In re Z.P-S

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1378 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 IN THE MATTER OF: Durham County No. 07 JT 34 Z.P.-S. Appeal by Respondent-mother from order entered 30 September 2013 by Judge Nancy E. Gordon in Durham County District Court. Heard in the Court of Appeals 19 May 2014. Assistant County Attorney Robin K. Martinek for Petitioner Durham County Department of Social Services. Edward Eldred for Respondent-mother. Poyner & Spruill, LLP, by Andrew Erteschik Virginia McMillan, for Guardian ad Litem. and Carrie STEPHENS, Judge. Respondent-mother terminating her appeals parental from rights to the trial Z.P.-S. court s ( Zabia ).1 order We affirm. 1 The parties stipulated to the use of the pseudonym Zabia to protect the identity of the juvenile and for ease of reading. -2On 7 February 2007, the Durham County Department of Social Services ( DSS ) filed a juvenile petition alleging that sixmonth-old Zabia was a neglected and dependent juvenile. time, Respondent-mother was a minor. At the The petition alleged that Respondent-mother had mental health issues, used illegal drugs, lacked stable housing, and had an unstable relationship with Zabia s father, including incidents of domestic violence. At the time of the petition, Zabia s maternal grandmother was the primary provider of care for Zabia, but Respondent-mother had shared that responsibility in the past. The petition further alleged that while Zabia was safe in the grandmother s home, conflict between interfered with Respondent-mother Zabia s care. and DSS the grandmother requested that the grandmother be given custody of Zabia. By order adjudicated entered Zabia on 14 dependent. June 2007, The court the trial found that court the adjudication of dependency was a compromise, that the parties stipulated to the findings, and that [w]hile there is evidence of neglect and of risk of neglect to the child, considering [Respondent-]mother s minority and her mental problems, there is not clear and convincing evidence of neglect by [Respondent- See N.C.R. App. P. 3.1(b). -3]mother. In the dispositional portion of the order, the trial court placed Zabia in the custody of the grandmother and ordered Respondent-mother to comply with certain directives. A few months later, the court modified its disposition by awarding DSS custody of Zabia, but maintaining Zabia s placement with the grandmother. On 14 July 2009, the court entered an order awarding guardianship to the grandmother. On 19 May 2011, DSS filed a petition alleging that Zabia was a neglected grandmother juvenile. suffered from The petition depression, was alleged not that consistent attending group therapy, and was taking double doses of sleep medication. the in her As a result, Zabia frequently missed daycare and speech therapy, which she needed for treatment of a speech impairment. The trial court entered an order on 3 October 2011 adjudicating Zabia neglected based on a finding that she did not receive necessary medical or remedial care. The court also found that Respondent-mother s housing continued to be unstable and that she had another child. The trial court kept Zabia in the guardianship of the grandmother, subject to a protection plan. On 30 March 2012, the trial court entered a permanency planning order terminating the grandmother s guardianship and -4placing Zabia grandmother in was DSS custody, struggling based with upon findings depression, had that the difficulty regulating her medication, and had tested positive for cocaine in a random drug test. Due to the grandmother s issues, Zabia had numerous absences from school and speech therapy. The court also found that Respondent-mother expressed a desire to have Zabia placed in her home, but DSS was not able to complete a home study prior to the hearing. Respondent-mother cancelled a home visit from DSS, did not want a DSS social worker to come to her home or talk to her son, and refused to provide information regarding her mental health services. Respondent-mother to cooperate with The trial court ordered DSS s home study if she wished to pursue reunification with Zabia. On 6 May 2013, DSS filed a petition to terminate Respondent-mother s parental rights to Zabia which alleged as grounds for termination: (1) neglect; (2) failure to make reasonable progress; and (3) willful failure to pay a reasonable portion of the cost of care for the juvenile. Stat. § 7B-1111(a)(1), (2), (3) (2013). the trial court entered an order on See N.C. Gen. Following a hearing, 30 September 2013 terminating Respondent-mother s parental rights based upon the conclusion that she willfully left Zabia in foster care for more -5than twelve months without making reasonable progress to correct the conditions that led to removal. The court concluded that it was in Zabia s best interest to terminate Respondent-mother s parental rights. Respondent-mother gave timely notice of appeal.2 Standard of Review A trial court may terminate parental rights upon a finding of any one of the grounds enumerated in our General Statutes. N.C. Gen. Stat. § 7B-1111(a). Respondent-mother s parental Here, the trial court terminated rights pursuant to section 7B- 1111(a)(2), to wit, that the parent willfully left the juvenile in foster care for more than twelve months, and the parent has not made reasonable progress to correct the conditions which led to the removal of the juvenile. 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). [T]o find grounds to terminate a parent s rights under [section] 7B-1111(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, 2 The trial court also terminated the parental rights of Zabia s father, but he does not appeal. -6as 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. Id. On appeal, we review the trial court s order to determine whether the trial court s findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support occur. a conclusion that parental should In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996) (citation omitted). not termination challenged on appeal are presumed Any findings of fact supported cogent, and convincing evidence and are binding. by clear, In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). Discussion Respondent-mother argues (1) that certain of the trial court s findings of fact are not supported by clear, cogent, and convincing evidence; and (2) that the court s conclusion of law that she left Zabia in foster care for twelve months without making reasonable progress to correct the conditions that led to Zabia s removal is not supported by its findings of fact. disagree. I. Challenged findings of fact We -7Respondent-mother specifically challenges finding of fact numbers 19(d), evidentiary 32, 65, support. and We 67 address as lacking the each challenged details Zabia s necessary finding in turn. Finding of fact number adjudication of dependency. 19 2007 initial In subsection (d), the trial court found that Zabia was found to have been neglected, though it was further found that due to [Respondent-m]other s minority and mental health issues, that she could not be held responsible for the neglect of [Zabia]. This finding is erroneous. In the 2007 adjudication order, the court found that, [w]hile there is evidence of considering neglect and of risk [Respondent-]mother s of neglect minority to and [Zabia], her mental problems, there is not clear and convincing evidence of neglect by [Respondent- ]mother. (Emphasis added). We agree with Respondent-mother that finding number 19(d) is not supported by competent evidence adjudication order. in that it mischaracterizes the 2007 We conclude, however, that finding of fact number 19(d) is not necessary to support the court s ultimate determination regarding Respondent-mother s failure to make reasonable progress as a ground for termination of her parental rights. Rather, finding of fact number 19 simply details part -8of the procedural history of the case. Accordingly, any error in the challenged portion of finding of fact 19 is harmless. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 41 (2006) ( When []ample other findings of fact support an adjudication of neglect, erroneous findings unnecessary to the determination do not constitute reversible error. ). Respondent-mother next takes issue with the portion of finding of fact 32 which states that, [p]rior to her discharge from her mental health treatment, [Respondent-m]other was inconsistent in attending therapy; she did not see her providers in May 2012, she participated participate in July 2012. finding is not in June 2012, but did not Respondent-mother contends that this supported by the evidence because she participated in a telephone call to her therapist on 25 July 2012. call However, the case management records describe this phone as a session. of the crisis schedule. used for contact rather than a scheduled therapy Those records further document that, at the conclusion therapy concerns crisis call, appointment the staff which she offered Respondent-mother declined, citing her a work Indeed, at the hearing, the trial court expressed that Respondent-mother s crisis management[] and therapists not for were frequently actual therapeutic -9purposes. Respondent-mother does not dispute that she often missed therapy appointments and did not attend any scheduled therapy sessions in July 2012. We conclude that this portion of finding of fact 32 is supported by clear, cogent, and convincing evidence. Respondent-mother also challenges the portion of finding of fact number 65 which states that [Respondent-m]other s excuses for missing visitation reasonable progress. were not consistent with making The undisputed evidence established that Respondent-mother did not attend visits with Zabia at Genesis House in Durham, giving no reason for missing visits between October 2012 and March 2013 except that she felt the social workers there looked down on her. Respondent-mother s excuse for missing visits after March 2013 was that she lacked gas money. The evidence, however, showed that Respondent-mother was living in Durham at a location served by public transportation which could have Respondent-mother taken notes her that to the site visitation of the issues were visits. not a condition which led to Zabia s removal in 2007, and we agree. However, Zabia s attending Respondent-mother s removal, and visitation is instability Respondent-mother s pertinent to an was a factor in inconsistency in evaluation of her -10stability as a parent. Accordingly, we conclude that the challenged portion of finding of fact 65 is supported by clear, cogent, and convincing evidence. In finding of fact 67, the trial court found that [Respondent-m]other has consistently shown a lack of progress with court ordered services and a lack of cooperation with court orders and Durham DSS. This is one of the court s ultimate findings, linking its other findings of fact to the conclusion that Respondent-mother s parental based on section 7B-1111(a)(2). rights could be terminated Respondent-mother counters that she made great progress as shown by the trial placement of Zabia with Respondent-mother statement in compliant with ordered that order that the court order, in December Respondent-mother and she 2007 and has continues to a been make [p]rogress in all areas. As noted supra, in engaging in the second part of the analysis required to terminate a parent s rights under section 7B-1111(a)(2), the trial court must determine 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., 171 N.C. App. at 465, -11615 S.E.2d at 396. In undertaking this determination, there is no specified time frame that limits the admission of relevant evidence pertaining to a parent s reasonable progress or lack thereof. Id. (citation, internal quotation marks, and emphasis omitted). Thus, while the court was not limited to considering Respondent-mother s progress during the twelve months immediately preceding the filing of the petition in May 2013, it also was not required to give greater weight to any progress made many years before the petition was filed than to the more recent years of the case. Findings of fact 22-31 detail numerous programs and services that the court ordered Respondent-mother to engage in or attend beginning in November 2011. The findings further detail her inconsistency in complying or complete failure to comply with those orders. These findings of fact demonstrate Respondent-mother s lack of progress, and, as discussed below, amply support both ultimate finding of fact 67 and the trial court s conclusion of law pursuant to section 7B-1111(a)(2). II. Conclusion of law regarding lack of reasonable progress In asserting Respondent-mother error concedes in the that trial Zabia court s was custody for the requisite amount of time. conclusion, removed from her However, Respondent- -12mother disputes the trial court s conclusion that she willfully failed to make reasonable progress in correcting the conditions that led to Zabia s removal. Specifically, Respondent-mother contends that her efforts to correct the conditions which led to Zabia s removal domestic violence addressed by actions in 2007, with such the as father, Respondent-mother s and drug use, the trial court s findings, which after 2011. We find are age, not focus on her Respondent-mother s arguments unavailing. It is well-established that, under section 7B-1111(a)(2), willfulness does not require a showing of fault by the parent. In re Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398 (citation omitted). Further, [a] finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children. In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995) (citation omitted). Although Zabia was originally removed from the home, in part, due to Respondent-mother s age, domestic violence with the father, and drug use, other factors which led to the removal included: health (1) Respondent-mother s failure to address her mental issues; (2) her unstable housing and employment situations; and (3) her conflict with the grandmother, who was -13significantly involved in caring for Zabia. In an order entered on 14 June 2007, the court listed the conditions which led to Zabia s removal juvenile as instability. and adjudication mental illness, of Zabia past as a substance dependent use, [and] In order to address these issues, the trial court ordered Respondent-mother to be substance-free, have a substance abuse evaluation and follow any resulting recommendations, have a mental health evaluation and follow any recommendations, and maintain[] stability and develop a plan of care for Zabia. a review order entered in September 2007, the trial In court ordered a trial placement of Zabia with Respondent-mother under the supervision of Respondent-mother needed mental random a to substance therapeutic complete health a services, abuse foster parenting pursue screens. parent her Following and ordered program, receive GED, the and undergo October 2011 adjudication of Zabia as a neglected juvenile, Respondent-mother was ordered to maintain stable housing and employment, re-engage in mental program, health submit recommendations Respondent-mother treatment, to for was attend substance abuse treatment. ordered and In to complete evaluation, May re-engage and in a parenting and August mental follow 2012, health treatment, complete a parenting program, maintain stable housing -14and employment, sign a release to permit DSS to monitor that treatment, and stay in contact with DSS. The undisputed findings of fact show that Respondent-mother failed to comply with her mental health treatment and address her mental health needs. She refused to sign a release for DSS, stopped attending therapy in early September 2012, claimed that she did not need therapy, was discharged from her mental health provider for failing to attend sessions and maintain contact, was inconsistent in attendance prior to her discharge, claimed to have never prescribed taken any despite in medication medication connection with having mental been health treatment, and failed to incorporate a parenting component into her mental health treatment. Additionally, consistent contact Respondent-mother with DSS, and she failed to failed maintain to facilitate communication between DSS and her mental health provider, which prevented DSS from being able ability to care for Zabia. that Respondent-mother s to assess her stability and These findings of fact demonstrate attempts to make progress toward regaining custody of Zabia fell short of reasonable efforts. Accordingly, we hold that the trial court did not err in -15concluding that termination of Respondent-mother s parental rights was justified pursuant to section 7B-1111(a)(2). DSS conclude argues that that grounds the trial also court existed to erred in terminate failing to Respondent- mother s rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(3). However, if this Court determines that the findings of fact support one ground for termination, we need not review the other grounds. S.E.2d 421, In re Humphrey, 156 N.C. App. 533, 540, 577 426-27 Respondent-mother s (2003). Having affirmed parental rights based on termination of section 7B- 1111(a)(2), we do not address DSS s arguments as to the other grounds. AFFIRMED. Judges BRYANT and DILLON concur. Report per Rule 30(e).

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