Opinion
NO. COA12-765
12-18-2012
IN THE MATTER OF: D.N.W.
Warrick and Bradshaw, P.A., by Frank L. Bradshaw, for Sampson County Department of Social Services. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred for respondent-appellant father. Parker Poe Adams & Bernstein LLP, by Matthew C. Jordan, for guardian ad litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Sampson County
No. 10 JT 16
On writ of certiorari to review order entered 1 October 2010 by Judge Wayne Kimble and judgment entered 22 February 2012 by Judge Leonard W. Thagard, both in Sampson County District Court. Heard in the Court of Appeals 3 December 2012.
Warrick and Bradshaw, P.A., by Frank L. Bradshaw, for Sampson County Department of Social Services.
Edward Eldred, Attorney at Law, PLLC, by Edward Eldred for respondent-appellant father.
Parker Poe Adams & Bernstein LLP, by Matthew C. Jordan, for guardian ad litem.
ERVIN, Judge.
Respondent-Father Richard S. appeals from the trial courts' order terminating his parental rights in D.N.W. and changing Danielle's permanent plan from reunification to adoption. On appeal, Respondent-Father argues that several of the trial court's findings of fact lack adequate evidentiary support, that the trial court's order is inconsistent with certain statements made by the trial court at the conclusion of the termination hearing, that the trial court's findings of fact do not support the conclusion that Respondent-Father's parental rights were subject to termination pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(2) and (a)(3), and that the trial court erred by conducting a permanency planning hearing in the absence of Respondent-Father's attorney. After careful consideration of Respondent-Father's challenges to the trial courts' orders in light of the record and the applicable law, we conclude that the trial courts' orders should be affirmed.
D.N.W. will be referred to throughout the remainder of this opinion as "Danielle," a pseudonym used for ease of reading and to protect the juvenile's privacy.
The trial court also terminated the parental rights of Respondent-Mother Priscilla W. Respondent-Mother did not note an appeal from the trial court's order.
I. Factual Background
On 18 February 2010, the Sampson County Department of Social Services filed a petition alleging that Danielle, who was two days old at the time, was a neglected juvenile. According to the allegations set out in the petition, Danielle tested positive for cocaine at birth, her mother admitted that she had used cocaine while pregnant with Danielle, and two older children had also been removed from Danielle's mother's custody as the result of drug abuse. On the same date, DSS took Danielle into nonsecure custody. The identity of Danielle's biological father was unknown at the time of her birth.
After a hearing held on 18 March 2010, Danielle was adjudicated to be a neglected juvenile. Although Danielle's mother had named Respondent-Father as a potential father by that time, his paternity had still not been established. By means of a separate disposition order, Danielle was left in DSS custody.
On 9 July 2010, DNA testing confirmed that Respondent-Father was Danielle's biological father. A permanency planning and review hearing was held on 26 August 2010. By means of an order entered on 1 October 2010 as a result of that hearing, DSS was relieved of responsibility for making further efforts to reunite Danielle with her parents and the permanent plan for Danielle was changed from reunification to adoption. Respondent-Father did not attend the 26 August 2010 permanency planning hearing despite having been served with notice of the hearing on 5 August 2010.
On 20 May 2011, DSS filed a motion to terminate both parents' parental rights in Danielle. In its petition, DSS alleged that the parents' parental rights in Danielle were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect), N.C. Gen. Stat. § 7B-1111(a)(2) (willfully leaving the juvenile in foster care for more than twelve months without showing that reasonable progress had been made in correcting the conditions that led to the juvenile's removal from the home), and N.C. Gen. Stat. § 7B-1111(a)(3) (willfully failing to pay a reasonable portion of the cost of the juvenile's care).
A termination hearing was held before the trial court on 22 December 2011. At the conclusion of the hearing, the trial court determined that Respondent-Father's parental rights were subject to termination pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(2) and (a)(3). In an amended judgment entered on 22 February 2012, the trial court terminated Respondent-Father's parental rights in Danielle after determining that his parental rights were subject to termination and concluding that termination would be in Danielle's best interest. On 10 April 2012, this Court allowed Respondent-Father's petition for the issuance of a writ of certiorari so as to allow review of the trial court's termination order.
II. Legal Analysis
A. Grounds for Termination
1. Standard of Review
In the first, third, and fourth arguments set out in his brief, Respondent-Father challenges the trial court's determination that his parental rights in Danielle were subject to termination. According to N.C. Gen. Stat. § 7B-1111(a), a trial court may terminate parental rights upon finding the existence of at least one of the ten grounds enumerated in that statutory subsection. "So long as the findings of fact support a conclusion [that one of the enumerated grounds exists,] . . . the order terminating parental rights must be affirmed." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (internal citation omitted). As a result, in the event that we determine that the trial court's findings of fact support one ground for termination, we need not address Respondent-Father's challenges to the trial court's determinations with respect to other grounds for termination. Id. 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 a conclusion that parental termination should occur[.]" In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395-96 (1996) (citation omitted).
2. Evidentiary Support for the Trial Court's Findings
According to N.C. Gen. Stat. § 7B-1111(a)(2), a parent's parental rights are subject to termination in the event that (1) the parent willfully left the juvenile in foster care for over twelve months and (2) as of the time of the hearing, 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). In determining that Respondent-Father's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the trial court made the following findings of fact:
21. That the Respondent Father was asked by [DSS] to enter into an out of home service agreement on July 20, 2010.Although Respondent-Father appears to concede that Danielle was in DSS custody for the requisite period of time, he challenges Finding of Fact Nos. 21, 25, 26, and 29 as lacking in evidentiary support. As a result of the fact that Respondent-Father has not challenged the remaining findings of fact, they are presumed to have adequate record support and are binding for purposes of appellate review. See In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). As a result, we will, as an initial matter, focus on the factual findings that Respondent-Father has challenged as lacking evidentiary support.
22. That the Respondent Father did express his desire that his relatives be considered as placements for the Juvenile but failed to provide names to [DSS].
23. That [DSS] scheduled a home assessment of the home of the Respondent Father but the Respondent Father cancelled the home assessment.
24. That the Respondent Father has only seen the Juvenile on one occasion.
25. That prior to being served with an action to establish paternity by the Sampson County Child Support Enforcement Agency, the Respondent Father made no efforts to be a father to the Juvenile nor any efforts to legitimate the Juvenile or otherwise acknowledge that he was the father of the Juvenile.
26. That the Juvenile was born cocaine positive and the Respondent Mother
previously reported she was still "seeing" the Respondent Father when the Juvenile was born.
27. That the Respondent Father knew it was possible that he was the father of the Juvenile.
. . . .
29. That neither the Respondent Mother nor Respondent Father were present at the August 26, 2010 hearing despite having been provided with notice of said hearing.
30. That the Respondent Father is currently under an order of the District Court of Sampson County to provide ongoing child support for the Juvenile but has not paid support as ordered and has had to be repeatedly held in contempt of court with threat of incarceration for him to provide funds for the support of the Juvenile.
. . . .
34. That the Respondent Father is unemployed.
35. That the Respondent Father does not have his own home.
In his brief, Respondent-Father mistakenly refers to finding of fact number 25 as finding number 31.
In Finding of Fact No. 21, the trial court found "[t]hat the Respondent Father was asked by the Sampson County Department of Social Services to enter into an out of home service agreement on July 20, 2010." At the termination hearing, the social worker testified as follows:
Q. Did you ever enter into out of home service agreement with the father?Subsequently, the social worker testified that:
A. He did not.
Q. Okay. Did you ask him?
A. Yes. He was -- once we established paternity with Mr. Smith, he came to a permanency planning action team meeting on July 20th along with his mother[.] . . .
Q. . . . [D]id you enter into an out of home service agreement or attempt to enter into an out of home service agreement with the father?In his brief, Respondent-Father suggests that the two answers recited above contradict each other, so that the social worker's testimony, taken as a whole, does not provide adequate evidentiary support for Finding of Fact No. 21. We do not, however, read the social worker's answers as inconsistent with each other. In response to the first set of questions, the social worker plainly and unequivocally testified that DSS unsuccessfully requested Respondent-Father to enter into a case plan. The question that led to the second portion of the social worker's testimony quoted above is compound in nature, rendering it unclear which part of the question the social worker responded in the negative. Moreover, any discrepancies in the social worker's testimony would have created an issue of fact which the trial court would have had the responsibility for resolving. In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985). As a result, we conclude that Finding of Fact No. 21 has adequate record support.
A. No, not at that time.
Secondly, Respondent-Father challenges the sufficiency of the record support for Finding of Fact No. 26, in which the trial court stated that the mother was still "seeing" Respondent-Father at the time that Danielle was born. At the termination hearing, the social worker testified that:
Q. . . . At this time you have no knowledge, there's no testimony that the biological father and the biological mother were even together at that time, correct?According to Respondent-Father, the social worker's testimony does not suffice to support Finding of Fact No. 26 given that Danielle's mother acknowledged having had relationships with several different men. We believe, however, that the social worker's testimony adequately supports the challenged finding regardless of the number of men with whom the mother had relationships. Moreover, the social worker also testified that Respondent-Father was aware of the mother's pregnancy and that he knew that there was a possibility that he was Danielle's father. As a result, we conclude that Finding of Fact No. 26 has adequate evidentiary support.
A. At the time of the birth? She stated that she would still have conversation with him and be with him.
Respondent-Father advances a similar challenge to Finding of Fact No. 25, which states "[t]hat prior to being served with an action to establish paternity by the Sampson County Child Support Enforcement Agency, the Respondent Father made no efforts to be a father to the Juvenile nor any efforts to legitimate the Juvenile or otherwise acknowledge that he was the father of the Juvenile." Respondent-Father argues that Finding of Fact No. 25 misleadingly suggests that he knew that he was Danielle's father prior to receiving the results of the paternity test. We do not interpret Finding of Fact No. 25, which merely suggests that Respondent-Father knew there was a possibility that he was Danielle's father, in the same manner that Respondent-Father does. Respondent-Father does not appear to dispute the fact that he knew that there was a possibility that he was Danielle's father prior to the paternity testing or that he took no affirmative action to legitimate or otherwise care for Danielle. As a result, we conclude that Finding of Fact No. 25 has adequate record support.
Finally, Respondent-Father challenges the trial court's finding that he failed to attend the 26 August 2010 hearing despite having been provided with notice that it would be held. According to Respondent-Father, the record does not demonstrate that he had notice of the hearing. At the termination hearing, however, the social worker testified that Respondent-Father was served with notice of the permanency planning hearing. More importantly, the certificate of service attached to the notice of hearing indicates that it was served on Respondent-Father. Although Respondent-Father argues that this evidence is insufficient because it merely establishes that DSS mailed a copy of the notice to Respondent-Father's address, the record contains no support for his contention that he did not receive the notice. Moreover, "[t]he certificate of service raises a rebuttable presumption of valid service." Sellers v. Morton, 191 N.C. App. 75, 80, 661 S.E.2d 915, 920 (2008) (citing Hocke v. Hanyane, 118 N.C. App. 630, 633, 456 S.E.2d 858, 860 (1995)). Thus, Finding of Fact No. 29 does, in fact, have ample record support. As a result, none of Respondent-Father's challenges to the trial court's findings of fact have any merit.
Respondent-Father correctly notes that the court did not find Danielle to be a dependent juvenile in the 10 March 2010 adjudication order. However, given that the court did conclude that Danielle was neglected and given that this determination is sufficient to support the court's decision to exercise jurisdiction over Danielle, this deficiency in the trial court's findings provides no basis for an award of relief on appeal.
3. Adequacy of Findings to Show Grounds for Termination
In addition to arguing that certain of the trial court's factual findings lack adequate evidentiary support, Respondent-Father also contends that the trial court erred by concluding that his actions were sufficiently willful to support termination of his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). According to Respondent-Father, Danielle was originally taken from her mother's custody because the mother was addicted to cocaine and because paternity had not been established. Respondent-Father argues that, once paternity had been established, he took reasonable steps to correct the conditions that were subject to his control, such as agreeing to take a paternity test, suggesting relative placements, and cooperating with DSS. As a result, Respondent-Father essentially argues that his parental rights in Danielle were not subject to termination pursuant to N.C. Gen. Stat. § 7B- 1111(a)(2) given that the conditions which led to Danielle's removal from her mother's custody were not within his control and given that he made reasonable progress once his paternity was established. We do not find Respondent-Father's argument persuasive.
A finding of the willfulness necessary to support termination of a parent's parental rights based upon the ground for termination set out in N.C. Gen. Stat. § 7B-1111(a)(2) does not require proof of parental fault. Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398 (citation omitted). On the contrary, "[w]illfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort." In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175 (citing In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995)), disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). "A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children." Nolen, 117 N.C. App. at 699, 453 S.E.2d at 224.
Respondent-Father is correct in asserting that Danielle was originally placed in DSS custody due, at least in part, to the mother's drug abuse. However, Danielle was also placed in DSS custody because there was no one else available to care for her. While there is no evidence that Respondent-Father had any involvement in the mother's drug use, he did little to demonstrate that he had the ability to provide a suitable home for Danielle. For example, Respondent-Father attended only one meeting with DSS, cancelled a home assessment without ever rescheduling it, failed to enter into a case plan with DSS, failed to provide DSS with the names of relatives who might serve as potential placement options, failed to attend the permanency planning hearing despite having been provided with adequate notice, and was held in contempt for failing to pay child support. In addition, although Respondent-Father admitted that he was aware that he might be Danielle's father, he took no action to legitimate Danielle or to establish paternity before testing confirmed his identity as Danielle's father. As a result, the trial court did not err by concluding that Respondent-Father's parental rights in Danielle were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
B. Reference to Danielle as "Neglected" Juvenile
In his second challenge to the trial court's termination order, Respondent-Father contends that the trial court's order "implicitly states that [his] parental rights can be terminated for neglect, in direct opposition to the trial court's rendered ruling at the hearing." This contention rests on the trial court's conclusion that Danielle "is a neglected juvenile" coupled with the fact that the trial court announced in open court that Respondent-Father's parental rights, unlike the mother's, were not subject to termination on the grounds of neglect. Although the extent to which the mother's parental rights in Danielle were subject to termination was also addressed in the trial court's termination order, the trial court did not specify that neglect was a basis for termination solely with respect to Danielle's mother. In light of this ambiguity, Respondent-Father argues that the amended judgment should be remanded for correction of what he claims to be a clerical error.
While we acknowledge that the ambiguity in the trial court's termination order noted by Respondent-Father exists, we see no need for further proceedings on remand. As a result of the fact that we have already concluded that the trial court properly determined that Respondent-Father's parental rights were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), there is no need for us to undertake any substantive review of the extent, if any, to which the trial court could have properly concluded that Respondent-Father's parental rights also were subject to termination for neglect. See Humphrey, 156 N.C. App. at 540, 577 S.E.2d at 426. Moreover, the record does not clearly state that the trial court terminated Respondent-Father's parental rights in Danielle based upon neglect, the ground for termination specified in N.C. Gen. Stat. § 7B-1111(a)(1); instead, the order is susceptible to an interpretation that is consistent with Respondent-Father's view of what the trial court actually decided. As a result, we do not believe that there is any clerical error that needs to be corrected on remand.
C. Right to Counsel
Finally, Respondent-Father argues that Judge Kimble erred by conducting the 26 August 2010 permanency planning hearing, at which Danielle's permanent plan was changed from reunification to adoption, in the absence of Respondent-Father's counsel. As a result of the fact that Respondent-Father failed to preserve his right to appeal the 1 October 2010 permanency planning order in the manner specified in N.C. Gen. Stat. § 7B-507(c), Respondent-Father has sought the issuance of a writ of certiorari in order to obtain review of his claim on the merits. In view of the fact that certiorari review is available "when the right to prosecute an appeal has been lost by failure to take timely action," N.C.R. App. P. 21(a)(1), and the fact that we have decided, in the exercise of our discretion, to grant the requested writ and Respondent-Father's related motion to consolidate our consideration of his challenge to the permanency planning and termination orders, we will address the merits of Respondent-Father's challenge to the 1 October 2010 order.
According to the record, provisional counsel was appointed to represent Danielle's unknown father on 23 February 2010. On 18 March 2010, after an adjudication hearing was held, provisional counsel for Danielle's unknown father was allowed to withdraw. Respondent-Father took a test to determine whether he was Danielle's father on 24 June 2010; DSS learned that the test results indicated that Respondent-Father was Danielle's biological father on 9 July 2010. Respondent-Father appeared at the DSS office on 13 July 2010 and indicated that he wanted Danielle to live with him. On 15 July 2010, Respondent-Father was adjudicated to be Danielle's biological father. At a team meeting held on 20 July 2010, DSS advised Respondent-Father that he was entitled to apply for court-appointed counsel. However, Respondent-Father did nothing to obtain the appointment of counsel at that time.
On 5 August 2010, DSS filed a review motion in which it requested that a combined 90-day review and permanency planning hearing be held. Notice of the hearing, which was scheduled for 9:30 a.m. on 26 August 2010, was mailed to Respondent-Father's last known address. On 26 August 2010, Judge Kimble conducted a review and permanency planning hearing and appointed provisional counsel for Respondent-Father. The order appointing counsel for Respondent-Father was filed at 4:27 p.m. on the date of the hearing. Neither Respondent nor the provisional counsel appointed by the trial court appeared at the 26 August 2010 hearing. On 1 October 2010, Judge Kimble entered an order changing the permanent plan for Danielle from reunification to adoption. The 1 October 2010 order was served on Respondent-Father, but not his provisional counsel. Respondent-Father's provisional counsel was allowed to withdraw on 24 January 2011. On 12 May 2011, counsel was appointed for Respondent-Father at a review hearing which had been noticed on 28 April 2011.
Our decision to grant the requested writ of certiorari and to review Respondent-Father's challenge to the permanency planning order on the merits resolves any problems that may otherwise stem from the deficiency in the manner in which the 1 October 2010 order was served on the parents.
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In challenging the permanency planning order, Respondent-Father argues that "the [] court's decision to conduct the permanency planning [hearing] in the absence of [Respondent-Father's] attorney" was "inherent[]ly] unfair[]." Instead of proceeding to conduct the permanency planning hearing after appointing counsel, Respondent-Father contends that Judge Kimble "should have continued the 26 August 2010 hearing to allow [Respondent-Father's] attorney time to prepare, and appear." According to Respondent-Father, "the procedural irregularity of conducting the crucial permanency planning hearing in the absence of counsel after recognizing [his] right to counsel requires corrective action." We are not persuaded by Respondent-Father's argument.
Respondent-Father's challenge to the permanency planning order hinges on the assumption that Judge Kimble appointed counsel for Respondent-Father and then conducted the permanency planning hearing without giving Respondent-Father's newly appointed counsel time to appear or prepare. The fundamental problem with this argument is that it lacks adequate record support. Put another way, the materials that have been presented for our examination on appeal do not indicate, as Respondent-Father assumes, that Judge Kimble appointed counsel for Respondent-Father and then conducted the permanency planning hearing. Instead, the record is equally susceptible to the interpretation that Judge Kimble conducted the permanency planning hearing and then appointed provisional counsel for Respondent-Father. Thus, the record simply does not show that Judge Kimble conducted the permanency planning hearing after appointing counsel to represent Respondent-Father.
Even more importantly, the record does not show that Respondent-Father asserted his right to counsel in a timely manner. As the record clearly indicates, Respondent-Father was advised that he had a right to appointed counsel more than a month prior to the 26 August 2010 hearing. However, he failed to request the appointment of counsel prior to or at that time. Having already rejected Respondent-Father's challenge to the adequacy of the notice that was provided to him concerning the 26 August 2010 hearing, we are unable to see any justification for his failure to request the appointment of counsel at or before the beginning of the 26 August 2010 hearing. Simply put, Respondent-Father has provided absolutely no justification for his failure to appear at the 26 August 2010 hearing, request the appointment of counsel, and ask for a continuance. When he did so after making an appearance at a 12 May 2011 review hearing, Respondent-Father received both appointed counsel and a continuance. In view of his failure to request the appointment of counsel at or before the 26 August 2010 hearing, Respondent-Father is not now entitled to complain about the fact that he was not represented at that hearing. In re R.R., 180 N.C. App. 628, 636, 638 S.E.2d 502, 507 (2006) (stating that the parent's "inaction prior to the hearing and his failure to appear at the hearing constitute a waiver of his right to counsel"). As a result, for both of these reasons, Respondent-Father is not entitled to relief from Judge Kimble's permanency planning order based on the fact that he was not represented by counsel at the 26 August 2010 hearing.
III. Conclusion
Thus, for the reasons set forth above, none of Respondent-Father's challenges to the permanency planning and termination orders have merit. As a result, those orders should be, and hereby are, affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge BEASLEY concur.
Report per Rule 30(e).