In Re: M.M.F

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. NO. COA11-587 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 IN THE MATTER OF: M.M.F. A Minor Juvenile Sampson County No. 09 JA 34 Appeal by respondent-mother from judgment entered 23 March 2011 by Judge Carol A. Jones Wilson in Sampson County District Court. Heard in the Court of Appeals 31 October 2011. Frank L. Bradshaw for Sampson County Department of Social Services petitioner-appellee. Smith Moore Leatherwood, LLP, Guardian ad Litem appellee. by Carrie A. Hanger, for Mercedes O. Chut for respondent-mother appellant. McCULLOUGH, Judge. Respondent-mother appeals from a judgment terminating her parental rights to her daughter, M.M.F. ( Mary )1. We affirm. Respondent-mother and C.H. are the parents of Mary, born 5 September 2008, and two older children. On 19 March 2009, the Sampson County Department of Social Services ( DSS ) filed a 1 A pseudonym is used to protect the identity of the juvenile. -2juvenile petition alleging dependent juvenile. that Mary was a neglected and DSS filed the petition at the request of a district court judge who had conducted a hearing earlier that day on respondent-mother s ex parte motion for temporary custody of Mary. DSS supported its juvenile petition with a copy of a January 2009 Harnett County juvenile order that was received into evidence by the district court judge at the temporary custody hearing. In the Harnett County order, the trial court found respondent-mother and C.H. to be unfit and to have acted inconsistent with their parental rights, found domestic violence and untreated mental health issues, and placed Mary s two older siblings in the custody of a relative. DSS took nonsecure custody of Mary on 19 March 2009. days later, service respondent-mother agreement parenting in classes, which complete entered she was into an required domestic violence Four out-of-home to complete counseling, complete mental health therapy, and obtain stable housing. After conducting a hearing on the juvenile petition, the trial court adjudicated Mary a neglected and dependent juvenile. The trial February court 2009, held the periodic trial court review held hearings, a and permanency on 18 planning -3hearing. By order filed 30 March 2010, the trial court changed the permanent plan from reunification to adoption. On 8 June 2010, DSS filed a motion to terminate respondentmother s parental rights alleging that grounds existed to terminate her rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2009) (neglect); N.C. Gen. Stat. § 7B-1111(a)(2) (failure to make reasonable progress); and N.C. Gen. Stat. § 7B-1111(a)(6) (incapable of providing care and supervision). After several continuances, the trial court conducted a hearing on 17 February 2011. The trial court concluded that grounds existed to terminate the parental rights of respondent-mother under N.C. Gen. Stat. § 7B-1111(a)(2),(6). The trial court further concluded that it was in the best interest of Mary to terminate respondent-mother s parental rights. Respondent-mother appeals. On appeal, respondent-mother contends: (1) the trial court erred in not appointing her a guardian ad litem, (2) several of the trial court s findings of fact are not supported by the evidence, and (3) grounds existed the to trial court terminate erred her in concluding parental that rights. Preliminarily, we note that although the trial court concluded that grounds existed pursuant to sections 7B-1111(a)(2),(6), we find it dispositive that the evidence is sufficient to support -4termination of respondent-mother s parental rights under section 7B-1111(a)(2). See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one statutory ground is sufficient to support the termination of parental rights). I. Standard of Review 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 turn, support the conclusions of law. 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. In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004) (citation omitted). II. Guardian ad litem Respondent-mother first contends the trial court abused its discretion by not appointing her a guardian ad litem. Appointment of a guardian ad litem for parents is governed by N.C. Gen. Stat. § 7B-1101.1(c) (2009), which provides: On motion of any party or on the court s own motion, the court may appoint a guardian ad litem for a parent in accordance with G.S. 1A-1, Rule 17, if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. The parent s counsel shall not be appointed to serve as the guardian ad -5litem. Id. (emphasis added). A trial judge has a duty to properly inquire into the competency of a litigant in a civil trial or proceeding when circumstances are brought to the judge s attention, which raise a substantial question as to whether the litigant is non compos mentis. In re J.A.A., 175 N.C. App. 66, 72, 623 S.E.2d 45, 49 (2005) (citing Rutledge v. Rutledge, 10 N.C. App. 427, 432, 179 S.E.2d 163, 166 (1971)). Whether the circumstances question initially as . to . . the determined are sufficient to party s competency in sound the raise a is matter a discretion of substantial the to be trial judge. Id. (quoting Rutledge, 10 N.C. App. at 432, 179 S.E.2d at 166). Here, respondent-mother did not request appointment of a guardian ad litem. Although the motion to terminate parental rights alleges respondent-mother was incapable of providing for the proper care and supervision of Mary, the petition does not allege that the incapability was due to some mental defect, mental illness, or lack of understanding. Further, nothing in the motion suggests that respondent-mother is, in the words of N.C. Gen. Stat. § 7B-1101.1(c), incompetent or has diminished capacity and cannot adequately act in his or her own interest. -6Finally, respondent-mother s raise question a about her conduct at the competency hearing as did not respondent-mother testified on her own behalf and asserted her own interest in retaining her parental rights to Mary. the trial court did not abuse its Accordingly, we conclude discretion by failing to appoint a guardian ad litem for respondent-mother. III. Findings of Fact Respondent-mother next challenges several findings of fact. We only address challenged findings 15 through 17, 35 through 38, and 40, which we find necessary to support the trial court s conclusion that grounds existed under N.C. Gen. Stat. § 1111(a)(2). We note that respondent-mother also 7B- challenges findings 19, 20, 42, and 43; however, we need not address the additional because arguments they conclusions, regarding are and reversible error. the unnecessary any error in other to them findings support would of its not fact ultimate constitute In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006). The first set of challenged findings of fact pertain to respondent-mother s therapy with licensed counselor James (James): 35. That the Respondent into evidence a Mother introduced mental health Deborah -7assessment conducted by Deborah of Assisted Care Health and Home Specialists dated July 26, (hereinafter referred to as the Evaluation ). James Care 2010 New 36. That the New Evaluation indicated that the Respondent Mother suffers from bipolar disorder, post traumatic stress disorder, and borderline personality disorder. 37. That the New Evaluation also indicated that the Respondent Mother had a pattern of disturbance in interpersonal relationships, emotional instability, reactivity, and aggression. The New Evaluation also indicated that she has poor insight into the etiology of her problems and her role in relationships. 38. That the New Evaluation further indicated that the Respondent Mother suffers from sleep disturbance, poor appetite, anger, irritability, agitation, aggression, poor trust, low threshold for tolerance, poor memory, poor concentration, blames others, anxiety, racing thoughts, and avoidance. Respondent-mother does not contend that these findings are not supported by clear, cogent, and convincing evidence. Rather, she contends the trial court mischaracterizes Deborah James treatment plan with [respondent-mother] psychological evaluation, dubbed, New Evaluation. as a Finding of Fact No. 35, however, clearly states that Respondent Mother introduced into evidence a mental health assessment conducted by -8Deborah James[.] (Emphasis added.) The trial court merely labeled James assessment as New Evaluation to be consistent with the label given to respondent-mother s 2007 psychological evaluation, which the trial court labeled Mother s Evaluation. Respondent-mother s argument is without merit. The second set of challenged findings of fact pertain to respondent-mother s out-of-home service agreement: 15. That the Respondent Mother only completed her parenting classes. 16. That the Respondent Mother failed to complete domestic violence counseling and failed to complete mental health therapy. 17. That the Respondent Mother has also failed to obtain stable housing having resided in four locations within Sampson County and six locations within Bladen County since the Juvenile was born. . . . . 40. That as of today s date, the Respondent Mother has failed to complete her out of home services agreement with DSS. Respondent-mother argues that the trial court s findings ignore testimony that at the time of the termination hearing, she had been participating in therapy with James and had been living with her February 2010. youngest son s paternal grandparents since -9Respondent-mother asserts that this testimony shows that she met the requirements of stable housing and mental health therapy, thereby negating the findings that she only completed parenting classes agreement. of fact and she to complete her service We disagree and conclude the trial court s findings are supported by King Barbara failed ( King ) and testimony from DSS respondent-mother, social and worker documents received into evidence at the hearing. As to respondent-mother s counseling and class requirements, King testified that DSS had referred respondentmother to services; Residential that and Supportive respondent-mother had Services not ( RASS ) completed for domestic violence classes or mental health therapy; and that [t]he only thing that classes. she completed all together [sic] was parenting Specifically, King testified that respondent-mother did not complete the twenty-six week domestic violence and anger management therapy at U-Care nor did she complete mental health therapy with Linda Newsome. In addition, the executive director of RASS informed DSS in a letter dated 6 January 2010 that respondent-mother had attended three out of ten Behavioral Management Counseling sessions. Further, therapist Dwight -10Dunning informed DSS that respondent-mother had failed to attend therapy sessions. Contrary to respondent-mother s argument, the trial court did not ignore respondent-mother s evidence participating in therapy with James. made findings with James of in fact Finding concerning of Fact that she was In fact, the trial court respondent-mother s Nos. 35 through therapy 39. More importantly, however, the evidence shows that respondent-mother was participating hearing, not that in therapy she had with James completed at the mental time health of the treatment which was required by the out-of-home service agreement. With King respect testified to that respondent-mother s respondent-mother housing had requirement, moved about seven times since March 2009, when Mary was removed from respondentmother s custody. Respondent-mother admitted that seven times since DSS s involvement in her case. she moved Respondent- mother also testified that she had been living with the paternal grandparents of her youngest son since February 2010 and was seeking Section 8 housing. The paternal grandfather testified that respondent-mother has a bedroom in his three-bedroom trailer and she can stay as long as she likes. The trial court took into account respondent-mother s living arrangements with -11the grandparents when it found, in unchallenged Finding of Fact No. 18, that Respondent Mother currently resides in the home of friends who have provided her the home and who also assist her financially. Because the evidence shows that respondent-mother did not complete domestic violence counseling, did not complete mental health therapy, and did not obtain stable housing, the trial court properly found in Finding of Fact No. 40 that respondentmother failed to complete her out-of-home services agreement at the time of the termination hearing. Respondent-mother s argument that Findings of Fact 15, 16, 17 and 40 are unsupported by the evidence is without merit. trial court s challenged Accordingly, we conclude the findings of fact are supported by clear, cogent, and convincing evidence. IV. Grounds for Termination Respondent-mother also contends the trial court s findings of fact do not support the conclusion that she willfully failed to make reasonable 1111(a)(2). progress Respondent-mother under N.C. asserts Gen. that Stat. because § she 7Bmade progress early on in the case and completed parenting classes, the trial court erred in concluding that willfully failed to make reasonable progress. respondent-mother -12Under section 7B-1111(a)(2) of the North Carolina General Statutes, a court may terminate parental rights on the ground [t]he parent has willfully left the juvenile in foster care or placement showing outside to the the home for satisfaction of more the than 12 court months that without 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). The willful leaving of the child is something less than willful abandonment and does not require a showing of fault by the parent. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996) (citations omitted). A finding of this ground may be made when the parent has made some attempt to regain custody of the child but has failed to show reasonable and positive progress. In re Nolen, 117 N.C. App. 693, 699-700, 453 S.E.2d 220, 224-25 (1995). A finding of willfulness is not precluded even if the respondent has made some efforts to retain custody of the children. Id. Mary was removed from respondent-mother s custody due to allegations of domestic violence issues, untreated mental health issues, and respondent-mother s acting inconsistent with her parental duties such that her two older children were placed with a relative. In addition to the challenged findings, the -13trial court also made the following unchallenged findings to support its conclusion that respondent-mother failed reasonable progress: 18. That the Respondent Mother currently resides at the home of friends who have provided her the home and who also assist her financially. . . . . 21. That the Respondent Mother was involved in a domestic violence incident as late as October 2010. 22. That the Respondent Mother applied to Residential and Supportive Services (hereinafter referred to as RASS ) on or about July 15, 2009, to fulfill her out of home services agreement with DSS. 23. That the Respondent Mother was referred by RASS to receive parenting classes, stress management, anger management, domestic violence sessions, substance abuse counseling, and a psychological evaluation. 24. That a mental health assessment was performed on the Respondent Mother by RASS on or about July 28, 2009, and from said assessment it was recommended that the Respondent Mother receive community support services, outpatient therapy, outpatient behavioral management counseling which includes parenting and anger management, psychiatric medication management, and possible future psychological testing to rule [out] bipolar disorder. 25. That the Respondent Mother only attended three out of 10 behavioral management counseling sessions with RASS and RASS to make -14indicates that during these three sessions it became clear that the Respondent Mother was attending only because of her out of home service agreement with DSS. 26. That the Respondent Mother only attended three out of eight individual therapy sessions with RASS. Here, the trial court s challenged and unchallenged findings of fact show that as of the date of the termination hearing, respondent-mother did not, as her out-of-home service agreement required, complete domestic violence counseling, complete mental health therapy, and obtain stable housing. Further, contrary to respondent-mother s assertion, the trial court was not required to make findings that her failure to make progress was mental limitations. willful in light of [her] undisputed Respondent-mother cites to In re J.G.B, 177 N.C. App. 375, 628 S.E.2d 450 (2006) and In re Matherly, 149 N.C. App. 452, 562 S.E.2d 15 (2002) to support her assertion. However, these cases deal with age-related limitations and are inapplicable here. See Matherly, 149 N.C. App. at 455, 562 S.E.2d at 18 (court must make specific findings of fact showing that a minor parent s age-related limitations as to willfulness have been adequately considered ). By failing to take steps to become responsible so as to be able to remove Mary from foster care, respondent-mother clearly fulfilled the willfulness -15requirement of N.C. Gen. Stat. § 7B-1111(a)(2). We hold that the trial court s findings of fact provide ample support for the trial court s conclusion of law that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(2) supporting termination of respondentmother s parental rights. Accordingly, we affirm the trial court s order terminating respondent-mother s parental rights. Affirmed. Judges HUNTER (Robert C.) and THIGPEN concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.