In re J.Z.M.

663 S.E.2d 435, 191 N.C. App. 158, 2008 N.C. App. LEXIS 1133
Court of Appeals of North Carolina·Decided June 17, 2008·No. No. COA06-1242-2.·Published·Cited by 2 cases

Opinion

BRYANT, Judge.

This case originally came before this Court on 29 March 2007, by P.A.H.'s1 (respondent) appeal from an order entered 18 April 2006 terminating her parental rights to the minor children, J.Z.M., R.O.M., and R.D.M. and dismissing the petition to terminate parental rights as to her minor child, D.T.F. On 3 July 2007, this Court filed a non-unanimous opinion reversing the trial court's order because the adjudicatory hearing was not held within the time frame established by N.C. Gen.Stat. § 7B-1109(a) and the delay was prejudicial to respondent. In re J.Z.M., 184 N.C.App. 474, 646 S.E.2d 631 (2007). Charlotte-Mecklenburg Youth and Family Services' (YFS/petitioner) appealed to the North Carolina Supreme Court as a matter of right pursuant to N.C. Gen.Stat. § 7A-30(2). The Supreme Court reversed the decision of this Court for the reasons stated in the dissenting opinion which held respondent failed to demonstrate she was prejudiced by the delayed hearing. In re J.Z.M., 362 N.C. 167, 655 *436S.E.2d 832 (2008). The Supreme Court remanded the case to this Court for consideration of the remaining assignment of error raised by respondent's appeal. Id. For the reasons given below, we affirm the order of the trial court.

Facts and Procedural History

Respondent-mother and respondent-father lived together since February of 1994, were married in May of 1997, and were divorced in late 2003. YFS' first referral of inappropriate discipline by respondent-mother against one of her older children in 1994 was substantiated. In 1997, YFS substantiated a second referral for unstable housing and improper supervision of the children. Another referral in late 1998 similarly alleged that the family was homeless. Subsequent referrals were made in 1999, 2000, and 2003 for allegations of domestic violence between the respondent-parents.

R.O.M. was born in 1999, J.Z.M. was born in 2002 and R.D.M. was born in 2003; all were born in Mecklenburg County. All three are children of respondent-mother and respondent-father. On 5 December 2003, YFS removed the three children from the home of their mother. The trial court, on 3 February 2004, adjudicated the children as neglected and dependent juveniles. On 10 January 2005, YFS filed petitions to terminate respondent's parental rights. The hearing to terminate parental rights was continued on 27 October 2005 to 27 January 2006 and again to 7 March 2006. On 7 March 2006, the hearing to terminate parental rights as to J.Z.M., R.O.M., R.D.M., and D.T.F. was held. The order dated 18 April 2006 terminated parental rights as to J.Z.M., R.O.M., and R.D.M. and dismissed the petition as to D.T.F. Respondent-mother appeals.

In the remaining assignment of error before this Court, respondent argues the trial court erred in concluding that grounds existed to terminate her parental rights to the children because the findings of fact were not supported by competent evidence. We disagree.

"On appeal, the standard of review from a trial court's decision in a parental termination case is whether there existed clear, cogent, and convincing evidence of the existence of grounds to terminate respondent's parental rights." In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 398 (1996). The trial court's findings in this regard 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) (citation omitted). "It is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." In re Gleisner, 141 N.C.App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted).

Here, the trial court terminated respondent-mother's parental rights under N.C. Gen.Stat. § 7B-101(15) (neglect) and N.C. Gen.Stat. § 7B-1111(a)(2) (willfully leaving the child in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made). Because we find clear, cogent and convincing evidence to support the trial court's determination that grounds existed to terminate respondent-mother's parental rights based on willfully leaving the children in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made. In re B.S.D.S., 163 N.C.App. 540, 546, 594 S.E.2d 89, 93-94 (2004).

North Carolina General Statute § 7B-1111(a)(2) (2007) provides for termination of parental rights if "[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 [twelve] 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." Id. Willfulness under this section means something less than willful abandonment and does not require a finding of fault by the parent. Oghenekevebe, 123 N.C.App. at 439, 473 S.E.2d at 398.

Respondent argues the trial court's finding that grounds existed to terminate her parental *437

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In re J.Z.M., 663 S.E.2d 435, 191 N.C. App. 158, 2008 N.C. App. LEXIS 1133 (N.C. Ct. App. 2008).

663 S.E.2d 435 (In re J.Z.M.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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