In The Matter Of: S.H. and S.M
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-745 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 IN THE MATTER OF: S.H., S.M. Wake County Nos. 08 JT 639 09 JT 195 Appeal by respondent from order entered 23 March 2011 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 24 October 2011. Office of the Wake County Attorney, by Assistant County Attorneys Suzanne Padgett and Lucy Chavis, and Deputy County Attorney Roger A. Askew, for petitioner-appellee Wake County Human Services. Robert W. Ewing for respondent-appellant mother. Pamela Newell for guardian ad litem. ERVIN, Judge. Respondent-Mother Renee M. appeals from terminating her parental rights in S.H. and S.M.1 an order On appeal, Respondent-Mother argues that the trial court failed to properly 1 S.H. and S.M. will be referred to throughout the remainder of this opinion as Sarah and Susan, respectively, which are pseudonyms used to protect the juveniles privacy and for ease of reading. -2consider the extent to which any failure on her part to make reasonable progress toward correcting the conditions that led to the removal of the juveniles from her home was willful given her cognitive limitations. Respondent-Mother s After challenge to careful the consideration trial of court s in order light of the record and the applicable law, we conclude that the trial court s order should be affirmed. I. Factual Background On 21 October 2008, Wake County Human Services received a report alleging that Respondent-Mother had neglected Sarah. The report alleged that Respondent-Mother was using marijuana while caring for Sarah and that Respondent-Mother had left the child for extended periods of time without telling Sarah s caretaker when she would return. In addition, WCHS learned that Respondent-Mother was homeless and could not provide Sarah with stable housing. Respondent-Mother had a history of mental health and substance abuse problems. On 4 November 2008, WCHS filed a petition alleging that Sarah was a neglected and dependent juvenile. WCHS obtained non-secure custody of Sarah. At the same time, On 29 May 2009, the trial court entered an adjudication and disposition order in which it found that Sarah was a neglected juvenile and ordered Respondent-Mother to: (1) obtain sufficient housing and income; -3(2) follow evaluation, the recommendations including made participation in in a psychological individual counseling; (3) comply with the recommendations made in a substance abuse assessment; (4) comply with efforts to establish Sarah s paternity; (5) meet with WCHS to discuss appropriate residential programs; (6) maintain regular contact with WCHS; and (7) visit with Sarah. On 12 Susan. At August that 2009, time, WCHS received a Respondent-Mother referral was concerning still homeless. Hospital personnel were reluctant to release Susan, a newborn, to Respondent-Mother because she had not made arrangements for Susan s care outside of the hospital. On 14 August 2009, WCHS filed a petition alleging that Susan was a dependent juvenile and took her into its custody. On 23 October 2009, the trial court entered an adjudication and disposition order in which it found Susan to be a dependent juvenile and ordered RespondentMother to comply with requirements substantially similar to those imposed in the adjudication and disposition order entered with respect to Sarah. The trial court held a placement review and permanency planning hearing concerning both juveniles on 4 January 2011. On 7 February 2011, the trial court entered an order changing the permanent plan for both Sarah and Susan to adoption and -4ordered WCHS to take the steps necessary to effectuate this permanent plan. On 2 June 2010, WCHS filed a petition to terminate Respondent-Mother s parental rights in Sarah on the grounds that Sarah was neglected; that Respondent-Mother had willfully left Sarah in foster care for more than 12 months without making reasonable progress toward correcting the conditions that led to Sarah s removal from the home; and that, despite the fact that Sarah had been in WCHS custody for a period of six months, Respondent-Mother had failed to pay a reasonable portion of the cost of Sarah s care during that time. On 30 September 2010, WCHS filed a petition to terminate Respondent-Mother s parental rights in Susan, with this request predicated upon the same grounds for termination that had been asserted with respect to Sarah. The issues raised by the WCHS petitions came on for adjudication on 4 February 2011 and for disposition on 17 February 2011. On 23 March 2011, the trial terminating Respondent-Mother s and Susan. In reaching this court entered parental rights conclusion, in the an order both Sarah trial court determined that Respondent-Mother had willfully failed to make reasonable progress toward correcting the conditions that had led to the removal of both juveniles from her home, N.C. Gen. -5Stat. § 7B-1111(a)(2), and that Sarah was neglected. Stat. § 7B-1111(a)(1). At disposition, the N.C. Gen. trial court concluded that it was in the best interests of both children that Respondent-Mother s parental rights be terminated. Respondent-Mother noted an appeal to this Court from the trial court s order. II. Legal Analysis In her sole Respondent-Mother challenge contends to the that trial the trial court s court order, erred by concluding that her parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) because the cognitive limitations to which she was subject precluded the We disagree.2 necessary finding of willfulness. At the adjudicatory stage of a termination of parental rights hearing, the petitioner has the burden of proving the existence of at least one ground cogent, and convincing evidence. for termination by clear, N.C. Gen. Stat. § 7B-1109(f); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). 2 Appellate review of an order terminating a parent s We note that Respondent-Mother has not challenged the trial court s determination that her parental rights in Sarah were subject to termination for neglect. As a result, Respondent-Mother acknowledges in her brief that she has effectively abandoned her challenge to the termination of her parental rights in Sarah. -6parental rights is limited to determining whether clear and convincing evidence exists to support the trial court s findings of fact and whether the court s conclusions of law. findings of fact support the trial 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 (2001). In considering a request for the termination of a parent s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the trial court 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. and O.B., 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 for purposes 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). In re Shepard, -7162 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). Evidence showing a parent s ability, or capacity to acquire the ability, to overcome factors which resulted in their children being placed in foster care must be apparent for willfulness to attach. 149 N.C. App. 452, 455, 562 S.E.2d 15, In re Matherly, 18 (2002) (citation omitted). After thoroughly reviewing the record, we conclude that the evidence and the trial court s findings of fact adequately support the trial court s determination that Respondent-Mother had willfully correcting the failed to conditions children from her home. make that reasonable led to progress the removal toward of the Finding of Fact No. 25 describes the steps that Respondent-Mother was required to take before Sarah and Susan could be returned to her care, including obtaining stable housing and employment and participating in therapy and counseling. Findings Respondent-Mother s of Fact subsequent Nos. 40 through 49 history of illustrate unstable housing, including the fact that she may have violated the terms of her current lease by engaging in criminal activity. Fact Nos. inconsistent 50 through employment 57 history, Findings of describe Respondent-Mother s including the fact that her -8current job involved inconsistent work hours and failed to provide her with sufficient income to permit her to care for herself and the children. Findings of Fact Nos. 77 through 80 recount Respondent-Mother s sporadic participation in therapy and counseling. As a result of the fact that Respondent-Mother has not challenged any of these findings on appeal, we hold that each of them is binding for purpose of appellate review. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Instead of challenging the sufficiency of the evidence to support the trial court s findings of fact, Respondent-Mother contends that the trial court failed to adequately consider her cognitive limitations in determining that she willfully failed to make reasonable progress toward correcting the that led to the children s removal from her home. Respondent-Mother argues that her failure to make conditions In essence, reasonable progress stemmed from her cognitive limitations and that this fact precluded the trial court from concluding that her failure to make reasonable progress was willful. We do not find this argument to be persuasive. Respondent-Mother s argument is largely based on the testimony of Tina Lanier, who taught Respondent-Mother parenting skills in the Families on the Grow program, which attempts to assist parents who are subject to cognitive limitations. Ms. -9Lanier did testify that, although Respondent-Mother successfully completed the Families on the Grow program, she was easily distracted Lanier, and the sometimes original asked social irrelevant worker questions. assigned to Erin this case, testified, that Respondent-Mother refused to take responsibility for the conditions that led to the removal of the juveniles from her care and never indicated that Respondent-Mother was incapable of understanding those conditions or the steps that she needed to take in order to remedy them. In addition, we note that social worker Kimaree Sanders, who was assigned to this matter at the time of the hearing, provided no basis in her testimony for believing that Respondent-Mother s failure to make reasonable progress should be excused as a result cognitive limitations to which she was subject. of any Despite the fact that she testified at the adjudication hearing and had an adequate opportunity Respondent-Mother show she severity Thus, suffers to the has present not from preclude record to or simply evidence identified any on her evidence cognitive limitations undermine a does not finding suggest of own behalf, tending to sufficient of willfulness. that Respondent- Mother s failure to make reasonable progress toward correcting the conditions that led to the children s removal from her home -10stemmed from any cognitive limitations to which she might have been subject. Moreover, findings we note demonstrate that that several it of the considered trial court s Respondent-Mother s cognitive abilities in reaching its conclusion that her parental rights in Sarah and Susan were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). through 65 address Findings of Fact Nos. 61 Respondent-Mother s Families on the Grow program. participation in the A careful reading of those factual findings demonstrates that the trial court considered the testimony evidence of relating Ms. to Lanier, along with the Respondent-Mother s other record capabilities, in determining the extent to which Respondent-Mother had willfully failed to make reasonable progress. For that reason, we conclude that the trial court s factual findings demonstrate an awareness of any cognitive limitations to which Respondent- Mother was subject and that the trial court took that evidence into account in making its willfulness determination. As a result, given the absence of any evidence tending to show that Respondent-Mother s failure to make reasonable progress toward eliminating the conditions that led to the removal of the children from her home resulted from cognitive limitations and the fact that the trial court s findings of fact demonstrate -11that it adequately considered any cognitive limitations to which Respondent-Mother was subject in making its willfulness determination, we conclude that Respondent-Mother s challenge to the trial subject court s to conclusion termination that pursuant to her parental N.C. Gen. rights Stat. § were 7B- 1111(a)(2) lacks merit and that the trial court s order should be affirmed. AFFIRMED. Judges BRYANT and ELMORE concur. Report per Rule 30(e).
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