In re Z.P-S. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 and Carrie
Virginia McMillan, for Guardian ad Litem.
STEPHENS, Judge.
Respondent-mother appeals from the trial court’s order
terminating her parental rights to Z.P.-S. (“Zabia”).1 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.
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On 7 February 2007, the Durham County Department of Social
Services (“DSS”) filed a juvenile petition alleging that six-
month-old Zabia was a neglected and dependent juvenile. At the
time, Respondent-mother was a minor. 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 Respondent-mother and the grandmother
interfered with Zabia’s care. DSS requested that the
grandmother be given custody of Zabia.
By order entered on 14 June 2007, the trial court
adjudicated Zabia dependent. The court found that 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).
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]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 juvenile. The petition alleged that the
grandmother suffered from depression, was not consistent in
attending group therapy, and was taking double doses of her
sleep medication. 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
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placing Zabia in DSS custody, based upon findings that the
grandmother was struggling with depression, had 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. The trial court ordered
Respondent-mother to cooperate with 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. See N.C. Gen.
Stat. § 7B-1111(a)(1), (2), (3) (2013). Following a hearing,
the trial court entered an order on 30 September 2013
terminating Respondent-mother’s parental rights based upon the
conclusion that she willfully left Zabia in foster care for more
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than 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). Here, the trial court terminated
Respondent-mother’s parental 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.
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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.
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 a conclusion that parental termination should
occur.” In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473
S.E.2d 393, 395 (1996) (citation omitted). Any findings of fact
not challenged on appeal are presumed supported by clear,
cogent, and convincing evidence and are binding. 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. We
disagree.
I. Challenged findings of fact
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Respondent-mother specifically challenges finding of fact
numbers 19(d), 32, 65, and 67 as lacking the necessary
evidentiary support. We address each challenged finding in
turn.
Finding of fact number 19 details Zabia’s 2007 initial
adjudication of dependency. 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 neglect and of risk of neglect to [Zabia],
considering [Respondent-]mother’s minority and 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 in that it mischaracterizes the 2007
adjudication order. 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
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of 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 in June 2012, but did not
participate in July 2012.” Respondent-mother contends that this
finding is not supported by the evidence because she
participated in a telephone call to her therapist on 25 July
2012. However, the case management records describe this phone
call as a “crisis contact” rather than a scheduled therapy
session. Those records further document that, at the conclusion
of the crisis call, the staff offered Respondent-mother a
therapy appointment which she declined, citing her work
schedule. Indeed, at the hearing, the trial court expressed
concerns that Respondent-mother’s therapists were “frequently
used for crisis management[] and not for actual therapeutic
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purposes.” 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 were not consistent with making
reasonable progress.” 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 taken her to the site of the visits.
Respondent-mother notes that visitation issues were not a
condition which led to Zabia’s removal in 2007, and we agree.
However, Respondent-mother’s “instability” was a factor in
Zabia’s removal, and Respondent-mother’s inconsistency in
attending visitation is pertinent to an evaluation of her
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stability 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 rights could be terminated
based on section 7B-1111(a)(2). Respondent-mother counters that
she made “great progress” as shown by the trial placement of
Zabia with Respondent-mother ordered in December 2007 and a
statement in that order that Respondent-mother “has been
compliant with the court order, and she continues to 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,
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615 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 error in the trial court’s conclusion,
Respondent-mother concedes that Zabia was removed from her
custody for the requisite amount of time. However, Respondent-
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mother 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 in 2007, such as Respondent-mother’s age,
domestic violence with the father, and drug use, are not
addressed by the trial court’s findings, which focus on her
actions after 2011. We find 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: (1) Respondent-mother’s failure to address her mental
health issues; (2) her unstable housing and employment
situations; and (3) her conflict with the grandmother, who was
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significantly involved in caring for Zabia. In an order entered
on 14 June 2007, the court listed the conditions which led to
Zabia’s removal and adjudication of Zabia as a dependent
juvenile as “mental illness, past substance use, [and]
instability.” 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. In
a review order entered in September 2007, the trial court
ordered a trial placement of Zabia with Respondent-mother under
the supervision of a therapeutic foster parent and ordered
Respondent-mother to complete a parenting program, receive
needed mental health services, pursue her GED, and undergo
random substance abuse screens. Following the October 2011
adjudication of Zabia as a neglected juvenile, Respondent-mother
was ordered to maintain stable housing and employment, re-engage
in mental health treatment, attend and complete a parenting
program, submit to substance abuse evaluation, and follow
recommendations for treatment. In May and August 2012,
Respondent-mother was ordered to re-engage in mental health
treatment, complete a parenting program, maintain stable housing
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and 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 taken any medication despite having been
prescribed medication in connection with mental health
treatment, and failed to incorporate a parenting component into
her mental health treatment.
Additionally, Respondent-mother failed to maintain
consistent contact with DSS, and she failed to facilitate
communication between DSS and her mental health provider, which
prevented DSS from being able to assess her stability and
ability to care for Zabia. These findings of fact demonstrate
that Respondent-mother’s 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
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concluding that termination of Respondent-mother’s parental
rights was justified pursuant to section 7B-1111(a)(2).
DSS argues that the trial court erred in failing to
conclude that grounds also existed to terminate 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. In re Humphrey, 156 N.C. App. 533, 540, 577
S.E.2d 421, 426-27 (2003). Having affirmed termination of
Respondent-mother’s parental rights based on 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).