In Re: M.H
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-768 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 IN THE MATTER OF: M.H., a Minor Child. Appeal 2011 by by Judge Person County No. 09 JT 61 respondent-father Mike Gentry in from order Person entered County 28 March District Court. Person County Heard in the Court of Appeals 28 November 2011. No brief filed for petitioner-appellee Department of Social Services. Duncan B. McCormick for respondent-appellant father. Pamela Newell for the guardian ad litem. HUNTER, JR., Robert N., Judge. H.H. ( respondent ) appeals from an order terminating his parental rights to his minor child, M.H. ( the juvenile ). Because respondent s failure to comply with the terms of his case service plan constitutes willful failure to make reasonable progress to correct the conditions which led to the removal of the juvenile from his custody, we affirm. -2The juvenile was born severely premature in January 2007 and remained in the hospital for several months after birth. As a result of his premature birth, the juvenile has significant developmental tube. delays and requires feeding through gastric On 8 July 2009, the juvenile was admitted to the hospital and was diagnosed with failure to thrive. was a in the hospital, respondent was While the juvenile arrested for writing worthless checks. On 15 July 2009, the Person County Department of Social Services ( DSS ) filed a juvenile petition alleging the juvenile was neglected and dependent, and obtained nonsecure custody of the juvenile. After a hearing on 24 August 2009, the trial court entered an adjudication and disposition order concluding the juvenile was a neglected and dependent juvenile. continued custody of the juvenile with DSS and The court ordered respondent to cooperate with DSS and establish a case service plan regarding the juvenile. The court further ordered respondent to submit to random drug screening. By order entered 24 August 2010, the trial court changed the permanent adoption. plan for the juvenile from reunification to The court found respondent had rarely visited the juvenile and had refused direct contact with the DSS social -3worker. The court also found that respondent had disagreed with the treatment recommendations for the juvenile made by both DSS and the juvenile s physicians. DSS filed a motion rights on 5 October 2010. January 2011, the trial to terminate respondent s parental After a hearing on 24, 26 and 28 court entered an order respondent s parental rights to the juvenile. terminating The court found grounds to terminate respondent s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect) and N.C. Gen. Stat. § 7B-1111(a)(2) (failure to make reasonable progress to correct the conditions that led to the removal of the juvenile). Respondent timely filed a notice of appeal with this Court on 5 April 2011. Respondent argues the trial court erred in concluding that he failed to correct the conditions that led to the removal of the juvenile from his care. Respondent argues that the specific conditions that led to the juvenile s removal from his care were that (1) respondent was in jail, (2) the child had been hospitalized due to his failure to thrive, and (3) respondent had not followed the doctor s instructions as to feeding the juvenile. Respondent contends that he was out of jail at the time of the hearing, that the juvenile had considerably improved -4during the corrected pendency the of conditions juvenile from his care. the juvenile which case, led to the and thus he has removal of the Respondent further contends that his failure to comply with the case service plan does not support the trial court s conclusion that he willfully failed to make reasonable progress to correct the conditions that led to the juvenile s removal from his care. Respondent s arguments are misplaced. The standard for 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. In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984). findings of fact which an appellant does The trial court s not specifically dispute on appeal are deemed to be supported by sufficient evidence and are binding on appeal. 35, 43, 682 S.E.2d 780, 785 In re M.D., 200 N.C. App. (2009). However, [t]he trial court s conclusions of law are fully reviewable de novo by the appellate court. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation omitted). Grounds exist for termination of parental rights when: The parent has willfully left the juvenile in foster care or placement outside the home -5for 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. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty. N.C. Gen. established Stat. when § 7B-1111(a)(2) the respondent (2009). had the Willfulness ability to reasonable progress, but was unwilling to make the effort. is show In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (2001). Here, the trial court made the following relevant findings in support of its conclusion that grounds existed to terminate respondent s parental rights based on his willful failure to make reasonable progress to correct the conditions which led to the removal of the juvenile from his care: 15. Ms. Love[, the DSS social worker for the juvenile,] made contact early in this case with [respondent] with respect to establishing a case plan; . . . . 17. [Respondent] did not wish to discuss a case plan with her, and he informed Ms. Love to put into the proposed plan what she thought was important, and send same to his attorney; 18. Petitioner introduced, without objection, Exhibit #1, identified by Ms. Love as the proposed case plan she prepared -6for [Respondent]; 19. [Respondent] testified in Court that he had never seen [his case plan] in the eighteen months this case has been pending; 20. . . . [T]he proposed case plan had four major components, to wit: referral of the father for psychological evaluation, referral of the father for a parenting program, referral for a substance abuse evaluation and having the father participate in a Court ordered visitation plan; 21. Ms. Love chose to recommend those activities due to being aware of the father s history of depression, and receiving information as to his usage of recreational drugs from the investigative social worker; 22. The social worker chose the parenting program aspect because of the child s medical diagnosis of failure to thrive , and the Court s findings that the father regularly disagreed with the child s treating physicians as to medical issues and feeding; . . . . 24. The social worker chose the activities with respect to a visitation plan in order to assess the father s ability to learn how to care for his child, and for her to assess the child s relationship with the father; . . . . 28. Initially, DSS worked to get the father to meet with the foster mother to be assisted in nutritional education and proper care for the child s condition; -729. The instructional settings did not go well, and they were suspended; . . . . 33. DSS made weekly visitation with the child available to the father, but he chose not to attend all those visits; . . . . 39. [Respondent] has not shown that he has a reasonable residence in which to care for his child; . . . . 43. The father never attended a substance abuse evaluation; 44. The father did attend a number of drug screens, which access both his urine and his hair follicles; 45. A significant number of those tests show the father positive for some controlled substance including: cocaine, benzodiazepine, oxycontin, oxycodone, extended opiates and other substances . . .; 46. The father was not always positive for all of these substances but he was usually positive for some; . . . . 49. The father testified on this date that he has had medical issues that required prescription medications and that he had prescriptions for such medications, but he did not produce same in Court on this date; 50. [Respondent] also testified that the only reason he could think of for having a -8positive test for substance was in taking; cocaine was that such the medicines he was 51. The father was requested to submit to a psychological evaluation; 52. He declined to participate at the request of Ms. Love, responding to her that I am not crazy ; . . . . 54. The father declined to participate in a parenting program; . . . . . . . 65. The father declined to engage in reunification efforts with Person County DSS; . . . . 77. The father has not done what he needs to do in order to have his child returned to him; 78. [Respondent] had a family services road map (Out of Home Family Services Agreement) laid out for him by DSS, and he has not followed that; 79. The father has not been cooperative with Ms. Love; . . . . 117. [The juvenile] has spent over eighteen months in foster care, due to the father s inactions as documented in the case file, as well as in this Order. -9Respondent does not contest any of the trial court s findings of fact, and they are thus binding upon this Court on appeal. conclude the trial court s findings of fact support We its conclusion that grounds exist to terminate respondent s parental rights in that respondent willfully left the juvenile in a placement outside the home for more than twelve months without showing to the satisfaction of the court that he made reasonable progress conditions under the which circumstances led to the toward removal of correcting the juvenile those from respondent s care. Respondent s contention that his failure to comply with the case service plan does not support the trial court s conclusion that he willfully failed to make reasonable progress to correct the conditions that led to the juvenile s removal from his care is without merit. This Court has held that a respondent s prolonged to inability improve [his] situation, despite some efforts in that direction, will support a finding of willfulness regardless of [his] good intentions, and will support a finding of lack of progress during the year preceding the DSS petition sufficient to warrant section 7B-1111(a)(2). termination of parental rights under In re J.W., 173 N.C. App. 450, 465-66, 619 S.E.2d 534, 545 (2005) (quoting In re B.S.D.S., 163 N.C. -10App. 540, 546, 594 S.E.2d 89, 93 (2004)). The components of respondent s case service plan were all designed to ensure that should the juvenile be returned to respondent s custody, the juvenile would not be subjected to any potential condition that might again cause him to return to the hospital for failing to thrive. Moreover, DSS alleged in the initial juvenile petition that respondent had been having problems with depression for months, abuse and first problems learned after of a respondent s drug test possible on 13 substance August 2009. Accordingly, we hold respondent s failure to make any progress toward compliance with his case service plan supports the trial court s conclusion that he willfully failed to make reasonable progress to correct the conditions which led to the removal of the juvenile from his care. Because we hold the trial court did not err in concluding grounds existed to terminate respondent s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), we do not address respondent s arguments regarding the court s conclusion that grounds also existed to terminate his parental rights under N.C. Gen. Stat. ' 7B-1111(a)(1). 618 S.E.2d 241, 246 (2005) In re P.L.P., 173 N.C. App. 1, 8, ( [W]here the trial court finds multiple grounds on which to base a termination of parental -11rights, and an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, grounds. it is (citation unnecessary to address omitted)). Accordingly, the we remaining affirm the trial court s order terminating respondent s parental rights to the juvenile, M.H. Affirmed. Judges STEELMAN and GEER 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.
