(6) ground for termination is
conclusively established, and we need not address father's
arguments concerning the other ground for termination found by the
trial court.
In re P.L.P., 173 N.C. App. at 9, 618 S.E.2d at 246. We have, however, reviewed the alternate ground found by the
trial court to terminate father's parental rights pursuant to N.C.
Gen. Stat. § 7B-1111(a)(5). We find father's appeal with regard to
that issue without merit. The assignments of error pertinent to
this discussion are overruled.
II.
Father next contends the trial court erred by failing to
comply with the requirement of N.C. Gen. Stat. § 7B-1110(a) that an
order be reduced to writing and entered within thirty days after
completion of the termination of parental rights hearing. The
record shows that the hearing was completed on 28 March 2006 but
the order was not filed until 19 July 2006. A court's failure to
enter the order in a timely fashion is not reversible error unless
the appellant can show prejudice.
In re C.J.B. & M.G.B., 171 N.C.
App. 132, 134, 614 S.E.2d 368, 369 (2005). Father has made no
showing of prejudice.
III.
Father lastly contends the trial court erred by failing to
hold a bifurcated proceeding which distinguished between the
adjudication phase and the disposition phase. Although a
proceeding to terminate parental rights involves the foregoing two
stages, we have held that it is not necessary for the court toconduct separate hearings at each stage.
In re White, 81 N.C. App.
82, 85, 344 S.E.2d 36, 38 (1986). We overrule this contention.
IV.
In summary, we hold that the trial court did not error in
terminating the parental rights of mother and in its finding that
the termination was in the best interest of the child. Because
father abandoned a necessary assignment of error for his appeal, we
also uphold the trial court's order terminating father's parental
rights. We similarly find no prejudicial error in the timing of
the trial court's order and no error in failing to hold a
bifurcated trial.
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
Footnote: 1