Opinion
No. COA12–1340.
2013-04-2
In the Matter of J.M.
Hal G. Harrison and R. Ben Harrison for petitioner-appellee Mitchell County Department of Social Services. Sydney Batch for respondent-appellant mother.
Appeal by respondents from order entered 20 August 2012 by Judge Alexander Lyerly in Mitchell County District Court. Heard in the Court of Appeals 18 March 2013. Hal G. Harrison and R. Ben Harrison for petitioner-appellee Mitchell County Department of Social Services. Sydney Batch for respondent-appellant mother.
Harrington, Gilleland, Winstead, Feindel & Lucas, L.L.P., by Anna S. Lucas, for respondent-appellant father.
Tawanda N. Foster for guardian ad litem.
BRYANT, Judge.
Where the trial court had clear, cogent, and convincing evidence to establish that respondents willfully left the juvenile in foster care or placement outside the home for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the juvenile, we affirm the trial court's termination of respondents' parental rights.
On 24 August 2010, accompanied by law enforcement, Cassie Barnett, a social worker with the Mitchell County Department of Social Services (DSS), visited the home of respondent-mother and respondent-father, parents of Jennifer , a juvenile. Barnett requested that respondents allow her to see all of the medications that respondents were taking.
A pseudonym has been used in place of the initials J.M. to protect the identity of the juvenile.
[Barnett observed] numerous bottles of various types of narcotics. Some of the bottles were properly marked, and others were not. She testified that some of the bottles had recently been filled, but numerous pills in those bottles were missing, and the pills were not being taken as prescribed. Some of the bottles were completely empty, and had only been refilled days before. Pill bottles were found throughout the home, in the bedroom and locked boxes. She testified that she observed various drug paraphernalia, including cut straws with powder residue, Tampon applicators with pow[d]er residue, numerous syringes containing unknown substances were found between the mattress and foundation of a bed. She stated that both respondents admitted to shooting up the prescription drugs and snorting the same through straws. She testified that both respondents admitted to selling these pills to other individuals. She testified that the respondent parents stated they would take their medications as they pleased.
The juvenile was removed from the home and respondents were arrested for numerous drug offenses.
On 8 November 2010, the Mitchell County Department of Social Services (“DSS”) filed a juvenile petition alleging that Jennifer was a neglected and dependent juvenile. In support of the claim of neglect, DSS noted that on 24 August 2010, respondents were charged with trafficking in opium or heroin, possession of drug paraphernalia, and possession with intent to manufacture, sell, and/or deliver a schedule II controlled substance. Respondent-mother tested positive for barbituates, butalbital, benzodiazepines, oxycodone, and oxymorphone. Respondent-father tested positive for oxycodone and oxymorphone. Jennifer, who was thirteen years of age, had access to the drugs found in the home and tested positive for cannabinoid, oxycodone, and oxymorphone. Thereafter, on 17 September 2010, respondent-father “was driving and was pulled over by law enforcement who found crushed pills in [a] tampon [applicator] ... father will be charged with Possess. [sic] of Drug Paraphernalia.”
In support of its dependency claim, DSS stated that respondents could not meet Jennifer's needs due to continued substance abuse in the home and respondents' refusal of treatment. Furthermore, respondent-father stated to a family member that “If he loses [Jennifer] for good he will kill himself and take another or two with him.” DSS obtained non-secure custody of the juvenile.
An adjudicatory hearing was held on 1 February 2011. The court found that “[t]he sheer volume of prescription drugs and paraphernalia found in the home of the respondent parents, and which were not kept in a safe, secure place, created an injurious environment for the child.” Accordingly, the trial court adjudicated Jennifer a neglected and dependent juvenile.
On 14 November 2011, the trial court held a permanency planning hearing. In its 30 November 2011 order, the court ordered that DSS implement a permanent plan of adoption.
On 15 February 2012, DSS filed a petition to terminate respondents' parental rights. On 20 August 2012, the trial court entered an order terminating respondents parental rights after concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (neglect) and (2) (failure to make reasonable progress while willfully leaving juvenile in foster care) (2011).
On 17 August 2012, respondent-mother's counsel filed notice of appeal on respondent-mother's behalf. However, respondent-mother failed to sign the notice of appeal. On 29 August 2012, respondent-father's counsel filed notice of appeal. Both respondents signed the 29 August 2012 notice of appeal, as well as respondent-father's counsel, but respondent-mother's counsel failed to sign this notice of appeal. Therefore, both of respondent-mother's notices of appeal failed to comply with N.C.R.App. P. Rule 3.1(a) (“If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal[ .]”). Respondent-mother, cognizant of this deficiency, has filed a petition for writ of certiorari with this Court. In our discretion, we allow the petition.
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On appeal, respondent-father raises the following issues: whether the trial court erred in concluding that respondent-father (I) willfully left Jennifer in foster care without correcting the conditions that led to her removal; and (II) neglected Jennifer.
On appeal, respondent-mother raises the following issues: whether the trial court erred in concluding that respondent-mother (III) willfully left Jennifer in foster care; (IV) neglected Jennifer; and (VI) that the trial court failed to make adequate findings of fact to support any of the grounds for termination.
Standard of Review
North Carolina General Statutes, section 7B–1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990). “The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., 171 N.C.App. 230, 238, 615 S.E.2d 26, 32 (2005) (citation omitted).
I and III
Respondents argue that the trial court erred in concluding that they failed to correct the conditions which led to Jennifer's removal when the court based its conclusion on findings inapplicable to the grounds upon which Jennifer was removed. In addition, respondent-mother argues that the evidence failed to establish that she “willfully” left Jennifer in foster care. We disagree.
The trial court concluded that grounds existed to terminate respondents' parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2). To terminate a parent's rights under N.C. Gen.Stat. § 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: (1) a child has been willfully left by the parent in foster care or placement outside the home for over twelve months; and (2) 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. 457, 464–465, 615 S.E.2d 391, 396 (2005).
The trial court concluded that grounds existed to terminate respondents' parental rights pursuant to N.C.G.S. § 7B–1111(a)(2). The trial court found that Jennifer was removed from respondents' home on 4 November 2010. “There was substantial evidence that while residing with respondents, the juvenile had access to Schedule II controlled substances in the home, and did, in fact, use these substances herself.” Following the removal of the juvenile, the initial plan was reunification; “[DSS] entered into a contract with the respondents, which included treatment for substance abuse, family counseling, transportation, and housing. The respondents never completed all of the plan services which would have resulted in reunification.” “[R]espondents continued to use and abuse controlled substances.”
Jennifer was placed in foster care and has been in placement outside the home since November 2010. The termination of parental rights proceeding began during the 9 July 2012 term of Juvenile Court for Mitchell County. The trial court found that following her removal, respondents entered into a case plan which contained “all of the requirements necessary for them to be reunified with the juvenile.”
These Case Plans required them to be subject to random drug screens and to seek substance abuse assessments, treatment and counseling. The Case Plans also required both respondents to ultimately participate in family counseling which was necessary for reunification with the juvenile.
The trial court's findings of fact, supported by evidence in the record, demonstrate that respondents failed to comply with their case plan. “[Respondent-mother] had a positive drug screening in April 2011. Thereafter, in July 2011, [respondent-father] was hospitalized for alcohol poisoning having a blood alcohol reading of 0.36.” Subsequently, respondent-father was seen intoxicated in Wal–Mart and seen purchasing alcohol from an ABC store. Respondent-father presented evidence that in the months following these incidents in July 2011, he completed all of his alcohol and substance abuse counseling requirements.
The trial court also found that respondents were attending a Suboxone Clinic in Tennessee. Respondent-father testified that he had not been referred to the clinic by a doctor but went on his own. Respondent-mother testified that the clinic was recommended to her by a friend. From the clinic, respondent-father received Suboxone, Paxil, and Clonipin. Respondent-mother received Suboxone, Clonipin, Paxil and Amitriptyline. Respondent-mother testified that she and respondent-father were spending $400.00 per week at the Suboxone Clinic to pay for medications and that they had never missed an appointment. Attendance at the clinic was not an element of respondents' case plan. The trial court found that respondents were “expending substantial amounts of money on a weekly basis to purchase numerous narcotics for their personal use. The Court finds that this behavior is not indicative of people who now claim to have successfully completed drug and alcohol rehabilitation.”
Accordingly, on these facts, we conclude the trial court properly found that respondents had failed to complete substance abuse treatment. See In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984) (it is the trial judge's duty to “weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.”).
Respondents also failed to comply with the requirement of their case plan that they participate in family counseling. Respondents argue that Jennifer was removed from their home due to respondents' substance abuse, that family counseling would not address substance abuse, and counseling was thus “not instrumental in correcting the conditions that led to [Jennifer's] removal.” We are not persuaded by respondents' argument. In addition to respondents' substance abuse, Jennifer also abused substances while in respondents' home due to improper supervision. Thus, it was reasonable for the trial court to determine that counseling was a necessary requirement to correct the conditions which led to the removal of the juvenile. The trial court's findings that respondents failed to complete counseling are uncontested on appeal. The trial court noted respondents' argument that family counseling was futile because Jennifer refused to participate; however, this did not obviate the requirement that respondents participate in counseling as dictated by their case plan.
The trial court did acknowledge that respondents expended efforts towards completing their case plan, noting that respondents had completed several hours of substance abuse treatment. Nevertheless, while respondents may have made some progress, “[e]xtremely limited progress is not reasonable progress.” In re Nolen, 117 N.C.App. 693, 700, 453 S.E.2d 220, 224–25 (1995) (citation omitted). Accordingly, based on the findings of fact that are supported by the evidence, we hold that the trial court did not err by concluding that grounds existed to terminate respondents' parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) (“The parent has willfully left the juvenile in foster care or placement outside the home for 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.”).
Respondent-mother additionally argues that the trial court erred by concluding that grounds existed to terminate their parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (“The parent has abused or neglected the juvenile.”). However, because we conclude that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(2) to support the trial court's order, we need not address the remaining grounds found by the trial court to support termination. In re Taylor, 97 N.C.App. at 64, 387 S.E.2d at 233–34. Accordingly, we affirm.
Affirmed. Judges CALABRIA and GEER concur.
Report per Rule 30(e).