Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1626

NORTH CAROLINA COURT OF APPEALS

Filed: 15 May 2007

IN THE MATTER OF:

C.O.A., III                        Durham County
                                No. 03 J 209
        

    Appeal by respondent from order entered 18 August 2006 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 23 April 2007.

    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.

    STEELMAN, Judge.

    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.

Facts
    On 16 September 2003, the Durham County Department of Social Services (“DSS”) filed a juvenile petition alleging that C.O.A. was neglected and obtained custody by non-secure custody order. The trial court adjudicated C.O.A. a neglected juvenile as to respondent by order entered 4 January 2004, which was subsequently amended to reflect that C.O.A. was adjudicated a dependent juvenile rather than neglected as to respondent, the mother of C.O.A. By a separate order, the trial court adjudicated C.O.A. dependent as to the father.
    On 24 August 2004, a permanency planning review hearing was held at which respondent did not appear. The court ordered the permanent plan of care be reunification with respondent and a concurrent plan of custody with a court appointed care giver. The trial court entered a review order on 3 January 2005, in which it concluded that “[t]ermination of parental rights is not appropriate at this time as the mother is on a waiting list for reunification housing and is cooperating with her case manager to become a parent to her son. If [respondent] does not maintain this placement at the homeless shelter and subsequently at the reunification housing program, then the appropriateness of terminating parental rights may need to be considered.”
    On 19 September 2005, the trial court held a permanency planning review hearing. The trial court found that it was not possible to return C.O.A. to the home of the mother either immediately or in the next six months because she was homeless andher mental health and physical needs prevented her from being able to provide appropriate care for a special needs child. On 2 November 2005, DSS filed a motion to terminate parental rights. After holding hearings in March, April, June and July of 2006, the trial court entered an order terminating respondent's parental rights based on the statutory grounds set forth in N.C. Gen. Stat. § § 7B-1111(a)(2) and (a)(9) . Respondent appeals.
Standard of Review
    Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists.” In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). “If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.” Id. at 98, 564 S.E.2d at 602. 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 per curiam, 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).
Analysis
    In her first argument, respondent contends the trial court erred in concluding that grounds existed to terminate her parental rights. We disagree.
    Although the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § § 7B-1111(a)(2) and (a)(9) to terminate respondent's parental rights, we find it dispositive on appeal that the evidence is sufficient to support termination of her parental rights under N.C. Gen. Stat. § 7B-1111(a)(2). See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one statutory ground is sufficient to support the termination of parental rights).
    Under N.C. Gen. Stat. § 7B-1111(a)(2), a trial court may terminate parental rights on the ground 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 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). The willful leaving of the child is “something less than willful abandonment” and “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). A finding of this ground may be made when the parent has made some attempt to regain custody of the child but has failed to show reasonable and positive progress. In re Nolen, 117 N.C. App. 693, 699-700, 453 S.E.2d 220, 224-25 (1995).    Respondent does not bring forward her assignments of error challenging the trial court's findings of fact. Findings of fact not assigned as error or argued on appeal are deemed to be supported by sufficient evidence, and are binding on appeal. N.C. R. App. P. 28(b)(6) (2006); see also In re Clark, 159 N.C. App. 75, 83 n.5, 582 S.E.2d 657, 662 n.5 (2003). The trial court made the following findings of fact in support of its conclusion to terminate respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(2):
        8.     The child has been in the custody of the Durham County Department of Social Services (hereinafter Durham DSS) since September 16, 2003. The child has remained continuously in foster care up to the hearing on this date.

        ...

        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 hospitalizations.”

        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.

Conclusion
    Because we hold that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) to terminate respondent's parental rights, we decline to address her second argument regarding the other grounds for termination contained in the trial court's order. See Pierce,at 261, 312 S.E.2d at 903. Respondent's termination of parental rights in the minor child C.O.A. is affirmed.
    Remaining assignments of error listed in the record but not argued in respondent's brief are deemed abandoned. N.C.R. App. P. 28(b)(6) (2007).
    AFFIRMED.
    Judges GEER and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***