IN THE MATTER OF:
S.M.S. Nos. 06 JT 447
P.J.S. 06 JT 448
Respondent father appeals from an order terminating his parental rights to S.M.S. and P.J.S. (See footnote 1) On appeal, respondent primarily argues that the evidence he presented at trial justifies reversal of the trial court's order terminating his parental rights. Under our standard of review, however, we consider only whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support the conclusions of law. We cannot accept respondent's invitation that we reweigh the evidence. Because we hold, under our standardof review, (1) that the trial court properly concluded that respondent failed to make reasonable progress over three years in correcting the conditions that led to the removal of his children, and (2) that the court did not abuse its discretion in finding that termination of parental rights is in the children's best interests, we affirm.
26. That according to the psychologist, Larry
Yarbrough, [respondent] participated in
therapy with him for a period of time and
made progress, though in his opinion,
[respondent] did not attend therapy on a
regular and consistent basis. He missed
several scheduled visits either by simply
not showing or calling to cancel, and
then after rescheduling, not showing for
the subsequently rescheduled visit.
Substance abuse, anger, grief and
depression were issues being addressed.
. . . .
29. That [respondent] has not obtained employment or any other source of stable income during the entire time the children have been in the custody of DSS. He was initially denied disability and never demonstrated to the satisfaction of the court that he was unable to earn some income with which to contribute to the cost of the care of the children. The father has offered various explanations for his failure to secure employment.
Respondent challenges portions of each of these findings of fact, except for finding of fact 23, as unsupported by the evidence. We disagree.
With respect to finding of fact 20, respondent does not contest that his children have special needs, especially Sarah. He contends, however, that the fact he attended parenting classes precludes this finding. With respect to finding of fact 22, respondent challenges only the court's assertion that he had not demonstrated that he was able to incorporate anything he learned in NOVA, pointing to evidence that he had separated from the children's mother and had a healthy and stable relationship with his new girlfriend.
These arguments overlook the special needs of the children as a result of their experience with sexual abuse, domestic violence, and the death of their sister. The focus of finding of fact 20 was on respondent's failure to "equip himself to understand or meet" these special needs. The court's finding is supported by testimony of a DSS social worker that when she discussed the sexual abuse of Sarah by her half-brother, respondent never wavered from his conviction that the allegations of abuse were untrue. Consistent with this belief, he continued to live in the same home as the perpetrator of the sexual abuse on Sarah. A social workertestified that although for a month he lived with his sister _ a residence appropriate for the children _ he chose to move back in with his father even though DSS explained to him that his children could not live in the same house as the person who had sexually abused Sarah. Respondent also does not contest the portion of finding of fact 22, supported by a report from NOVA, that NOVA continued to have concerns about respondent's home life since he continued to live in a "very dysfunctional household." This evidence reveals, as found by the trial court, a lack of comprehension and ability to help Sarah and Peter with the "special needs" resulting from sexual abuse, domestic violence, and their sister's death.
Additionally, a DSS social worker testified that respondent was unable to implement what he learned from parenting classes during visitation with the children. Specifically, Fleury testified that DSS would often have to "redirect" respondent from engaging in inappropriate conversation in front of the children, including mentioning the drowning death of their sister, bringing up their mother, and swearing. A social worker assistant and a case worker similarly testified about respondent's making inappropriate statements in front of the children. A DSS social worker also pointed out that sometimes she would have to prompt respondent to actually engage with the children during visitation.
In addition, respondent does not specifically contest the trial court's finding that NOVA "continued to have concerns [that] respondent . . . was still unable to demonstrate appropriateparenting decisions and judgment." With respect to parenting decisions, the evidence indicated that respondent was detained with his son by law enforcement on allegations that they had stolen beer together.
With respect to finding of fact 21, we believe that this general finding of fact is supported by the more specific findings of fact 20 and 22, which are in turn supported by the evidence. Nonetheless, respondent contends that his failure to demonstrate that he could meet the children's needs was due to "the fact that he was not given the opportunity to apply his learned skills with unsupervised visitation."
We believe this argument addresses only the weight and credibility of the evidence, matters to be decided by the trial judge and not on appeal. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (holding that it is the responsibility of the trial judge to "weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom"). In any event, we fail to see how visitation out of the sight of a social worker would better demonstrate the father's ability to apply parenting skills for his special needs children when the father behaved inconsistently with those needs while observed by the social worker. We, therefore, hold that findings of fact 20, 21, and 22 are supported by clear, cogent, and convincing evidence. In regard to finding of fact 24, respondent first contends that the trial court erred in relying upon testimony about his being caught with his son trying to steal beer. Respondent did not, however, challenge finding of fact 23 in which the court found that in "September 2005, the father was detained by law enforcement with his adult son for stealing beer." This finding is binding on appeal and supports finding of fact 24. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Further, respondent does not challenge testimony that (1) respondent admitted to a social worker that he carried the beer up to the store counter (in his jacket), and (2) he did not deny purchasing the beer for his own consumption.
In rebuttal to finding of fact 24, respondent points to the testimony of his therapist, Larry Yarbrough, that respondent had made excellent progress in his sobriety. The trial court was, however, responsible for determining what weight to give Mr. Yarbrough's testimony and, in finding of fact 27, specifically explained why it did not find Mr. Yarbrough's opinion of respondent's progress compelling: "Mr. Yarbrough based much of his assessment on his observations and the self report of [respondent]. Mr. Yarbrough further testified and this court finds that [respondent] did not report to Mr. Yarbrough the incident regarding stealing the beer. Mr. Yarbrough further testified that had [respondent] reported that incident it could have affected his opinion as to the level of progress made by [respondent]." Notably, respondent did not assign error to finding of fact 27. Finally, respondent challenges finding of fact 24's assertion that "he never provided documentation of any NA/AA meeting attendance and was never able to show to the satisfaction of the court he was maintaining a sober lifestyle." Respondent counters that "[t]he fact that he did not provide certificates of attendance from the AA meetings does not indicate that he failed to attend. The petitioner had the burden of proof at this trial, after all." This argument disregards the requirement in respondent's case plan _ incorporated in several orders _ that respondent provide documentation of his attendance at NA/AA meetings. Given the confidentiality surrounding such meetings, a requirement of documentation is a reasonable means for verifying that a parent is being truthful about his or her attendance. The court is not required to accept on faith a parent's assertions of compliance.
Respondent also disputes the trial court's determination in finding of fact 26 that Mr. Yarbrough indicated in his testimony that respondent "did not attend therapy on a regular and consistent basis." We believe that the finding is a fair interpretation of Mr. Yarbrough's testimony that respondent attended about half of his appointments _ both in 2005 and 2006 _ and that respondent's attendance was not as "regular as [he] would like for it to be with any of [his] clients."
Finally, with respect to finding of fact 29, the uncontroverted evidence is that respondent did not have stable employment. Although respondent claimed that he could not work due to a disability, his application for disability was denied. Thetrial court was not required to accept respondent's claims, in the face of that denial, that he was unable to earn any income. Further, in the event of denial of respondent's application for disability benefits, respondent's case plan required him to communicate a plan for obtaining the income necessary to support his children. As the trial court noted, respondent "offered various explanations for his failure to secure employment." The record, however, contains no evidence of any explanation as to how respondent planned to support his children.
In short, the above findings are each supported by clear, cogent, and convincing evidence. Respondent does not contend that these findings are insufficient to support the conclusion of law that respondent willfully left the children in foster care placement for more than 12 months without showing reasonable progress in correcting those conditions that led to the removal of the children. Instead, respondent simply reargues the evidence. The trial court's findings, however, establish that respondent failed to make reasonable progress as to sobriety, employment, housing, and understanding and addressing his children's special needs.
Grounds to terminate parental rights under N.C. Gen. Stat. § 7B-1111(a)(2) may be found even where a parent has made some progress. "This Court has held that '[e]xtremely limited progress is not reasonable progress.' This standard operates as a safeguard for children. If parents were not required to show both positive efforts and positive results, 'a parent could forestall terminationproceedings indefinitely by making sporadic efforts for that purpose.'" B.S.D.S., 163 N.C. App. at 545, 594 S.E.2d at 93 (internal citation omitted) (quoting In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995)). Accordingly, we hold that the trial court did not err in concluding that grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Respondent lastly argues that the trial court erred in concluding that it was in the best interests of the children to terminate his parental rights. "The trial court has discretion, if it finds that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the child's best interests." In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). As a discretionary decision, the trial court's dispositional order will not be disturbed unless it is so arbitrary that it could not have been the result of a reasoned decision. In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d 385, 387, aff'd per curiam, 360 N.C. 165, 622 S.E.2d 495 (2005).
In arguing that the trial court's decision constituted an abuse of discretion, respondent again reargues the evidence. Respondent asserts: "Temporary situations rendering a parent unable to care for their children should not result in an automatic termination of parental rights. [Respondent] demonstrated his fitness as a parent and the ability to reacquire custody of his children." Contrary to respondent's suggestion, this case did not involve a "[t]emporary situation." Rather, DSS had been involved with the family since 2001, the children had been in custody since 2004, and respondent was given almost three years to work on the issues necessary to regain custody of his children. He waited for a substantial period of time before beginning to address his case plan and even consented to a suspension of reunification efforts. Even after belatedly commencing work on his case plan, however, respondent, at the end of an almost three-year period of time, still had alcohol abuse issues, did not have proper housing, had no plan to support his children, was living with the alleged abuser of Sarah, and still exhibited questionable parenting judgment.
In making its determination to terminate respondent's parental rights, the trial court stated:
The juveniles have been in care for over thirty-two (32) months and remained in one home for almost the entire time they have been in custody. Termination will aid in the accomplishment of the permanent plan for the juveniles which this court finds to be adoption, which then is in the juveniles' best interests. The age and likelihood of adoption for the juveniles also support a conclusion that termination is in the juveniles' best interests.
Given the trial court's findings of fact made after a lengthy hearing, we cannot find manifestly unreasonable the trial court's determination that, given the children's ages and the likelihood of adoption, termination of parental rights was in the children's best interests. We, therefore, affirm.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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