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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 October 2007
IN THE MATTER OF:
No. 05 J 280
Appeal by respondent from order entered 23 February 2007 by
Judge Lawrence C. McSwain in Guilford County District Court. Heard
in the Court of Appeals 20 August 2007.
Office of the Guilford County Attorney by Deputy County
Attorney James A. Dickens for petitioner-appellee.
Robert W. Ewing for respondent-appellant.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett for
guardian ad litem.
The evidence supported the trial court's findings of fact
pertaining to the ground for termination set forth in N.C. Gen.
Stat. . 7B-1111(a)(2). These findings in turn support the trial
court's conclusion of law that grounds existed for termination of
I. Factual Background
Respondent is the mother of J.A.C. (child), who initially came
into the custody of the Guilford County Department of Social
Services (DSS) on 15 March 2005. The court adjudicated the child
as a dependent juvenile on 27 April 2005 based upon the father'ssubstance abuse, domestic violence between the parents, and the
parents' inability to provide the child with basic needs of food,
clothing, and shelter. Respondent made some progress in complying
with her reunification plan. However, she continued to maintain a
relationship with the child's father, who had committed acts of
domestic violence upon her, and was unable to obtain stable
housing. Due to her young age and lack of family support in North
Carolina, respondent agreed to a plan which provided that she move
to Maryland and reside with her aunt.
Respondent regained custody of the child on 16 December 2005
and moved to Maryland with the child. However, respondent
continued to communicate with the child's father. After engaging
in an argument with an aunt's boyfriend concerning the child's
father, respondent took $300 in cash wired to her by the child's
father and returned to North Carolina after staying only two days
in Maryland. Upon her return to North Carolina, respondent had no
place to stay and she had to rely upon others and DSS to assist her
in finding shelter for herself and the child.
On 15 March 2006, respondent became involved in a heated
argument with the child's father. The police responded to a
disturbance call, and arrested both respondent and the child's
father. DSS took custody of the child, who was with respondent at
the time of the disturbance. After a few days, respondent was
released from jail and she visited the child on two occasions
before being incarcerated again on 30 April 2006 on felony charges.
The charges and resulting incarceration were caused by hercontinued association with the child's father. Respondent was
repeatedly advised not to continue her relationship with the
child's father because it was not in the child's best interest.
Respondent remained incarcerated through the date of the
termination hearing. The child's father was incarcerated in the
North Carolina Department of Correction in October 2006. The
child's father has convictions of felony possession of cocaine,
possession with intent to sell or deliver marijuana, and
misdemeanor possession of marijuana.
On 18 September 2006 DSS filed a petition to terminate the
parental rights of respondent and J.A.C.'s father. The court
conducted a hearing on the petition commencing on 23 January 2007.
At the conclusion of the hearing, the court entered an order
terminating both parents' parental rights on the grounds: (1) they
had neglected the child pursuant to N.C.G.S. § 7B-1111(a)(1) ; (2)
they willfully left the child in foster care or out of home
placement for more than 12 months without showing to the
satisfaction of the court that reasonable progress under the
circumstances had been made in correcting the condition which led
to the removal of the child pursuant to N.C.G.S. . 7B-1111(a)(2) ;
(3) for a continuous period of six months next preceding the filing
of the petition, they willfully failed to pay a reasonable portion
of the cost of care for the juvenile although physically and
financially able to do so pursuant to N.C.G.S. . 7B-1111(a)(3) ; and
(4) they willfully abandoned the child for at least six consecutive
months immediately preceding the filing of the petition pursuant toN.C.G.S. . 7B-1111(a)(7) . Respondent appeals.
II. Standard of Review
Termination of parental rights is a two-step process. In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001)
(citation omitted). In the first phase of the termination hearing,
the petitioner must show by clear, cogent and convincing evidence
that a statutory ground to terminate exists. In re Young, 346 N.C.
244, 247, 485 S.E.2d 612, 614 (1997) (citation omitted). The trial
court must make findings of fact which are supported by this
evidentiary standard, and the findings of fact must support the
trial court's conclusions of law. In re Shermer, 156 N.C. App.
281, 285, 576 S.E.2d 403, 406 (2003). The standard of review in
termination of parental rights cases is whether the findings of
fact are supported by clear, cogent and convincing evidence and
whether these findings, in turn, support the conclusions of law.
In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004)
(quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758
(1984)). The trial court's conclusions of law are fully
reviewable de novo by the appellate court. Mann Contr'rs, Inc. v.
Flair with Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 775,
522 S.E.2d 118, 121 (1999) (citation omitted).
Once the trial court has found a ground for termination, the
court then considers the best interests of the child in making its
decision on whether to terminate parental rights. Blackburn, 142
N.C. App. at 610, 543 S.E.2d at 908. We review this decision on an
abuse of discretion standard, and will reverse a court's decisiononly where it is manifestly unsupported by reason. Clark v.
Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
III. Willfully Leaving Child in Foster Care
Respondent contends that the trial court erred in terminating
her parental rights based upon willfully leaving the child in
placement outside the home for more than twelve months.
contends the court's findings of fact were not supported by the
evidence and that, in turn, the findings do not support this
conclusion of law. We disagree.
In considering the ground for termination under
the trial court must go through a two-part
analysis and determine: (1) that a child has been willfully left by
the parent in foster care or placement outside the home for over 12
months; and (2) as of the time of the hearing, that the parent has
not made reasonable progress under the circumstances to correct the
conditions which led to the removal of the child. In re O.C. &
O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (2005), cert.
denied, 360 N.C. 64, 623 S.E.2d 587 (2005). Willfulness under this
section means something less than willful abandonment, and does
not require a finding of fault by the parent. In re Oghenekevebe,
123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996) (citation
Respondent does not challenge the court's finding of fact in
paragraph 13(a) which states:
Prior to the filing of the Petition for
Termination of Parental Rights, the juvenile
was in foster care from March 15, 2005 to
December 16, 2005, then from March 15, 2006 toSeptember 18, 2006. This was a total period
of 15 months.
Findings of fact not challenged on appeal are binding on the
appellate court. State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670,
673 (1984). There is no requirement that the period of foster care
be twelve continuous months, In re Taylor, 97 N.C. App. 57, 62, 387
S.E.2d 230, 232 (1990)
, and we hold this element of
Respondent contests the conclusion of law on the grounds that
she did not willfully leave her child in foster care for twelve
months because she was incarcerated for 4 ½ months prior to the
termination hearing. Specifically, respondent contends that the
court's findings in paragraphs 15(b) and 13(f) of the termination
order were made in error. Paragraph 15(b) of the termination order
states [t]he Respondent-mother made choices and committed acts
that caused her to be placed in jail rather than to be an available
parent for her child. Paragraph 13(f) states [b]oth Respondent-
parents committed acts which caused them to be placed in jail and
deprived them of the opportunity to work toward reunification with
While our courts have found that incarceration alone is
insufficient to show willful abandonment, they have also rejected
the argument that periods of incarceration preclude such a finding.
In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987)
(rejecting the argument that periodic incarcerations precluded a
finding that respondents' leaving their children in foster care was
Respondent relies on In re Shermer to assert that lackof progress cannot be willful when she was incarcerated. Shermer
is distinguishable from the present case. The Respondent in
Shermer was incarcerated for the entire twelve months prior to the
filing of a termination petition. The court in Shermer noted that
the father had no involvement with the events that led to the
children's removal[.] Shermer, 156 N.C. App. at 290, 576 S.E.2d
In contrast, respondent in the instant case was an active
participant in the circumstances leading to the child's removal
from her custody. Her incarceration was the direct result of her
own criminal conduct arising from her continued association with
the child's father, despite being advised repeatedly that it was
not in the child's best interest to continue the relationship. The
social worker, Erin Calighan, testified that respondent admitted
that the father hit her or knocked her down.
The court found that
the affiliation between respondent and the child's father was a
direct cause of her incarceration in April 2006.
The court's findings demonstrate that respondent had not made
reasonable progress in correcting the conditions which led to the
removal of J.A.C. from her care.
The court noted that respondent
only completed one item of her service agreement. When asked about
her attempts to contact her son while she had been in jail,
respondent testified that she had not sent anything to him,
including cards or notes. She did not testify about any other
attempts to contact her son, and did not inquire about him to
visitors who came to the jail. A court may find that a parent has failed to show reasonable
and positive progress even when the parent has made some attempt to
regain custody of the child. In re Nolen, 117 N.C. App. 693,
699-700, 453 S.E.2d 220, 224-25 (1995).
In the present case, even
though the respondent made some progress in the year preceding the
filing of the termination petition, the evidence supports the trial
court's finding of fact that she did not make sufficient progress
in correcting conditions that led to the child's removal, and that
this failure was willful.
This argument is without merit.
As the trial court is in the best position to weigh the
evidence, the role of this Court is strictly limited to
determining whether the trial judge's underlying findings of fact
are supported by competent evidence[.] State v. Hughes
, 353 N.C.
200, 208, 539 S.E.2d 625, 631 (2000) (quoting State v. Cooke
N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). Where the findings of
the court are supported by competent evidence, they are binding on
appeal, despite the existence of evidence to the contrary. In re
, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985)
We hold that there was sufficient evidence to
support the trial court's finding that respondent's
limited progress was not reasonable progress
. We further hold
the trial court's findings were sufficient to support its
conclusion that respondent's lack of progress justified termination
of her parental rights under Section 7B-1111(a)(2). Respondent has
not challenged the court's determination of the child's bestinterests, and the court's termination of respondent's parental
rights is affirmed.
Having concluded that one ground for termination of parental
rights exists, we need not address the additional grounds found by
the trial court. See In re Brim
, 139 N.C. App. 733, 743, 535 S.E.2d
367, 373 (2000).
Judges JACKSON and STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***