In The Matter Of: A.W.A
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-690 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 IN THE MATTER OF: A.W.A., A Minor Child. Catawba County No. 09 JT 172 Appeal by respondent from order entered 21 April 2011 by Judge J. Gary Dellinger in Catawba County District Court. Heard in the Court of Appeals 10 October 2011. J. David Abernethy for petitioner-appellee Catawba County Department of Social Services. Harrington, Gilliland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for respondent-appellant mother. Pamela Newell for guardian ad litem. ERVIN, Judge. Respondent-Mother Maria A. appeals from an order entered by the trial court terminating her parental rights in A.W.A.1 On appeal, Respondent-Mother argues that the trial court erred by concluding that grounds existed to support the termination of her parental rights. 1 After careful consideration of Respondent- A.W.A. will be referred to throughout the remainder of this opinion as Adam for ease of reading and to protect the juvenile s privacy. -2Mother s challenges to the trial court s order, we conclude that the trial court s order should be affirmed. I. Factual Background Prior Catawba to the County initiation Department of of the present Social proceeding, Services had the already intervened in the life of Respondent-Mother s family for the purpose of addressing issues arising from the care that Respondent-Mother provided to another child who is no longer in her custody. department After Adam was evaluated by the speech and hearing at the North Carolina Baptist Hospital, which determined that Adam had a high frequency hearing loss in each ear and referred him to an audiologist for a hearing aid fitting in 2006, and Respondent-Mother failed to take appropriate action to address Adam s hearing deficiencies, DSS became involved in the manner in which Respondent-Mother cared for Adam as well. On 21 May 2007, DSS received a report that RespondentMother s alcohol abuse had created an injurious environment for Adam. According to previous reports, Respondent-Mother drank alcohol and smoked marijuana while caring for her children. On 29 June 2007, DSS determined the family was in need of services. Over the course of the next two years, Respondent-Mother resisted taking Adam to get the recommended hearing aids and failed to cooperate with DSS in addressing other issues, -3including obtaining a substance abuse assessment after she was involved in an automobile accident. placed with a relative. In February 2009, Adam was In April 2009, a therapist recommended that Respondent-Mother receive twenty hours of substance abuse treatment and referred Respondent-Mother for a psychological evaluation. On 12 June 2009, DSS filed a petition alleging that Adam was a neglected juvenile. On 8 August 2009, the trial court entered an order finding that Adam was a neglected juvenile and placing him in DSS custody. The trial court ordered Respondent- Mother to complete twenty hours of substance abuse treatment; to refrain from exposing psychological to evaluation recommendations; parenting Adam to classes; substance and complete to abuse; follow a all parenting demonstrate to obtain treatment assessment age-appropriate a and parenting skills; to maintain independent, stable, and appropriate housing and employment; to successfully verbalize the effects of adult substance abuse on Adam; and to be in a position to provide a safe and stable home for Adam. In a review order entered on 10 November 2009, the trial court Adam s found that father further would be efforts futile toward and attempting to reunify Adam with him. reunification ordered DSS to with cease However, the trial court -4ordered DSS to continue to attempt to reunify Adam and Respondent-Mother and ordered Respondent-Mother to comply with her case plan. After that review hearing, Respondent-Mother failed to complete parenting classes in a timely manner, missed drug tests, submitted a diluted required child support payments. changed jobs several specimen, and did not make In addition, Respondent-Mother times. Adam s father voluntarily relinquished his parental rights in Adam on 22 June 2010. On or about an order reunification with 13 September changing Adam s Respondent-Mother 2010, the permanent to trial plan adoption court from and entered authorized DSS to cease attempting to reunify Adam with Respondent-Mother. On 13 October 2010, DSS filed a motion to terminate Respondent-Mother s parental rights in Adam on the grounds that (1) Adam was neglected; (2) Respondent-Mother had willfully left Adam in foster care for more than twelve months without making reasonable progress toward correcting the conditions that led to his removal from the home; and (3) Respondent-Mother failed to pay a reasonable continuous motion. period portion of of months six the cost of Adam s prior to the care filing for of a the Respondent-Mother filed an answer on 4 November 2010 in which she denied the material allegations of the DSS motion. -5The termination petition came on for hearing before the trial court on 28 March 2011. DSS offered the testimony of a social worker, a child support agent, and the office manager of the audiology clinic at which Adam had received treatment. response, Respondent-Mother testified on her own behalf entered an In and presented testimony from another lay witness. On 21 April 2011, the trial court terminating Respondent-Mother s parental rights in Adam. order In the adjudication portion of its order, the trial court concluded that Respondent-Mother s parental rights in Adam were subject to termination on the basis of all three grounds for termination alleged in the petition. In the dispositional portion of its order, the trial court concluded that it was in Adam s best interest to terminate Respondent-Mother s parental rights, thereby making it possible to implement the permanent plan of adoption. Respondent-Mother noted an appeal to this Court from the trial court s order. II. Legal Analysis On appeal, Respondent-Mother challenges the trial court s determination that three parental rights in Adam. grounds existed to terminate her We do not find Respondent-Mother s challenge to the trial court s termination order persuasive. A. Standard of Review -6At the adjudication stage of a termination of parental rights proceeding, the burden is on the petitioner to prove that at least one of the statutory grounds for termination exists by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B- 1109(f); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 parental (2001). rights Appellate is limited to review of determining orders terminating whether sufficient evidence exists to support the trial court s findings of fact and whether the trial conclusions of law. court s findings of fact support its In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9-10 (2001). Respondent-Mother s Although the trial court concluded that parental rights in Adam were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (3), the fact that the record supports the trial court s determination subject to that Respondent-Mother s termination pursuant to parental N.C. Gen. rights Stat. were § 7B- 1111(a)(2) is dispositive of her challenge to the trial court s termination order. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426-27 (2003) (a finding of one statutory ground is sufficient to support the termination of parental rights). B. Failure to Make Reasonable Progress -7In subject evaluating to whether termination a parent s pursuant to parental N.C. Gen. rights Stat. § are 7B- 1111(a)(2), a trial judge must conduct 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. Evidence and findings which support a determination of reasonable progress may parallel or differ from that which supports the determination of willfulness in leaving the child in placement outside the home. 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). Willfulness when terminating parental rights on the grounds of N.C. Gen. Stat. § 7B-1111(a)(2), is something less than willful abandonment when terminating on the ground of N.C. Gen. Stat. § 7B-1111(a)(7). . . . A finding of willfulness is not precluded even if respondent has made some efforts to regain custody of the children. In re Shepard, 162 N.C. App. 215, 224, 591 S.E.2d 1, 7 (internal citation omitted), disc. review denied sub. nom. In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). In this case, the trial court s findings of fact, which track the factual statement set forth above, adequately support -8its conclusion that Respondent-Mother failed to make reasonable progress toward correcting the conditions that led to Adam s removal describe from in the home. detail The trial court s Respondent-Mother s findings ongoing of history fact of substance abuse and lack of adequate treatment, her refusal or failure to submit to drug screens, the instability in her employment situation, her inability to provide for or accept the need for Adam to receive appropriate medical treatment, and her failure to comply with other provisions of her case plan. As the trial court stated in summarizing its findings concerning the extent of Respondent-Mother s compliance with the terms and conditions of her case plan: The mother has failed to comply with the terms of her case plan and the orders of this Court, both of which were designed to assist her in rectifying the conditions that brought the child into the purview of this Court and into foster care. More specifically, she has failed to: comply with random alcohol and drug screens; obtain a new substance abuse assessment and comply with its recommendations; participate in long-term substance abuse treatment[], such as Alcoholics Anonymous; timely complete parenting classes; demonstrate an understanding of the child s special needs; maintain stable employment; regularly provide the social worker and the Guardian ad Litem with her rent receipts and pay stubs; refrain from obtaining new criminal charges; and comply with the recommendations of her psychological evaluation. -9We hold that these findings accurately reflect and are supported by the evidence presented at the adjudication phase of the termination hearing,2 including the testimony that RespondentMother provided on her own behalf, and that they support the trial court s determination that Respondent-Mother s parental rights in Adam were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Respondent-Mother s challenge to the trial court s decision that her parental rights in Adam were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) is premised on the claim that Adam was removed from her home based solely on her failure to alcohol obtain use on obtain Adam medical February 4 medical [o]nce proper 2009, treatment was removed for treatment that [Adam] from her she or for him was obtain custody, and powerless hearing that she her to aids made reasonable progress in complying with her case plan to address the concerns deficiencies that in her led to Adam s performance removal, upon which and the that trial the court relied had no relevance to correcting those conditions that led to the removal of the juvenile. 2 A careful examination of the In making this determination, we note that RespondentMother has not questioned the accuracy of or evidentiary support for any of these findings of fact. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). -10record establishes, however, that Adam was removed from the home for multiple reasons, including Respondent-Mother s substance abuse and her failure to recognize and adequately address his special needs.3 The case plan provisions with which Respondent- Mother to comply which led failed circumstances were, to in Adam s fact, related removal from to the Respondent- Mother s home, given that Respondent-Mother failed to adequately address her difficulties with substance abuse, failed to understand and appreciate Adam s special needs, and failed to develop a stable lifestyle that rendered a repetition of the problems that led to the decision to take Adam into DSS custody unlikely. support As a result, we hold that the trial court s findings the conclusion that Respondent-Mother failed to make reasonable progress toward correcting the conditions that led to Adam s removal from her home and that the trial court s order terminating Respondent-Mother s parental rights in Adam should be, and hereby is, affirmed. AFFIRMED. Judges BRYANT and ELMORE concur. Report per Rule 30(e). 3 Although Respondent-Mother distinguishes between alcohol and drug abuse in her brief and argues that only alcohol abuse is relevant to the proper resolution of this proceeding, we are not persuaded that such a distinction accurately reflects the circumstances that led to Adam s removal from RespondentMother s care.
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