In re S.C.H.

682 S.E.2d 469, 199 N.C. App. 658, 2009 N.C. App. LEXIS 1573

Opinions

HUNTER, Robert C., Judge.

Respondent-mother and respondent-father appeal the trial court’s orders terminating their parental rights with respect to their child, S.C.H. Respondents primarily contend that the trial court erred in determining that grounds for terminating their rights existed. Because, however, the trial court’s unchallenged findings of fact support it’s conclusion that at least one basis for termination of parental rights exists, we affirm.

Facts

On 11 October 2004, the Brunswick County Department of Social Services (“DSS”) filed a petition alleging that S.C.H. was a neglected and dependent juvenile. DSS alleged that it had received a referral stating that S.C.H. had tested positive for cocaine at birth. The petition stated that S.C.H. had been on a heart monitor since birth due to low birth weight and for observation. DSS alleged that both respondents had a long history of unaddressed drug abuse, and that respondent-mother had admitted to using illegal and prescription drugs. Respondents were also living in a home with a known drug user. Respondent-mother stated that she was “unable to care for the child financially,” and DSS alleged that it could not assure the child’s safety if released into respondents’ care. DSS further asserted that there was no alternative child care arrangements available. The trial court granted DSS non-secure custody of S.C.H. On 2 June 2006, S.C.H. was adjudicated neglected by consent order, and custody was continued with DSS. The court ordered respondents to enter into a case plan and to comply with all of its recommendations.

A permanency planning review hearing was held on 20 September 2005. The trial court found that respondents had made “reasonable progress toward eliminating and alleviating many of the conditions that led to the removal of the juvenile from their care.” The court continued custody with DSS, but authorized DSS to place the juvenile with respondents in accordance with a visitation schedule.

On 21 March 2006, the trial court held another review hearing. The trial court found: (1) respondent-mother had left S.C.H. in his bedroom, with the door closed, on at least two occasions, even though respondent-mother had been advised against this practice; (2) S.C.H., while in the care of respondent-mother, was found more than once with a wet diaper that was saturated, and it appeared that his diaper had not been changed regularly; (3) S.C.H. was found in his crib with dried vomit on his clothing; (4) despite being advised to not leave S.C.H. alone in his crib with a bottle due to concern of choking, respondent-mother continued this practice; (5) respondents had moved from their home without notifying DSS or the guardian ad litem; and (6) respondents’ new residence contained numerous safety issues, which were not addressed until brought to respondents’ attention by the guardian ad litem. The trial court determined that respondent-mother’s conduct demonstrated that she “did not fully learn from the in-home services that were previously provided and that additional services were necessary in order to safely provide for the child.” The trial court continued custody with DSS and ordered that new services be put in place and that a new case plan be developed. The trial court further ordered that once services were in place, DSS was authorized to place S.C.H. with respondents, subject to strict monitoring by DSS and the guardian ad litem.

Subsequently, in a court summary prepared by DSS, it stated that: (1) respondent-mother had violated her probation by not paying her probation fees; (2) respondents had been evicted from their residence and moved out of the county; (3) respondents had tried to take the child out of daycare without permission; (4) respondents had failed to pass a parenting test and did not re-enroll in any parenting program; (5) respondent-father was not employed, and there was no indication he was seeking employment; and (6) respondents were not participating in any reunification services. DSS stated that it had provided services to respondents for twenty-four months and that these services had been “futile.” Accordingly, DSS recommended that it be relieved of reunification efforts.

On 18 September 2007, DSS filed a petition to terminate respondents’ parental rights. DSS alleged four grounds for termination: (1) S.C.H. was neglected within the definition of N.C. Gen. Stat. § 7B-101(15) (2007); (2) respondents had willfully left S.C.H. in foster care for more than twelve months without showing reasonable progress under the circumstances had been made in correcting those conditions that led to the child’s removal; (3) respondents, for a continuous period of six months immediately preceding the filing of the petition, had failed to pay a reasonable portion of the cost of care for S.C.H. although physically and financially able to do so; and (4) respondents willfully abandoned S.C.H. for at least six consecutive months immediately preceding the filing of the petition.

Hearings were held on the petition to terminate respondents’ parental rights on 9-10 December 2008 and 16 December 2008. The trial court determined that the first three grounds for terminating respondents’ parental rights existed. The court further concluded that it was in S.C.H.’s best interests that respondents’ parental rights be terminated. Respondents timely appealed from the orders terminating their parental rights with respect to S.C.H.

Discussion

Respondents first argue that the trial court erred in determining that grounds existed to terminate their parental rights. N.C. Gen. Stat. § 7B-1111 (2007) sets out the grounds for terminating parental rights. A finding of any one of the enumerated grounds is sufficient to support termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). “The standard of appellate review is whether the trial court’s findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., D.M.D., S.J.D. & 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005).

In this case, the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-llll(a)(2), which provides for termination of parental rights where:

The 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. . . .

To find grounds to terminate parental rights under N.C. Gen. Stat. § 7B-llli(a)(2), the trial court must perform a two-part analysis:

The trial court must determine by clear, cogent and convincing evidence that a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and, further, that as of the time of the hearing, as demonstrated by clear, cogent and convincing evidence, the parent has not made reasonable progress under the circumstances to correct the conditions which led to the removal of the child.

In re O.C. & O.B., 171 N.C. App. 457, 464-65, 615 S.E.2d 391, 396 (internal citations omitted), disc. review denied, 360 N.C. 64, 623 S.E.2d 587 (2005).

Here, in support of its conclusion of law that grounds existed pursuant to N.C. Gen. Stat. § 7B-llll(a)(2) to terminate respondents’ parental rights, the trial court found as fact:

28. Neither [respondent] provided any funds to [DSS] or the foster parents during the 2008 calendar year. The last time they provided any personal items for the child’s benefit was in December 2007 when they delivered Christmas presents to him at a visit. They have not provided any cards or letters to him, although they know the address for [DSS].

46. The [respondents] were to participate in parenting classes. Both [respondents] attended the parenting sessions, but neither was able to pass the test at the end of the program. The [respondents] were asked to retake the test and the administrator, one Caroline Moore, was contacted by Diana Setaro who asked her to modify the test so that the questions could be asked orally, but neither [respondent] made arrangements to do so. Ms. Setaro advised both [respondents] to make contact with Ms. Moore.

50. The child was placed in the home for extended periods. On two occasions, after in home therapeutic services were in place, [DSS] had to remove the child from the home for safety concerns. At the time reunification was ceased by the Court, the child was not in the home full time.

56. [DSS] required the [respondents] to secure random drug screens, which were obtained from the [respondents] periodically. The December 10, 2004 drug screen came back positive for Benzodiazepines. The [respondents] were both being prescribed several medications that cause sedation, namely Percocet, Valium and Xanax.

57. At the Court ordered review held on March 22, 2005, the respondent father had not conformed to the requirements of the case plan regarding random substance abuse testing ....

58. . . . The Respondent parents were directed by the Wilmington Treatment Center to drug test on March 4, 2005 and failed to do so. . . .

60. At the September 20, 2005 Permanency Planning Review Hearing, the juvenile had been regularly going for day visits. There were safety issues at the residence of the paternal grandmother regarding the location of a b.b. gun within reach of the juvenile. ... At the time of the review, the parenting classes had neither been started nor completed. The crib which had been provided by an outside agency had been given back and the Respondent mother had also given away baby food.

65. The child was removed [from Respondents’ care] on February 9, 2006 for the following reasons: The Respondent mother had refused help from Learning Perspectives. The child was left unsupervised in his crib awake with a bottle in a back bedroom with the door shut while the [respondent] mother was asleep. This occurred] two days in a row. The child was in the crib with a dirty soiled diaper[] and had thrown up on himself. The Respondent father had lost another job and had started a new job. The Respondent mother had not seen her tutor since December 2, 2005 and would not allow the tutor to return. [Respondent-father] was not following up with screens at Southeastern Mental Health. . . . The [respondents] tested positive for Valium. The [respondents] moved into a new residence without first having [DSS] approve the residence which had many safety hazards at the time they moved in. The Respondent mother had not maintained contact with Mr. Berthiume who was providing therapy services in home and that she did not advise him of the move. The [respondents] did not have their own transportation. [Respondent-father] had not actively participated in any in home services that were provided to the family.

66. On March 21, 2006, a review hearing was held. Between January 2006 and this review, the minor child ha[d] been found in the care of [respondent-mother] on more than one occasion with saturated wet diapers which did not appear to be regularly changed. He was found in his crib in his bedroom with vomit on his clothing that had dried and had not been changed. The Respondent mother was continually leaving the child alone in his crib with a bottle even after being advised of the risk of choking. The [respondents] had moved from their residence without notifying [DSS] or the Guardian Ad Litem. As noticed above, once their home was located there were numerous safety issues associated with this residence. . . .

68. On February 28, 2006 the Guardian Ad Litem had observed the Respondent mother and the child at [DSS]. The Respondent mother had the juvenile for an unsupervised visit and at the time the Respondent mother and the juvenile were at [DSS] the juvenile’s diaper was so full of fluid that it was leaking out on to his clothes.

69. On March 9, 2006 [respondent-mother] was observed at the residence between 10:30 and 11:00 a.m. and it appeared that she had been sleeping. She was very slow to answer the door after several knocks and she appeared to be unsteady on her feet and her speech was not clear. During the visit the juvenile was observed sitting in a crib in a bedroom with the door closed and the blinds drawn. He had a soiled diaper that smelled very strong and a bib that was covered with dried red chunky material. There was a bottle of milk laying in the crib. After several promptings by the Guardian Ad Litem the Respondent mother finally changed the child’s diaper and put on clean clothes. As a result of this, the child was removed from the home and returned to foster card.

72. In August . . . without notice to [DSS] or other service providers, [respondents] relocated and notified [DSS] [that] following their move that they could not participate in any services, nor was their home suitable for visitation, as it was only temporary. In that the Respondent mother has not been' involved in treatment since August 30, 2006 and presented many challenges and struggles parenting the juvenile even with support in place.

74. Although [respondents] had taken the parenting class, they did not pass the final test in the parenting class. However, the intensive in home services with regard to parenting skills had been provided by Mr. Berthiume and the [respondents] had either discontinued that service and had not retained any of [the] skills that had been provided during the time that Mr. Berthiume was providing in home services.

75. The Respondent parents ha[d] moved out of the county without permission to a location not approved by [DSS]. It appeared that [respondent-father] has not secured the mental health evaluation which was required on his case plan. At the review in November 2006, the parents were not participating in any of the services that were to be provided to bring about reunification[.]

In addition to these findings, the trial court found that respondent-father was required to cease using alcohol. The court found, however, that respondent-father “occasionally drinks a cold beer. When he wants one, he’ll buy it.” Respondents do not challenge these findings, and, therefore, they are binding on appeal. See In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005) (concluding findings of fact not assigned as error or challenged in appellant’s brief deemed binding on appeal); N.C.R. App. P. 28(b)(6).

Respondent-mother contends that the trial court failed to consider respondents’ cognitive limitations with respect to its finding of willfulness. Compare In re Matherly, 149 N.C. App. 452, 454-55, 562 S.E.2d 15, 17-18 (2002) (holding trial court failed to consider age-related limitations as to willfulness). Despite respondents’ cognitive limitations, their failure to provide personal items, cards or letters to the. juvenile, and especially their cessation of services required for reunification, were sufficient to show willfulness. See In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996) (finding respondent willfully left child in foster care where she did not take advantage of DSS assistance with services such as counseling and parenting classes to improve her situation); In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995) (holding parent’s refusal to obtain treatment for alcoholism constituted willful failure to correct conditions that had led to removal of child from home). Accordingly, sufficient grounds existed for termination of respondents’ parental rights under N.C. Gen. Stat. § 7B-llll(a)(2). As grounds exist pursuant to N.C. Gen. Stat. § 7B-llll(a)(2) to support the trial court’s order, the remaining grounds found by the trial court to support termination need not be reviewed. Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34.

We additionally note that the dissent maintains that the trial court failed to “address any of the plentiful evidence of [respondents’] cognitive difficulties [,]” suggesting that the trial court should have determined whether they were incapable of providing S.C.H. with necessary care. See N.C. Gen. Stat. § 7B-llll(a)(6). However, the petition to terminate respondents’ parental rights did not contain any allegations that respondents were incapable of providing proper care and supervision for the juvenile. Thus, it would have been improper for the trial court to terminate respondents’ parental rights on this basis. See In re C.W. & J.W., 182 N.C. App. 214, 228-29, 641 S.E.2d 725, 735 (2007) (holding trial court erred by terminating respondent’s parental rights based on abandonment, which had not been alleged in petition).

Respondents next contend that the trial court erred in concluding that termination of their parental rights is in S.C.H.’s best interest. On finding the existence of a ground to terminate a parent’s rights, a court must then decide whether termination is in the best interest of the child. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). This decision is within the discretion of the trial court and may be reviewed only for an abuse of discretion. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406-07 (2003). “A ruling committed to a trial court’s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).

The Juvenile Code sets out several factors the trial court must consider in determining whether termination of parental rights is in the best interest of the child:

(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 the 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.

N.C. Gen. Stat. § 7B-1110(a)(l)-(6) (2007). The trial court is directed to take action “which is in the best interests of the juvenile” when “the interests of the juvenile and those of the juvenile’s parents or other persons are in conflict.” N.C. Gen. Stat. § 7B-1100(3) (2007).

In this case, the trial court’s dispositional order indicates that the court considered the factors required by N.C. Gen. Stat. § 7B-1110(a). First, the trial court made a specific finding referencing S.C.H.’s date of birth, and noted that his foster mother had “interacted with [S.C.H.] since his birth.” The trial court additionally found:

4. [The foster parents] have two other children in their home, an eighteen year old son, and a three year old daughter, whom they recently adopted. [S.C.H.] has developed a warm, loving relationship with both of these children. When the [foster family] decided to become foster parents, their older son participated in the MAPP classes and has openly accepted the younger children in the home. [S.C.H.] and [the three-year-old daughter] treat each other as normal siblings — they fight together, they color together, they go fishing with their foster father, they use play doh to create things and they ride their bikes.

5. [The foster father] takes the children fishing.

6. When [the foster father] works in the yard, [S.C.H.] will help him.

7. [The foster mother] plays the violin and the children have taken an interest in playing as well. [The foster mother] has purchased violins for [the daughter] and [S.C.H.] for Christmas and paid for lessons for them beginning in January 2009.

8. [S.C.H.] has been observed by the Guardian ad litem on a number of occasions in the [foster family’s] household. His interaction with [the daughter] and the foster parents is warm and affectionate.

11. [S.C.H.] receives occupational therapy and speech therapy. [The foster mother] has worked with the therapist to learn how to assist him in the home to improve his skills and to make modifications to help him. The child is currently in a pre-kindergarten program and is doing well in school.

12. That the juvenile is doing well in his placement and the environment has been appropriate and nurturing for the child. By all accounts, the child is progressing well in this home, considers the family ‘his’ family and the other children in the home to be ‘his’ siblings.

13. [The foster parents] are committed to the child and desire to adopt him.

14. That it is in the best interest of the minor child that the parental rights of [respondents] be terminated in order for the permanent plan of adoption to proceed.

Respondent-mother argues that the trial court made no findings as to the bond between herself and S.C.H. The dissent concludes that without a finding on this factor, it cannot be determined whether the court considered that factor as mandated by N.C. Gen. Stat. § 7B-1110(a)(4). The dissent would, therefore, remand the matter for further findings.

Although the trial court may have not made a specific finding addressing N.C. Gen. Stat. § 7B-1110(a)(4), the trial court made multiple findings regarding the other enumerated factors. The trial court made findings as to the bond between S.C.H. and his prospective adoptive parents; the substantial progress made by S.C.H. while in foster care; the foster parents’ plan to adopt S.C.H.; and that termination of respondents’ parental rights would allow adoption to proceed.

Moreover, in light of the trial court’s findings in its adjudication order that respondents last provided gifts to S.C.H. in December 2007; that they have not given any cards or letters to S.C.H.; and that they canceled two of the five visits granted by the trial court in October 2007, it is apparent that the trial court did consider the bond between respondents and S.C.H. We, therefore, conclude that the trial court’s findings are not so deficient as to warrant a conclusion that its determination is manifestly unsupported by reason. See In re R.B.B., 187 N.C. App. 639, 648, 654 S.E.2d 514, 521 (2007) (holding trial court did not abuse discretion in terminating parental rights although there was not “[s]pecific[]” finding regarding bond between parent and child), disc. review denied, 362 N.C. 235, 659 S.E.2d 738 (2008); In re T.M., 182 N.C. App. 566, 577, 643 S.E.2d 471, 478 (2007) (finding no abuse of discretion based primarily on finding relating to likelihood of adoption by foster parents; no indication that trial court considered bond between parent and child), aff’d per curiam, 361 N.C. 231, 641 S.E.2d 302 (2007). Consequently, we affirm.

Affirmed.

Chief Judge MARTIN concurs. Judge ELMORE dissents in a separate opinion.