In re E.L.H.

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 14-209
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .

NO. COA14-209 NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

IN THE MATTER OF: Rutherford County No. 11 JT 039 E.L.H., A Minor Child.

_________________________

IN THE MATTER OF: Rutherford County No. 11 JT 040 R.N.H., A Minor Child.

Appeal by respondent from orders entered 2 December 2013 by

Judge Laura A. Powell in Rutherford County District Court.

Heard in the Court of Appeals 30 June 2014.

Merri Burwell Oxley, for petitioner-appellee.

Michael E. Casterline, for respondent-appellant.

K&L Gates LLP, by Leah D’Aurora Richardson, for Guardian ad Litem.

MARTIN, Chief Judge.

Respondent appeals from orders terminating her parental

rights to her minor children E.L.H. and R.N.H. We affirm in -2-

part and remand in part.

On 6 April 2011, the Rutherford County Department of Social

Services (“DSS”) filed petitions alleging that E.L.H., age four,

and R.N.H., age two, were neglected and dependent juveniles.

The court entered orders adjudicating them as dependent

juveniles on 17 June 2011. In its adjudication orders, the

court found that DSS became involved with the family after it

received a report, which was subsequently substantiated,

concerning domestic violence between respondent and her

boyfriend. The report also raised concerns about drug usage and

about respondent’s untreated mental health issues. Respondent

was subsequently arrested on charges of driving without an

operator’s license and two counts of misdemeanor child abuse.

Due to her incarceration, the children were placed in kinship

care with respondent’s sister until 6 April 2011, when the

children’s maternal relatives notified DSS that they could no

longer keep the children. Respondent was asked to provide an

alternative placement but no family members were willing to take

the children. The address of the children’s father was unknown.

After a permanency planning hearing on 13 June 2013, the

court entered an order in which it found that, in late

January 2013, respondent sold marijuana on two separate

occasions in her home. These transactions were recorded by -3-

audio and video. A convicted felon who possessed a stolen

firearm was in the residence with respondent for one of these

transactions and “actually participated in said sale.” After

determining that returning the minor children to respondent’s

home “would be contrary to the welfare” of the children, the

court changed the permanent plan to adoption and ordered DSS to

pursue termination of respondent’s parental rights.

DSS filed petitions to terminate respondent’s parental

rights to both minor children on 1 August 2013. After hearing

the matter, the court entered orders on 2 December 2013

terminating respondent’s parental rights to both minor children

on the grounds that she willfully left the children in foster

care for more than twelve months without making reasonable

progress in correcting the conditions that led to the removal of

the children pursuant to N.C.G.S. § 7B-1111(a)(2). The court

concluded that termination of respondent’s parental rights was

in the best interests of each child. Respondent appeals from

these orders.

Respondent first contends the trial court erred by

terminating her parental rights to the minor children based on

the court’s conclusion that she willfully left the children in

foster care for more than twelve months without showing that she -4-

had made reasonable progress in correcting the conditions which

led to their removal. She asserts that, in reaching this

conclusion, the trial court “ignored” evidence of her

“considerable efforts to improve her own mental health,” as well

as “the improvements she made in the areas of household

stability and parenting.”

“Termination of parental rights is a two-step procedure.”

In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5, disc.

review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). “During the

initial adjudication phase of the trial, the petitioner seeking

termination must show by clear, cogent, and convincing evidence

that grounds exist to terminate parental rights.” Id. “A

finding of any one of those grounds is sufficient to support

termination of parental rights.” Id. “If the petitioner

succeeds in establishing the existence of any one of the

statutory grounds listed in [N.C.G.S.] § 7B–1111, the trial

court moves to the second, or dispositional, stage, where it

determines whether it is in the best interests of the child to

terminate the parental rights.” Id. (internal quotation marks

omitted).

“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 -5-

turn, support the conclusions of law.” Id. at 221, 591 S.E.2d

at 6 (internal quotation marks omitted). “We then consider,

based on the grounds found for termination, whether the trial

court abused its discretion in finding termination to be in the

best interest of the child.” Id. at 222, 591 S.E.2d at 6.

N.C.G.S. § 7B-1111(a)(2) provides, in relevant part, that

the trial court may terminate parental rights upon a finding

that “[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) (2013). To sustain a trial

court’s decision to terminate parental rights under this

statutory ground, we must “determine that there was clear,

cogent, and convincing evidence that (1) respondents ‘willfully’

left the juvenile in foster care for more than twelve months,

and (2) that each respondent had failed to make ‘reasonable

progress’ in correcting the conditions that led to the

juvenile’s removal from the home.” In re Baker, 158 N.C. App.

491, 494, 581 S.E.2d 144, 146 (2003). “Willfulness may be found

under this statute where the parent, recognizing her inability

to care for the child, voluntarily leaves the child in foster -6-

care.” In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d

393, 398 (1996). Additionally, “[w]illfulness 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, disc. review denied,

354 N.C. 218, 554 S.E.2d 341 (2001). Further, “[w]illfulness

may be found where[,] even though a parent has made some attempt

to regain custody of the child, the parent has failed to show

reasonable progress or a positive response to the diligent

efforts of DSS.” In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d

657, 662 (2003) (internal quotation marks omitted).

In the present case, respondent does not dispute that, at

the time this matter was heard by the trial court, the minor

children had been in foster care for 939 days, which represented

one-third of E.L.H.’s life and one-half of R.N.H’s life to date.

Respondent contends only that the court erred by determining

that she had left the children in foster care for more than

twelve months “without showing, to the satisfaction of the

[c]ourt, that reasonable progress under the circumstances ha[d]

been made in correcting those conditions that led to the removal

of the juvenile[s].” However, the trial court’s unchallenged

findings of fact reflect that the court removed the minor

children from respondent’s home in 2011 “due to reports of -7-

domestic violence in the home,” and due to “concerns about the

respondent mother’s drug usage and mental health status.” The

court also found that, in late January 2013, respondent

participated in two separate illegal drug sales at her home, was

subsequently arrested for two counts of possession with intent

to sell and deliver marijuana, and later pled guilty to these

charges. The court further found that, on 5 February 2013,

respondent “was involved in an illegal gun sale in which she

assisted” “a convicted felon and known gang member,” who was

present during the sale, by frisking an informant who arrived to

purchase the gun. The court also found the following as to each

child:

21. By her own testimony, the respondent mother did not think there was anything wrong with a convicted felon selling a firearm from her residence.

22. The respondent mother also thinks her association with drug dealers and a convicted felon selling firearms is acceptable and even believes she has the blessing of her therapist to continue to associate with such people and thought this association was good for her.

23. The respondent mother’s judgment is clearly impaired, not by substances but by her mental illness.

24. The [c]ourt is not aware of any other services that could be offered to the respondent mother that would modify her -8-

behavior such that it would be safe to return the [minor children] to the respondent mother’s care.

25. That the respondent mother’s home where she sold illegal controlled substances and where a convicted felon was present with a stolen firearm is not a safe environment for the [minor children].

26. That the [minor children have] been in foster care for the last 30 months.

Although respondent directs this Court’s attention to evidence

that she complied with DSS’s recommendations to complete

parenting classes, obtain appropriate housing, and participate

in substance abuse and mental health assessments and follow-up

treatment, as we recognized above, “[w]illfulness may be found

where[,] even though a parent has made some attempt to regain

custody of the child, the parent has failed to show reasonable

progress or a positive response to the diligent efforts of DSS.”

See In re Clark, 159 N.C. App. at 84, 582 S.E.2d at 662

(emphases added) (internal quotation marks omitted). Thus,

because the unchallenged findings——which are binding on appeal,

see Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731

(1991) (“Where no exception is taken to a finding of fact by the

trial court, the finding is presumed to be supported by

competent evidence and is binding on appeal.”)——support the

trial court’s conclusion that respondent willfully left the -9-

minor children in foster care without making reasonable progress

in correcting the conditions which led to their removal from the

home, we overrule this issue on appeal.

Respondent next contends the trial court erred by failing

to make written findings concerning the bond between respondent

and the minor children when determining whether terminating her

parental rights to E.L.H. and R.N.H. would be in each child’s

best interest.

In determining whether termination of parental rights is in

the best interest of a child, the trial court is required to

“consider” and “make written findings regarding the following

that are relevant,” N.C. Gen. Stat. § 7B-1110(a) (2013):

(1) The age of the juvenile.

(2) The likelihood of adoption of the juvenile.

(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.

(4) The bond between the juvenile and parent.

(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.

(6) Any relevant consideration.

Id. While N.C.G.S. § 7B-1110(a) “requires the trial court to -10-

‘consider’ all six of the listed factors,” In re D.H., __ N.C.

App. __, __, 753 S.E.2d 732, 735 (2014), “the court must enter

written findings in its order concerning only those factors

‘that are relevant.’” Id. at __, 753 S.E.2d at 735 (emphases

added). Where issues with respect to one or more factors——for

example, concerning “the quality of the bond between [a minor

child] and respondent[——]were raised during [a] termination

hearing, but the trial court did not make any written findings

regarding these factors,” see In re J.L.H., __ N.C. App. __, __,

741 S.E.2d 333, 338 (2012), this Court has determined that the

trial court erred and has remanded the matter to the trial court

“for entry of appropriate findings pursuant to [N.C.G.S.] § 7B-

1110(a),” id. at __, 741 S.E.2d at 338, where “the record

contain[ed] evidence from which the court could make findings as

to this factor.” Id. at __, 741 S.E.2d at 338.

Here, the reports submitted by DSS to the trial court

indicate that, prior to respondent’s arrest, respondent was

granted limited, unsupervised, weekly visitation with the minor

children, which visits “went well,” and that both children “were

eager to live with” respondent. The guardian ad litem’s report

submitted in connection with the 24 April 2013 permanency

planning hearing for both children indicates that E.L.H. “has

expressed somewhat of an interest in returning to his mother,” -11-

and that R.N.H. “is too young to be sure what he wants.” The

guardian ad litem recommended that respondent be allowed to

“have many unsupervised visits with her children, as dictated by

the [c]ourt, until their return to her is proven the absolute

right thing for them.”

During the dispositional portion of the termination

proceedings, a DSS social worker testified that the children

“are bonded with the mother.” The social worker also testified

that, after reunification efforts ceased, the children inquired

about the welfare of their mother but did not appear to have

issues concerning the cessation of their visitations with her.

Respondent also testified with respect to the efforts she made

to have the children returned to her care. She testified that

she “put [the minor children] before [her] so much so that [she]

ha[s] done lots of things that [she] did not want to do in their

best interest for them and for only them.” She also declared

that she “love[s] them so much,” and that she “would never harm

them” or “allow them to be abused either.” She further

testified that, before the minor children were taken away from

her, she kept a diary concerning E.L.H. every day, from the

child’s birth until he was eight months old. In light of the

evidence presented to the trial court regarding the bond between

respondent and the minor children, and in light of recent -12-

decisions from this Court, we conclude that the foregoing

evidence placed the statutory factor of the bond between

respondent and the minor children into issue. Therefore, we

hold that the trial court erred by failing to make a finding of

fact concerning the bond between respondent and the minor

children. Thus, we affirm the adjudicatory portion of the

court’s orders determining that E.L.H. and R.N.H. are dependent

and that respondent willfully left the minor children in foster

care for more than twelve months without showing, to the

satisfaction of the trial court, that reasonable progress has

been made in correcting those conditions that led to the removal

of the minor children. With respect to the dispositional

portion of the court’s orders, we remand this matter to the

trial court with instruction that the court make further

findings of fact in accordance with N.C.G.S. § 7B-1110(a)

concerning the bond between respondent and each child in order

to determine whether termination of respondent’s parental rights

is in the best interest of the children.

Affirmed in part and remanded in part.

Judges ELMORE and HUNTER, JR. concur.

Report per Rule 30(e).