Opinion
No. 05-458.
Filed March 7, 2006.
Halifax County Nos. 03 J 10, 11.
Appeal by respondents from judgments entered 15 July 2004 by Judge H. Paul McCoy, Jr., in Halifax County District Court. Heard in the Court of Appeals 7 December 2005.
Jeffery L. Jenkins for Halifax County Department of Social Services petitioner appellee. Michael J. Reece for respondent-mother appellant. Richard E. Jester for respondent-father appellant.
The present appeal arises from district court orders terminating the parental rights of respondent-mother as to the minor children S.L.G. and T.R.G. and terminating the parental rights of respondent-father as to the minor child T.R.G. Respondents appeal, and we affirm.
Facts
S.L.G. is the biological child of respondent-mother. Respondent-father's paternity of S.L.G. has not been conclusively established. T.R.G. is the biological child of both respondents.
S.L.G. was born in March of 2001. At this time, respondent-mother was receiving case management services from the Halifax County Department of Social Services (DSS), which included referrals for respondent-mother to receive inpatient and outpatient substance abuse treatment. However, respondent-mother continued to abuse cocaine and marijuana. T.R.G. was born seven weeks premature in January of 2003. Both T.R.G. and respondent-mother tested positive for cocaine at the time of T.R.G.'s birth.
Respondents' relationship has been violent at times, and in 2003, they were living apart. At some point, respondent-mother and S.L.G. lived with the child's maternal grandparents, who were not able to care for the child because of their age and medical conditions, and respondent-father lived in a house with no electricity. In early 2003, each respondent was on criminal probation. Both juveniles were placed in the non-secure custody of DSS in February of 2003 based on DSS's allegations that the children were neglected and dependent.
During a 10 February 2003 child planning conference, respondent-mother agreed to enter a residential substance abuse treatment program, and respondent-father agreed to undergo an assessment to determine the need for substance abuse treatment. Respondent-mother began an impatient substance abuse treatment program and, thereafter, an intensive outpatient program. The terms of her criminal probation required drug and alcohol testing. Drug screens conducted pursuant to the terms of respondent-father's criminal probation revealed the presence of cocaine in his system; however, respondent-father consistently denied using illegal drugs. Following a hearing held on 27 March 2003, a district court judge entered orders adjudging S.L.G. and T.R.G. to be neglected and dependent juveniles. The court also entered dispositional orders which required the children to remain in the custody of DSS and in the foster care which DSS had arranged for them, but permitted supervised visits between the children and respondents and set a goal of reunification between the children and respondents. Both respondents were directed to complete substance abuse treatment, submit to random drug testing, attend parenting and domestic violence classes, secure and maintain stable housing, and cooperate with child support establishment and enforcement orders. The disposition orders also provided for the suspension of visitation privileges for either respondent who tested positive for drugs or alcohol.
During the ensuing ninety days, both respondents completed parenting classes and made progress in their respective housing situations. Respondent-father completed an outpatient substance abuse treatment program; however, respondent-mother failed to complete her outpatient program. Both respondents tested positive for cocaine in May of 2003, and their visitation with the juveniles was suspended.
After a 26 June 2003 review hearing, the court determined that the plan for the juveniles would remain reunification with respondents, but the court ordered that no visitation take place between the children and respondents until each respondent tested negative for illegal drugs in two consecutive drug tests. The court also directed respondents to continue with substance abuse treatment, to attend Alcoholics Anonymous ("AA") and Narcotics Anonymous ("NA") meetings three times per week, to submit proof of AA and NA attendance, and to continue to submit to random drug screens.
The evidence at a 24 November 2003 review hearing tended to show that respondent-mother tested positive for cocaine in September of 2003 and that respondent-father had not complied with the order to submit to drug tests, even though a DSS social worker made repeated requests that he do so. Accordingly, neither parent visited with the children. Further, neither parent had submitted proof of AA or NA attendance. Following the 24 November 2003 hearing, the court ordered that the juveniles remain in the custody of DSS, suspended visitation pending further review, and set a date for a permanency planning hearing to determine a new permanent plan for the juveniles.
The evidence at an 8 January 2004 permanency planning hearing tended to show that respondent-mother had re-entered a drug treatment program, but left without completing it. Respondent-mother provided evidence that she had been attending AA and NA since December of 2003. Respondent-father testified that he had been attending AA and NA meetings during December, but he did not provide any documentation in support of his testimony. As of the 8 January 2004 hearing, the children had been in foster care for eleven months and had not visited with respondents for eight months. Following this hearing, the court directed DSS to determine whether the children could be placed with respondent-father's mother, but also permitted DSS the discretion to file a motion for termination of parental rights.
DSS contacted respondent-father's mother and determined that she was unwilling and unable to provide a permanent home for the children. Therefore, on 11 February 2004, DSS filed motions to terminate the respondents' parental rights as to S.L.G. and T.R.G. At an 8 April 2004 permanency planning hearing, the children's maternal aunt, Barbara Dominguez appeared and testified that she was willing to provide a home for the children. The court determined that Dominguez had medical problems which prevented her from caring for the juveniles. The court changed the plan for the juveniles to adoption.
Following a hearing on 10 June 2004, the trial court found that the following grounds existed to terminate respondents' parental rights: (1) the children were neglected, and there was a reasonable probability that the neglect would continue; (2) the children had been left in foster care for more than twelve months, and the respondents had failed to make reasonable progress towards correcting the conditions which led to the children's removal; and (3) the children had been in the custody of DSS for at least one year without respondents paying a reasonable portion of the cost of child care despite an ability to do so. The court further determined that a termination of parental rights would serve the best interests of each child. Accordingly, the court terminated the parental rights of respondent-mother as to both S.L.G. and T.R.G. and terminated the parental rights of respondent-father as to T.R.G.; the motion to terminate respondent-father's parental rights as to S.L.G. was dismissed because there had been no determination that he was the father of S.L.G.
Respondents now appeal.
Discussion Respondent-mother's Appeal I.
On appeal, respondent-mother first contends that the trial court erred by determining that grounds existed to terminate her parental rights as to both children. This contention lacks merit.
This Court reviews an order terminating parental rights for whether the findings of fact are supported by clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental rights should be terminated for one of the grounds set forth in the General Statutes. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). Where a trial court concludes that parental rights should be terminated pursuant to several of the statutory grounds, the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by findings of fact which are appropriately grounded in the record. In re Swisher, 74 N.C. App. 239, 240-41, 328 S.E.2d 33, 34-35 (1985).
Pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(2) (2005), a parent's rights to a child may be terminated if [t]he 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.
"A finding of willfulness does not require a showing of fault by the parent." Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 398. "Willfulness 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, 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." In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995).
In the instant case, the trial court's termination orders indicate that respondent-mother's substance abuse problem played a significant role in the removal of S.L.G. and T.R.G. from her custody, and the orders are replete with allusions to respondent-mother's failure to address this problem during the children's sixteen-month stay in foster care. On these facts, we discern no error in the trial court's conclusion that respondent-mother left her children in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress had been made to correct the conditions which led to the removal of the children.
Our holding with respect to this ground for termination makes it unnecessary for us to consider respondent-mother's arguments concerning the other grounds upon which her parental rights were terminated. See Swisher, 74 N.C. App. at 240-41, 328 S.E.2d at 34-35.
II.
Respondent-mother also contends that the trial court erred by determining that it was in the best interests of the children that her parental rights be terminated. This contention also lacks merit.
If a trial court determines that grounds to terminate parental rights exist, "the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated." N.C. Gen. Stat. §§ 7B-1110(a) (2003), amended by 2005 N.C. Session Laws ch. 398, §§ 7. "The trial court's decision to terminate parental rights, if based upon a finding of one or more of the statutory grounds supported by evidence in the record, is reviewed on an abuse of discretion standard." McMillon, 143 N.C. App. at 408, 546 S.E.2d at 174.
Given the facts and circumstances of the instant case, we discern no abuse of discretion in the trial court's determination that the best interest of S.L.G. and T.R.G. would be served by terminating respondent-mother's parental rights.
III.
The foregoing analysis makes it unnecessary to address respondent-mother's remaining arguments. The trial court's termination orders are affirmed with respect to respondent-mother's appeal.
Respondent-father's Appeal I.
On appeal, respondent-father first argues that the trial court erred by considering prior orders entered in the instant case. We disagree.
Respondent-father's argument is subdivided into three contentions concerning the previously entered orders. His first qualm with the trial court's consideration of these orders is that they "were entered at different times, in different hearings, some with different standards of proof." This Court has held that determinations made by a court in prior orders, such as findings of neglect, are not determinative of the issues before the court at a subsequent termination hearing. See In re Byrd, 72 N.C. App. 277, 280, 324 S.E.2d 273, 276 (1985). However, such prior determinations may be considered by the court at the termination hearing as evidence of whether there are grounds to terminate parental rights. Id. Regardless of the burden of proof required at any other stage of the proceedings, adjudicatory findings made in an order terminating parental rights must "be based on clear, cogent, and convincing evidence." N.C. Gen. Stat. §§ 7B-1109(f) (2005).
The order at issue in the instant case reflects that the trial court appropriately considered its prior orders as well as the evidence presented at the termination hearing to determine whether respondent-father's parental rights as to T.R.G. should be terminated. Further, the order clearly reflects that the trial court correctly applied the "clear, cogent and convincing evidence" standard in making its adjudicatory findings.
Respondent-father also challenges consideration of the previous orders based on his assertion that "the reports referenced in the prior orders contain considerable hearsay. . . . One social worker testified . . . to confirm the reports[, such that h]earsay was stacked upon hearsay." The record is bereft of any indication that respondent-father raised hearsay concerns at the termination hearing; therefore, this particular argument has been waived. See N.C.R. App. P. 10(b)(1) (2006) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make. . . . It is also necessary for the complaining party to obtain a ruling. . . .").
Finally, respondent-father insists that consideration of the prior orders constituted a violation of his federal constitutional right of confrontation as enunciated in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004). However, this Court has held that Crawford is inapplicable to proceedings to terminate parental rights because such proceedings are civil, rather than criminal, in nature. In re D.R., ___ N.C. App. ___, ___, 616 S.E.2d 300, 303 (2005). Accordingly, we reject respondent-father's argument that the trial court improperly considered its previously entered orders. The corresponding assignment of error is overruled.
II.
Respondent-father next contends that the order terminating his parental rights as to T.R.G. must be reversed because the trial court failed to make independent findings of fact. This contention lacks merit.
In cases involving the possible termination of parental rights, a trial court is under a duty to "not simply `recite allegations[;]'" it must instead "[go] through `"processes of logical reasoning from the evidentiary facts'" [and] find the ultimate facts essential to support the conclusions of law." In re Harton, 156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations omitted). A trial court's findings will be considered sufficient in this regard if they permit an appellate court "`to determine that the judgment is adequately supported by competent evidence.'" In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002) (citation omitted).
Respondent-father notes that certain findings in the termination order are practically identical to certain allegations in DSS's motion to terminate his parental rights as to T.R.G. and that the court's findings set forth some of the procedural history of the case. These observations are immaterial to a determination as to whether the trial court made adequate factual determinations. The court was neither precluded from finding that the allegations in DSS's motion were correct, nor forbidden to make findings substantially similar to those allegations; rather, the court was precluded from terminating respondent-father's parental rights if it did no more than indicate that DSS had alleged certain facts. See, e.g., Harton, 156 N.C. App. at 660, 577 S.E.2d at 337; Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602. Likewise, the court was not precluded from setting forth the procedural history of the case so long as it made findings as to the ultimate facts arising in the case pending before it.
Our review indicates that the trial court made findings which are sufficient to permit this Court to determine whether the challenged termination order is supported by evidence in the record. The corresponding assignment of error is overruled.
III.
In his final argument on appeal, respondent-father contends that the trial court erred by determining that grounds existed to terminate his parental rights as to T.R.G., and erred by determining that a termination of his parental rights was in T.R.G.'s best interest. This contention also lacks merit.
We reiterate that the trial court's termination order must be affirmed if its findings as to any one of the statutory grounds for termination is supported by clear, cogent, and convincing evidence and if those findings support a conclusion that parental rights should be terminated. Ante, slip op. at 6-7. Likewise, we again observe that the trial court's decision to terminate parental rights, if based upon a finding of one or more of the statutory grounds supported by evidence in the record, is reviewed on an abuse of discretion standard. Ante, slip op. at 8.
In the instant case, the trial court concluded that, pursuant to section 7B-1111(a)(2), a ground for termination of parental rights existed because respondent-father had willfully left T.R.G. in placement outside of the home for more than twelve months without making reasonable progress towards correcting the circumstances which led to the removal of the juvenile. The court's termination order indicates that, like respondent-mother, respondent-father had a substance abuse problem which contributed to the removal of T.R.G. and that respondent-father failed to sufficiently address this problem during the child's sixteen-month stay in foster care. On these facts, we discern no error in the trial court's conclusion that respondent-father had left T.R.G. in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress had been made to correct the conditions which led to the removal of the child, and we discern no abuse of discretion in the trial court's decision to terminate respondent-father's parental rights as to T.R.G.
The corresponding assignments of error are overruled.
IV.
The foregoing analysis makes it unnecessary to address respondent-father's remaining arguments on appeal. The trial court's order terminating respondent-father's parental rights as to T.R.G. is affirmed.
Conclusion
The trial court's order terminating respondent-mother's parental rights as to S.L.G. and T.R.G. is affirmed, and the order terminating respondent-father's parental rights as to T.R.G. is affirmed.
Affirmed.
Judges HUNTER and GEER concur.
Report per Rule 30(e).