IN THE MATTER OF:
Person County
L.W. No. 04 J 24
Thomas L. Fitzgerald, for petitioner-appellee Person County
Department of Social Services.
Susan J. Hall, for respondent-appellant.
Julie A. Ramsey, for Guardian ad Litem-appellee.
CALABRIA, Judge.
Respondent appeals from the trial court's 21 February 2007
order concluding that grounds existed and it was in the best
interests of the minor child, L.W., to terminate her parental
rights. We affirm.
Respondent is the mother of L.W. On 17 September 2001, Person
County Department of Social Services (“DSS”) filed a petition
alleging L.W. was a dependent juvenile. L.W. was placed in DSS
custody at that time, but was returned to respondent in December
2001 on a trial basis after respondent improved with assistance
from DSS. Respondent regained custody and the court dismissed the
petition on 19 March 2002. On 23 April 2002, DSS filed a second juvenile petition
alleging neglect primarily due to unsanitary and unsafe conditions
in respondent's home. On 22 May 2002, the trial court adjudicated
L.W. neglected and transferred custody to DSS. The trial court
ordered respondent to refrain from using alcohol or illegal drugs,
as well as from associating with known drug dealers or users. In
addition, respondent was ordered to attend mental health counseling
and other counseling sessions arranged by DSS, and to maintain a
clean and tidy house. Over the course of several review periods,
respondent's compliance with these orders was sporadic, with some
improvements occurring on a limited basis just before court
hearings. The trial court allowed DSS to cease its attempts to
reunify L.W. with respondent by order entered 21 April 2004, and
the permanent plan was changed to adoption.
On 15 April 2004, DSS filed a petition for termination of
parental rights based on neglect pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) (2003) and willfully leaving L.W. in foster care for
more than twelve months without making reasonable progress to
alleviate the conditions which led to his removal from the home
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2003). On 27
September 2004, the trial court terminated respondent's parental
rights on both grounds. Respondent appealed.
On 3 January 2006, this Court reversed and remanded the case
for appointment of a guardian ad litem for respondent and ordered
a new hearing. In re L.W., 175 N.C. App. 387, 623 S.E.2d 626
(2006). On 11 October 2006, the trial court appointed a guardian ad
litem for respondent. On 21 February 2007, as a result of new
evidentiary hearings held in November and December of 2006, the
trial court issued a new order terminating respondent's parental
rights on the grounds of neglect, dependency, and failure to make
reasonable progress while L.W. remained in foster care for more
than twelve months. Respondent appealed.
Respondent argues the trial court abused its discretion by
finding three grounds for termination since insufficient evidence
failed to support the grounds. We disagree.
There are two phases in hearings to terminate parental rights:
(1) the adjudication phase, governed by N.C. Gen. Stat. § 7B-1109
(2005); and (2) the disposition phase, governed by N.C. Gen. Stat.
§ 7B-1110 (2005). In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d
144, 146 (2003). The petitioner has the burden of proving by
clear, cogent and convincing evidence that at least one ground for
termination exists. N.C. Gen. Stat. § 7B-1111(b) (2005); In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). The
standard of review on appeal is whether the trial court's findings
of fact are supported by clear, cogent, and convincing evidence and
whether the conclusions of law are supported by the findings of
fact. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000), disc. review denied and appeal dismissed, 353 N.C. 374, 547
S.E.2d 9 (2001). Findings of fact supported by competent evidence
are binding on appeal even though there may be evidence to the
contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317,320 (1988). A trial court only needs to find one statutory ground
for termination before proceeding to the dispositional phase of the
hearing. N.C. Gen. Stat. § 7B-1111(a) (2005); In re Shermer, 156
N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). In the disposition
phase, the trial court determines whether termination of parental
rights is in the best interests of the child. Blackburn, 142 N.C.
App. at 610, 543 S.E.2d at 908.
Parental rights may be terminated when “[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) (2005). Willfulness
does not imply fault on the part of the parent, but may be
established “'when the respondent had the ability to show
reasonable progress, but was unwilling to make the effort.'” In re
O.C. & O.B., 171 N.C. App. 457, 465, 615 S.E.2d 391, 396, disc.
review denied, 360 N.C. 64, 623 S.E.2d 587 (2005) (quoting In re
McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001))
(internal citations omitted). Even if a parent has made some
efforts to regain custody, a trial court may still find that he or
she willfully left the child in foster care under section 7B-
1111(a)(2). Id. (quoting In re Nolen, 117 N.C. App. 693, 699, 453
S.E.2d 220, 224 (1995))(internal citations omitted).
The main reason for removing L.W. from respondent's home in
2002 was respondent's inability to keep unsafe items beyond L.W.'sreach and maintain a suitable living environment. Other concerns
at that time included respondent's compliance with her mental
health treatment and allegations that she allowed L.W. to cross the
street without supervision when he was approximately fifteen months
old. In May 2002, custody of the minor child was granted to DSS
and L.W. remained in foster care since June 2002. Respondent
concedes L.W. has been left in placement outside the home for at
least twelve months, but argues DSS failed to show respondent acted
willfully in leaving L.W. in foster care. In particular,
respondent contends DSS failed to show she had the ability to
improve following the court's orders and DSS failed to meet its
burden of proof by not calling her therapist to testify about
respondent's mental health status. We disagree.
In the order terminating parental rights, the trial court
found as fact that DSS made a wide range of services available to
respondent. Specifically, the services offered included but were
not limited to educational services, financial assistance,
transportation, in-home services, case management services, and
mental health services. Respondent refused some of these services
after L.W. was returned to her custody in April 2002. She also
failed to keep her home safe and clean as required. In addition,
she refused to comply with court orders that she refrain from using
alcohol and avoid contact with known drug dealers and users. Not
only did she fail to comply with the court's order when she resumed
a relationship with a drug dealer, but she subsequently married him
and two children were born. The trial court also foundrespondent's attendance was sporadic at mental health therapy and
anger management sessions. In addition, she refused to allow DSS
access to information regarding her diagnosis, lack of compliance
with and continuing need for mental health treatment. Without such
information, DSS could not properly assess whether L.W. would be
safe in respondent's care. Other pertinent findings include
respondent's refusal to consistently take medication for her
emotional problems, failure to finish a vocational rehabilitation
program, failure to finish a GED program, loss of some financial
assistance after selling an appliance she received through that
assistance, and finally, failure to adequately keep her home neat
and clean. Moreover, although respondent was referred for in-home
services on six occasions, she felt she did not have the
opportunity to raise her son. The court found she was given
numerous opportunities to do so.
A review of the record and transcript reveals sufficient
competent evidence to support the trial court's findings of fact
that respondent was able to comply with both the court orders and
DSS requirements but was unwilling to do so. As part of the May
2002 adjudication order, respondent was ordered to undergo mental
health counseling, refrain from consuming alcohol, refrain from
associating with drug dealers or users, keep her house neat and
clean, and obtain her GED so that she could meet the requirements
to obtain employment that would provide some degree of financial
stability and independence. These requirements remained mostly
unchanged throughout subsequent review orders. Respondent was alsoordered to attend anger management and parenting classes and to
follow DSS' recommendations. Prior court orders, and particularly
the testimony from DSS social worker Stacy Hill and Intensive
Family Preservation social worker April Duckworth, provided the
bulk of the evidence regarding respondent's progress.
Specifically, the record contains evidence of her failure to find
and maintain employment, complete her GED program, attend required
classes, accept certain services, maintain a suitable living
environment, comply with numerous court orders, and follow through
on mental health treatment by attending therapy sessions and taking
her medication. Evidence was presented indicating respondent had
the ability to perform the tasks required but she was unwilling to
do so. Respondent's own testimony revealed her belief that it
might be several more years before she would obtain her GED.
Although some evidence was presented regarding improvements
made by respondent, such as attending anger management and
parenting classes, and progressing in her housekeeping skills,
limited progress is not necessarily enough to show that she made
reasonable progress required by N.C. Gen. Stat. § 7B-1111(a)(2).
See Nolen, 117 N.C. App. at 699-700, 453 S.E.2d at 224-25. The
failure to meet these requirements was especially damaging since
several years elapsed without reasonable progress. Moreover,
respondent's compliance with court orders improved just prior to
court hearings, but regressed after hearings were completed.
Sporadic improvements motivated primarily by court hearings do not
constitute reasonable progress. We are also not persuaded by respondent's argument that DSS
should have called her therapist as a witness at trial to testify
about her mental health. Respondent failed to meet her obligation
to maintain mental health treatment, and failed to assist DSS in
determining her progress by refusing to allow access to limited
information about her mental health status. DSS was required to
show respondent failed to make reasonable progress on the goals set
for her to remedy the conditions leading to the child's removal,
and DSS presented sufficient evidence.
We therefore hold the evidence was sufficient to support the
trial court's findings which, in turn, were sufficient to support
the order terminating parental rights. Since we find the
termination was proper based upon respondent willfully leaving the
minor child in foster care for more than twelve months without
making reasonable progress, we need not address respondent's
further arguments regarding the remaining grounds for termination
based on neglect and dependency. Shermer, 156 N.C. App. at 285,
576 S.E.2d at 406. Likewise, we need not reach the issue raised by
DSS in its cross-assignment of error as to whether respondent's
revocation of relinquishment of her rights to L.W. was valid or
invalid. Accordingly, we affirm the trial court's order
terminating respondent's parental rights.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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