Return to
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-544


Filed: 16 October 2007

                                 Person County
        L.W.                        No. 04 J 24

    Appeal by respondent from order entered 21 February 2007 by Judge Mike Gentry in Person County District Court. Heard in the Court of Appeals 4 September 2007.

    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.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***