IN THE MATTER OF:
C.O.A., III Durham County
No. 03 J 209
Assistant County Attorney Cathy L. Moore, for petitioner-
appellee Durham County Department of Social Services.
Wendy Sotolongo, Attorney Advocate, for Guardian ad Litem.
Jeffrey Evan Noecker, for respondent-appellant.
The trial court's findings of fact, which were unchallenged on
appeal, support the trial court's conclusion that grounds exist for
termination of respondent's parental rights under N.C. Gen. Stat.
§ 7B-1111(a)(2). Where a parent seeks reversal due to the trial
court's failure to comply with the provisions of N.C. Gen. Stat. §
7B-1109(a), a generalized assertion of prejudice is not sufficient
to require reversal. The trial court's conclusion that
respondent's parental rights should be terminated was supported by
unchallenged findings of fact and is affirmed.
10. On December 3, 2003, the child was
adjudicated dependent as to the mother.
The Court found the following findings of
fact as to the mother: The mother
suffers from mental and physical health
conditions and has been diagnosed with
bipolar disorder, diabetes and
hypertension. The mother has a history
of neglect and inability to care for her
children; other children have been
removed from her care and have not been
returned. The parents have not kept a
stable home for [the] child; they
relocated twice in six months, moving
from Fairfax, VA to Guilford County, NC,
where they failed to assure the child[']s
school attendance and thereby failed to
assure that the child receive necessary
speech, occupational and physical therapy
at school. They then moved to Durham
with no place to live, ignoring the
special needs of the child. The mother
has a history of no compliance with her
mental health treatment which results in
a cycle of hospitalization, out patientcommitments, no compliance and then new
11. As a result of the adjudication, the mother was ordered to have supervised visits, receive mental health treatment including medication management, obtain and maintain stable housing, and attend and complete a parenting program directed towards increasing her understanding of autism and the special needs of her son; become familiar with the needs of her son and follow all professional recommendations for her son. The mother was provided supervised visitation on a weekly basis for two hours at such times as the mother could be [in] Durham.
12. On August 24, 2004, at a permanency planning hearing, the court found that the mother, , has been unstable in her living situation and has lived with relatives and in shelters in the Washington, DC area. She is attempting to address her mental health issues and her other medical issues. It is unlikely that she will be able to care for her son in the immediate future; however, she is trying. The mother did not appear in court. It was not possible for the child to be returned to the home immediately; or likely that the child would be returned to the home in the next six months. This was due to the child[']s special needs and the needs of the mother. Reunification with the mother remained the permanent plan of Durham DSS.
13. As a result of these findings of fact, the mother was ordered to receive mental health treatment and follow all recommendations for treatment; receive medical treatment and follow all recommendations for her physical health including diabetes care, hypertension care and back care in order to be physically able to care for her son; obtain and maintain safe, stable and affordable housing; shall attend and complete a parenting program directed towards her understanding of Autism andthe special needs of her son; become familiar with the needs of her son and follow all professional recommendations for her son. The mother was provided supervised visitation on a weekly basis for 2 hours at such times as the mother could be in Durham.
14. At various review and permanency planning hearings, similar orders were entered.
15. Substance abuse issues were not identified as problems for the mother prior to the filing of the motion for termination of parental rights. However, the mother's mental assessment from January 10, 2006, admitted into evidence, indicates that [she] admitted to a need to work on substance abuse issues and that she had been clean for three (3) weeks and was currently on probation for a DUI. She was diagnosed with Bi-polar Disorder Most Recent Episode Depressed, Severe, with Psychotic features; Panic Disorder without Agoraphobia; and Polysubstance Dependence.
16. DSS has provided the mother with financial assistance to come to Durham to see the child and to attend the court hearings, except for the last court date.
17. The mother was continuing with her regular therapy and case management services, including substance abuse groups and had consistent attendance up to May 2006. It is unknown what, if any, her attendance was after that time. The mother attended parenting classes that specialize in the care of autistic children.
18. Since the child has been in foster care the mother has had numerous residences and has been unable to establish stability in any of them. She obtained housing in October 2005. An interstate home study was requested but not completed and it is unknown whether or not the mother will be able to maintain independent living.
19. The child, , is diagnosed as severely/profoundly developmentally delayed and severely autistic. He is a child, who requires great stability, routine and structure in order to manage. At the time, that the child, , came into foster care, he was 6 years old, not potty-trained, unable to speak and eating a very limited variety of foods. He has been at the same foster home since November 7, 2003. Since being at this foster home, he has become potty-trained, can speak some words and uses a picture board to communicate at home. He can now dress himself, pour himself juice and fix a snack. He can follow directions. He has stopped biting himself.
20. The mother testified and the Court finds that the mother takes medication for bi- polar disorder and for depression; that she is busy in Washington, DC. [sic], with treatment, medication, and group appointments. The Court commends her for trying to get better, but finds that her needs fill her time, and she does not have sufficient time to meet the needs of the child. The mother has made some progress, but not enough to correct the conditions which led to the removal of the child, despite having had an additional eight months since the filing of the motion for termination (at twenty- five months) to show reasonable progress.
21. The mother moved to Washington, D.C. [sic], in December, 2003, and did not notify DSS of her whereabouts for some time. Durham DSS social worker, Elizabeth Dondero, attempted to assist the mother in finding housing and accessing services in Durham both before and after the mother chose to move to Washington, DC. She did not obtain housing until a month before the motion for termination was filed.
23. The mother has not visited the child regularly, despite DSS making funds available from [the child's] SSI accountfor her to do so. The mother visited with the child on November 18, 2003, November 26, 2003, December 3, 2003, March 2, 2004, March 31, 2004, August 2, 2004, April 19, 2005. [sic] (when visits changed to monthly), May 3, 2005, May 31, 2005, July 5, 2005, August 2, 2005, in October 2005, and before the court hearing on March 30, 2006. The mother was unable to attend some visits due to her own treatment needs. The child hugs and kisses the mother during the visits that they have had and regresses after visits.
25. The Court finds that grounds exist to terminate the mother's parental rights in that the mother has willfully left the child in foster care for over twelve months (twenty-five months to the filing of the motion to terminate parental rights) 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 child.
Although respondent made some attempt to regain custody of C.O.A., she has failed to show reasonable and positive progress. The findings of fact show that she continues to suffer from mental and physical illnesses. Her living arrangements are unstable. Further, she has not made positive overtures toward forming a familial relationship with C.O.A. Extremely limited progress is not reasonable progress. Nolen, at 700, 453 S.E.2d at 224-25. We hold that these findings of fact support the trial court's conclusion that grounds existed to terminate respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(2).
In her third argument, respondent contends the trial court's failure to timely hold a hearing on the motion to terminateparental rights in accordance with N.C. Gen. Stat. § 7B-1109(a) constitutes reversible error. We disagree.
N.C. Gen. Stat. § 7B-1109 provides in pertinent part:
The hearing on the termination of parental rights shall be conducted by the court sitting without a jury and shall be held in the district at such time and place as the chief district court judge shall designate, but no later than 90 days from the filing of the petition or motion unless the judge pursuant to subsection (d) of this section orders that it be held at a later time.
N.C. Gen. Stat. § 7B-1109(a) (2006). N.C. Gen. Stat. § 7B-1109(d) provides that:
The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including any reports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances 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) (2006). This Court has held that in order to require the reversal of a trial court's order due to a violation of the time requirements of N.C. Gen. Stat. § 7B-1109(a), a respondent must demonstrate prejudice resulting from the delay. In re S.W., 175 N.C. App. 719, 722, 625 S.E.2d 594, 596, disc. review denied, 360 N.C. 534, 635 S.E.2d 59 (2006). Prejudice must be appropriately articulated. In re S.N.H., 177 N.C. App. 82, 86, 627 S.E.2d 510, 513 (2006). Here, the motion to terminate respondent's parental rights was filed on 2 November 2005, and the initial hearing on the motion was held 30 March 2006, outside the 90 days specified in N.C. Gen. Stat. § 7B-1109(a). Respondent has not argued any specific prejudice that she suffered. Respondent makes only a generalized statement in her brief that the lives of [respondent], her son, and the foster parents were all negatively impacted by the uncertainty of the outcome of the hearing. Such a generalized statement is insufficient to appropriately articulate prejudice. See S.N.H., at 86, 627 S.E.2d at 513-14. In addition, respondent requested a continuance which was granted and further delayed the hearing. See In re D.J.D., 171 N.C. App. 230, 242-43, 615 S.E.2d 26, 34-35 (2005) (no prejudice demonstrated where respondent requested continuance which delayed hearing an additional sixty- eight days beyond the statutory deadline). Since respondent has not appropriately articulated any prejudice, we hold that the order terminating parental rights should not be reversed based solely on the failure to conduct a hearing within 90 days. This assignment of error is without merit.
In her fourth argument, respondent contends the trial court erred by concluding that termination of her parental rights was in the best interests of her child. We disagree.
In determining whether terminating the parent's rights is in the juvenile's best interest, the trial court shall consider the following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2006). Such a determination is within the trial court's discretion, and will only be reviewed on appeal for abuse of that discretion. In re C.L.C., 171 N.C. App. 438, 448, 615 S.E.2d 704, 709 (2005), aff'd per curiam 360 N.C. 475, 628 S.E.2d 760 (2006).
To support its determination that it was in the best interests of C.O.A. to terminate respondent's parental rights, the trial court made the following findings of fact:
40. The child is now nine years old and is young enough to benefit from the stability of adoption.
41. The foster parents want to adopt the child and have been designated by DSS as prospective adoptive parents.
42. Termination of parental right is necessary in order to effectuate the permanent plan of adoption and adoption is the most permanent plan available for the child.
43. There is a display of love and affection between the mother and the child; however the mother does not consistently see the child and choose [sic] to move to Washington, DC, which has impacted herability to regularly visit the child. The bond between the mother and child is not sufficient to override the other considerations.
45. The child and the foster parents have a
loving relationship. The foster parents'
daughter is attached to [the child] and
wants him to be a member of their family.
The child has lived with the foster
family (prospective adoptive family) for
almost three years and has thrived and
grown under their care.
46. The foster mother has wor[k]ed at the Murdock Center for twelve (12) years which the Court takes judicial notice of as a hospital for mentally disabled children. She has extensive knowledge and experience in the needs of a child with [this child's] disabilities.
These findings of fact are unchallenged and are therefore binding on appeal. Clark, at 83 n.5, 582 S.E.2d at 662 n.5. Based upon these findings of fact, we discern no abuse of discretion in the trial court's conclusion that the termination of respondent's parental rights was in the best interests of C.O.A. See C.L.C., at 448, 615 S.E.2d at 709-10 (upholding termination of parental rights where mother failed to maintain suitable housing and did not establish a familial relationship with the child). This assignment of error is without merit.
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