In re J.C.P. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1253
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
IN THE MATTER OF:
J.C.P., J.T.P. & I.L.P. Guilford County
Nos. 08 JT 691-92, 11 J 25
Appeal by respondent-parents from order entered 17 July
2013 by Judge H. Thomas Jarrell in Guilford County District
Court. Heard in the Court of Appeals 19 May 2014.
Mercedes O. Chut for petitioner-appellee Guilford County
Department of Social Services.
Hunt Law Group, P.C., by James A. Hunt, for respondent-
appellant father.
Assistant Appellate Defender J. Lee Gilliam for respondent-
appellant mother.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for guardian ad litem.
BRYANT, Judge.
Respondent-mother appeals from an order terminating her
parental rights as to J.C.P. (“Joseph”), J.T.P. (“Jacob”), and
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I.L.P. (“Ivey”).1 Respondent-father appeals from the order
terminating his parental rights to Ivey. The father of Joseph
and Jacob is not a party to this appeal. For the reasons stated
below, we affirm the order of the trial court.
The Guilford County Department of Social Services (“DSS”)
instituted a juvenile case involving respondent-mother and
juveniles Joseph and Jacob on 14 October 2008, by filing a
petition alleging the children and their older siblings, S.D.
(“Sophia”), A.D. (“Avery”), and R.D. (“Ryan”), were abused,
neglected and dependent juveniles. DSS obtained non-secure
custody of the children two days later and placed the children
in foster care. On 24 February 2009, the trial court entered an
adjudication and disposition order concluding that Sophia,
Avery, and Ryan were neglected juveniles,2 and that Joseph and
Jacob were neglected and dependent juveniles. The court
continued custody of all the juveniles with DSS, and granted
respondent-mother weekly supervised visitation with Joseph and
Jacob.
1
Pursuant to Rule 3.1(b) of our Rules of Appellate Procedure, we
use pseudonyms to protect the identity of the juveniles.
2
Respondent-mother’s parental rights to Sophia, Avery, and Ryan
were terminated in proceedings not involving Joseph, Jacob or
Ivey. See In re S.M.D., No. COA12-373, 2012 WL 5857972 (Nov.
20, 2012).
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During the pendency of the juvenile case involving Joseph
and Jacob, respondent-mother met respondent-father and conceived
Ivey. DSS obtained non-secure custody of Ivey the day after her
birth in February 2011, and shortly thereafter DSS filed a
juvenile petition alleging Ivey was neglected and dependent. On
14 November 2011, the trial court entered an adjudication order
concluding Ivey was a neglected and dependent juvenile. The
court entered a disposition order for Ivey on 17 April 2012,
which granted respondent-parents supervised visitation with Ivey
and ordered that her case be heard with that of Joseph and
Jacob. The court set the permanent plan for Ivey to be
reunification with respondent-father, but relieved DSS from the
obligation to make reasonable efforts to reunify Ivey with
respondent-mother. In a separate order entered 17 April 2012,
the trial court relieved DSS from the obligation to make
reasonable efforts to reunify Joseph and Jacob with respondent-
mother and their father, and set adoption as the permanent plan
for Joseph and Jacob. By order entered 13 December 2012, the
trial court changed the permanent plan for Ivey to adoption with
a concurrent plan of reunification with respondent-father.
DSS subsequently filed a petition to terminate respondents’
parental rights to Ivey and a separate petition to terminate
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respondent-mother’s parental rights to Joseph and Jacob. By
order entered 17 July 2013, the trial court terminated
respondent-mother’s parental rights to Joseph, Jacob, and Ivey
and terminated respondent-father’s parental rights to Ivey. The
court concluded that grounds existed to terminate respondent-
mother’s parental rights to Joseph, Jacob, and Ivey pursuant to
North Carolina General Statutes, section 7B-1111(a)(1),(2),(3)
and (9), and that grounds existed to terminate respondent-
father’s parental rights to Ivey pursuant to General Statutes,
section 7B-1111(a)(1) and (2). Respondents appeal.
____________________________
On appeal, (I) respondent-mother argues the trial court
erred by concluding grounds existed to terminate her parental
rights. Respondent-father (II) also contends that the trial
court erred by concluding grounds existed to terminate his
parental rights to Ivey and (III) additionally contends the
court abused its discretion in concluding it is in Ivey’s best
interest to terminate his parental rights.
This Court reviews orders in termination of parental rights
cases for “whether the findings of fact are supported by clear,
cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law.” In re Clark, 72 N.C.
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App. 118, 124, 323 S.E.2d 754, 758 (1984) (citation omitted).
“If the trial court’s findings of fact are supported by ample,
competent evidence, they are binding on appeal, even though
there may be evidence to the contrary.” In re S.C.R., 198 N.C.
App. 525, 531, 679 S.E.2d 905, 909 (2009) (citation and
quotation marks omitted). However, “[t]he trial court’s
conclusions of law are fully reviewable de novo by the appellate
court.” In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59
(2008) (citation and quotation marks omitted).
I
Respondent-mother argues that the trial court erred in
concluding grounds existed to terminate her parental rights
because she failed to make progress in correcting those
conditions that led to the removal of the juveniles. We
disagree.
A court may terminate parental rights upon finding that
[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.
Provided, however, that no parental rights
shall be terminated for the sole reason that
the parents are unable to care for the
juvenile on account of their poverty.
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N.C. Gen. Stat. § 7B-1111(a)(2) (2013). “A parent's
‘willfulness’ in leaving a child in foster care may be
established by evidence that the parents possessed the ability
to make reasonable progress, but were unwilling to make an
effort.” In re Baker, 158 N.C. App. 491, 494, 581 S.E.2d 144,
146 (2003) (citations omitted). “Even if a parent has made some
efforts to regain custody, a trial court may still find that he
or she willfully left the child in foster care under section 7B–
1111(a)(2).” In re S.F., 198 N.C. App. 611, 615, 682 S.E.2d
712, 716 (2009) (citation omitted).
Here, the trial court found that respondent-mother
willfully left Joseph, Jacob, and Ivey in placement outside of
the home for more than twelve months without showing to the
satisfaction of the court that reasonable progress had been made
in correcting those conditions which led to the removal of the
juveniles. Although “[Respondent-mother] has completed several
components of her case plan[,] she has not been able to
demonstrate through her behavior that she is capable of making
decisions that would not expose her children to further abuse.”
In support of this conclusion, we consider the trial court’s
unchallenged findings of fact illustrating a pattern of behavior
which exposes respondent-mother’s children to potential abuse.
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The trial court found that Joseph and Jacob were placed in
the custody of DSS and pursuant to a consent order entered 8
December 2008, were adjudicated neglected and dependent. Ivey
was also placed in the custody of petitioner and subsequently
adjudicated neglected and dependent on 3 October 2011. In
reviewing the adjudication orders disclosing the basis for the
petitions for non-secure custody, the trial court noted that
three of respondent-mother’s older children – Ryan, Sophia, and
Avery (to whom respondent-mother’s parental rights were
terminated) were abused, dependent, and neglected juveniles.
The trial court noted that respondent-mother’s relationship
with the father of juveniles Ryan, Sophia, and Avery – Raymond
M. – was abusive. Following that relationship, respondent-
mother entered into a romantic relationship with B.P.
Interviews with Ryan, Sophia, and Avery presented allegations
that B.P. sexually molested both Sophia and Avery and that
respondent-mother had been informed of this abuse but instructed
her daughters not to tell anyone. DSS members observed that
respondent-mother “continued to minimize the abuse, stating that
she found it hard to believe” and “denied having any knowledge
of the abuse with the exception of once when [Sophia] told her,
but she didn’t think anything of it.”
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In December 2006, respondent-mother gave birth to twins,
Joseph and Jacob. B.P. was listed as the father though it was
later determined he was not the biological father. In fact,
respondent-mother had remained in contact with the biological
father but chose to conceal his identity.
On 7 November 2008, respondent-mother entered into a
service agreement with DSS wherein she was required to comply
with and make progress in the following categories: emotional /
mental health, life skills, and basic needs; parenting skills;
family relationships; and visitation. On 16 January 2010,
respondent-mother’s counselor reported that during counseling
sessions, “[respondent-mother] was prepared to listen to each
child’s traumatic experiences perpetrated by the abusive male
who had lived in the home and ‘watched’ the juveniles as
[respondent-mother] worked outside the home.” The trial court
found that it was essential to the welfare and safety of the
children that respondent-mother be open and honest about her
dating relationships as respondent-mother had a propensity for
choosing abusive men.
In August 2010, the minor child Sophia reported that
respondent-mother had a boyfriend. Respondent-mother denied
that she was in a relationship. But, at the time of the denial,
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respondent-mother had been in a sexual relationship with a co-
worker, respondent-father, for three months and knew she was
pregnant with his child. Respondent-mother’s social worker
learned of the pregnancy when respondent-mother applied for
medical assistance and the eligibility worker notified DSS.
Respondent-mother acknowledged that she did not know respondent-
father very well. The trial court found that respondent-mother
was aware that respondent-father had a four-year-old child for
whom he provides no support because the mother refuses to accept
money from him and he was briefly incarcerated due to an assault
upon a commanding officer in the Mexican Army. However, towards
the end of the pregnancy, respondent-father was spending the
night with respondent-mother at her home. Respondent-mother
gave birth to Ivey in February 2011. At the time of the
termination hearing, respondent-mother was living at least part-
time with respondent-father at his home. In July 2011,
respondent-mother suffered a miscarriage. That she had been
pregnant was not disclosed to petitioner until respondent-mother
testified at the termination hearing.
The trial court made findings of fact that respondent-
mother had two sexual or romantic relationships that she did not
voluntarily disclose to DSS. “Any man that [respondent-mother]
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is involved with would be required to cooperate with [DSS] and
work with [respondent-mother] on her reunification plan. Her
failure to disclose indicates that she will continue to expose
her children to unsafe situations.” “[Respondent-mother]
continues to exhibit poor judgment by being dishonest [to] the
Court and the [DSS].” “[Respondent-mother’s] continued pattern
of dishonesty is evidence that although she has successfully
completed many programs as part of her case plan and attended
therapy there have been no internal changes and therefore she
has not corrected the conditions that led to her children’s
removal.”
Respondent-mother does not challenge the trial court’s
findings of fact. See In re A.R.H.B., 186 N.C. App. 211, 214,
651 S.E.2d 247, 251 (2007) (“If unchallenged on appeal, findings
of fact are deemed supported by competent evidence and are
binding upon this Court.” (citation omitted)). Therefore, we
hold that the trial court’s order contains sufficient findings
of fact to support its conclusion that despite respondent-
mother’s completion of several components of her case plan with
DSS, “she has not been able to demonstrate through her behavior
that she is capable of making decisions that would not expose
her children to further abuse.” Accordingly, we affirm the
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trial court’s conclusion that grounds exist to terminate
respondent-mother’s parental rights to Joseph, Jacob, and Ivey
as respondent-mother has “willfully left the juvenile[s] 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[s].” See N.C.G.S. § 7B-1111(a)(2). We do not address
respondent-mother’s arguments regarding the trial court’s
conclusion that grounds to terminate her parental rights also
existed under N.C.G.S. § 7B-1111(a)(1),(3) or (9). See In re
P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (holding
“where the trial court finds multiple grounds on which to base a
termination of parental rights, and an appellate court
determines there is at least one ground to support a conclusion
that parental rights should be terminated, it is unnecessary to
address the remaining grounds.” (citation and quotation marks
omitted)). Respondent-mother has not otherwise challenged the
trial court’s order terminating her parental rights to Joseph,
Jacob, and Ivey, and thus, we affirm the order as to respondent-
mother.
II
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Respondent-father also argues the court erred in concluding
grounds existed to terminate his parental rights based on
neglect and failure to make reasonable progress to correct the
conditions that led to the removal of the juvenile pursuant to
N.C.G.S. § 7B-1111(a)(1) and (2). We disagree.
Grounds exist to terminate parental rights when “[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.”
N.C.G.S. § 7B-1111(a)(2). Again, “[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 (2001) (citation omitted).
Here, the trial court found that respondent-father
superficially complied with his case plan in that while he had
completed several components of the plan, he was not “able to
demonstrate through his behavior that he is capable of making
decisions that would not expose his child to further abuse.”
Respondent contends this finding is not supported by the
evidence, because he has fully complied with his case plan and
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his relationship with respondent-mother presents no safety
concern should Ivey be returned to his custody.
The ultimate issue that brought Ivey into DSS’s custody was
respondent-mother’s failure to protect her children. The trial
court found that respondent-mother had not shown that she had
made reasonable progress toward correcting the conditions that
led to the removal of Ivey, because she had not demonstrated
that she is capable of making decisions that would not expose
her children to further abuse and she had an ongoing pattern of
dishonesty toward both DSS and the court. Respondent-father
does not challenge these findings. See Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991). The trial court
further found that respondent-father “has maintained throughout
the life of this case that he intends to remain in a romantic
live-in relationship with [respondent-mother] even if that means
he could not have his minor child [Ivey] in his care and
custody.” Respondent-father was repeatedly informed that so
long as he resided with respondent-mother, he could not be
considered a viable placement for Ivey due to respondent-
mother’s failure to make reasonable progress toward correcting
the conditions that led to the removal of Ivey, and yet he
continued to choose respondent-mother over his child.
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Respondent-father’s steadfast refusal to live apart from
respondent-mother demonstrates that he is still making decisions
that would potentially expose Ivey to future abuse and thus, has
not made reasonable progress to correct those conditions that
led to the removal of the juvenile. Therefore, we hold the
trial court’s conclusion that grounds exist to terminate
respondent-father’s parental rights to Ivey for failure to make
reasonable progress pursuant to N.C.G.S. § 7B-1111(a)(2) is
supported by its findings of fact. Accordingly, we overrule
respondent-father’s argument. See In re S.N., 180 N.C. App.
169, 636 S.E.2d 316 (2006) (affirming termination of parental
rights based on failure to make reasonable progress where the
father made some progress toward his case plan, but did nothing
to remedy the fact that he was maintaining a home with the
mother, which rendered him ineligible to receive custody of his
child due to the mother’s continuing drug abuse).
Because we hold the trial court did not err in concluding
grounds exist to terminate respondent-father’s parental rights
pursuant to N.C.G.S. § 7B-1111(a)(2), we do not address his
arguments regarding the trial court’s conclusion that grounds to
terminate his parental rights also existed under N.C.G.S. § 7B-
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1111(a)(1). In re P.L.P., 173 N.C. App. at 8, 618 S.E.2d at
246.
III
Lastly, respondent-father argues the trial court abused its
discretion in concluding it is in the best interest of Ivey to
terminate his parental rights. We disagree.
“After an adjudication that one or more grounds for
terminating a parent’s rights exist, the court shall determine
whether terminating the parent’s rights is in the juvenile’s
best interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). In making
its determination, the court shall consider and make written
findings about each of the following criteria, if relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental
rights will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive
parent, guardian, custodian, or other
permanent placement.
(6) Any relevant consideration.
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Id. “We review the trial court’s decision to terminate parental
rights for abuse of discretion.” In re Anderson, 151 N.C. App.
94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted).
Respondent concedes that the trial court made findings of
fact about each of the enumerated criteria but argues the
evidence does not support its finding regarding the bond between
him and Ivey. The court specifically found that “[t]he bond
between [Ivey] and [respondent-father] is fair. [Respondent-
father] visits with his child regularly but . . . does not
exhibit the role of a parent but rather of a playmate for the
minor child.” This finding is supported by the testimony of
Robert McEntire, a social worker with DSS.
Based on what I’ve observed, [Ivey] is and
has been comfortable being around
[respondent-father] for the most part. I
think she recognizes him. She’s acquainted
with his presence, but I do not see a strong
emotional bond. And [Ivey], to my knowledge,
has never had any trouble separating from
[respondent-father] when visits are over.
Additionally, Eric Tolbert, a community service technician for
DSS who supervised about 90 visitations between Ivey and
respondent-father, testified that while respondent-father does
well during the visits, respondent-father didn’t learn how to
bring Ivey under control when she’s uncooperative and “pretty
much let her run the show[,]” even after having supervised
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visits for over two years. Accordingly, we hold this finding of
fact is supported by clear, cogent and convincing evidence, and
overrule this argument. See In re Williamson, 91 N.C. App. 668,
674, 373 S.E.2d 317, 320 (1988) (holding that where a trial
court’s findings of fact “are supported by ample, competent
evidence, they are binding on appeal, even though there may be
evidence to the contrary”).
The trial court’s findings of fact regarding Ivey’s best
interest reflect that the court’s conclusion to terminate
respondent-father’s parental rights is a reasoned decision based
upon the statutory factors listed in section 7B-1110(a). We
hold the trial court did not abuse its discretion in determining
it would be in the best interest of Ivey to terminate
respondent-father’s parental rights.
For the foregoing reasons, we affirm the order terminating
the respondents’ parental rights to Joseph, Jacob and Ivey.
Affirmed.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).