In re D.C.

737 S.E.2d 182, 225 N.C. App. 327, 2013 WL 427210, 2013 N.C. App. LEXIS 134
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2013
DocketNo. COA12-893
StatusPublished
Cited by1 cases

This text of 737 S.E.2d 182 (In re D.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re D.C., 737 S.E.2d 182, 225 N.C. App. 327, 2013 WL 427210, 2013 N.C. App. LEXIS 134 (N.C. Ct. App. 2013).

Opinion

STROUD, Judge.

Respondent mother appeals from the trial court’s 1 May 2012 order terminating her parental rights in her minor child.1 We affirm.

On 17 November 2004, the New Hanover County Department of Social Services (“DSS”) filed a juvenile petition alleging Don,2 then three years old, to be neglected and dependent due to severe injuries he sustained from a dog attack in the home. DSS obtained non-secure custody, and the child was placed in foster care. The minor child was adjudicated neglected on 13 January 2005, and the allegation of dependency was dismissed. On 14 July 2005, the permanent plan was changed from reunification to adoption and DSS was authorized to pursue termination of parental rights.

After another permanency planning review hearing held on 29 November 2007, the trial court changed the permanent plan for Don to guardianship and granted guardianship to the child’s foster parents. Respondent appealed to this Court, which affirmed the order in an opinion filed on 15 July 2008. In re D.C., 191 N.C. App. 399, 663 S.E.2d 13 (2008) (unpublished).

On 27 May 2011, respondent filed a pro se motion for review. Due to the passage of time, new counsel and a guardian ad litem were appointed to represent respondent and a guardian ad litem was [329]*329appointed for the minor child. On 29 August 2011, respondent’s attorney filed a new motion for review. Respondent’s pro se motion was dismissed on 23 December 2011.

On 19 October 2011, Don’s guardians filed a petition to terminate respondent’s parental rights. The petition alleged respondent parents neglected and/or abused the minor child, willfully left the minor child in placement outside the home for more than twelve months without making reasonable progress to correct the conditions that led to the removal of the child, are incapable of providing for the proper care and supervision of the child, failed to pay support for the child, and willfully abandoned the child.

The termination petition and the August motion for review were consolidated for a hearing held on 9 January and 20 February 2012. The trial court entered its order on 1 May 2012 terminating respondent’s parental rights to the minor child based on neglect, failure to make reasonable progress, and willful abandonment. The court also denied respondent’s motion for review. Respondent appeals.

“The standard for 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 Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984).

Respondent challenges the findings of fact relating to each of the three grounds contained in the order as being unsupported by the evidence and argues that the findings of fact do not support the trial court’s conclusions. Further, respondent argues petitioners had no authority to file a petition to terminate her parental rights after the trial court ordered guardianship as the permanent plan. We address the latter issue first.

Respondent notes that in the 14 December 2007 order establishing guardianship as the permanent plan for the minor child, the trial court did not close the juvenile case or relieve DSS of responsibility for reunification but instead directed DSS to participate in helping respondent reestablish a relationship with the minor child. Respondent argues that the guardians were not parties to the juvenile case, nor did they seek to intervene as parties at any point in the case. She asserts that a hearing should have been held in order to allow her to contest a change in the permanent plan from guardianship to termination of her rights. She argues that without an order from the trial court changing the permanent plan and without making DSS a party, [330]*330“the guardians unilaterally commenced a private action for termination by filing their petition in October 2011.” We agree that this is what the guardians did; that action, however, is specifically authorized by the Juvenile Code.

N.C. Gen. Stat. § 7B-1103, which governs “Who may file a petition or motion” to terminate a parent’s rights, permits “[a]ny person who has been judicially appointed as the guardian of the person of the juvenile” to file such a petition or motion. N.C. Gen. Stat. § 7B-1103(a)(2) (2011). Despite respondent’s arguments, the Juvenile Code places no preliminary requirements on guardians before they may file a petition or motion to terminate a parent’s rights. Therefore, the guardians’ petition seeking to terminate respondent’s parental rights was proper, and respondent’s contention that another permanent planning review hearing should have been held prior to the filing of the termination petition has no merit.

Respondent contends the grounds of neglect and failure to make reasonable progress are not supported by the findings of fact or the evidence.

To terminate a parent’s rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), it must be shown by clear and convincing evidence that the parent (1) willfully left the child in placement outside the home for more than twelve months, and (2) as of the time of the termination hearing, failed to make reasonable progress under the circumstances to correct the conditions that led to the child’s removal. In re O.C., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396, disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005). The trial court’s order must contain adequate findings of fact as to whether the parent acted willfully and as to whether the parent made reasonable progress under the circumstances. In re C.C., 173 N.C. App. 375, 384, 618 S.E.2d 813, 819 (2005). We have stated that “[willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175, (citation omitted), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). “A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the child[].” In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995).

Respondent first argues that the condition which led to Don’s removal from the home, a dangerous environment due to the dog attack, no longer exists. She notes that the dog was destroyed, there [331]*331was no evidence of another dog in the home, and that respondent’s home was reported to be “clean and tidy” by DSS in 2007. At the time of the termination hearing in 2012, she had maintained custody of one of her other children for three years and she had regular extended visitation with her other two minor children.

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Bluebook (online)
737 S.E.2d 182, 225 N.C. App. 327, 2013 WL 427210, 2013 N.C. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dc-ncctapp-2013.