In re J.L.H.

• Decision Date: 04 December 2012
• Docket Number: No. COA12–452.,COA12–452.
• Parties: In the Matter of J.L.H.
• Court: North Carolina Court of Appeals

741 S.E.2d 333

In the Matter of J.L.H.

No. COA12–452.

Court of Appeals of North Carolina.

Dec. 4, 2012.

Appeal by respondent-mother from order entered 1 February 2012 by Judge Kimberly Best–Staton in Mecklenburg County District Court. Heard in the Court of Appeals 23 October 2012.

Twyla Hollingsworth–Richardson, for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.

M. Carridy Bender, for Guardian ad Litem.

Rebekah W. Davis, for respondent-appellant mother.

CALABRIA, Judge.

Respondent-mother (“respondent”) appeals from the trial court's order terminating her parental rights to J.L.H. (“Jennifer”).¹ We affirm in part and remand for further findings in part.

On 13 January 2010, the Mecklenburg County Department of Social Services, Youth and Family Services (“YFS”) filed a juvenile petition alleging that Jennifer was a neglected and dependent juvenile. The petition included allegations of improper supervision, sexual abuse, domestic violence, and substance abuse. At that time, the trial court ordered YFS to assume custody of Jennifer for placement in foster care. On 17 February 2010, the trial court adjudicated Jennifer a neglected and dependent juvenile pursuant to a mediated agreement with respondent.

In the following months, the trial court conducted several review and permanency planning hearings. On 14 February 2011, the trial court entered a written order, pursuant to a hearing on 3 February 2011, directing YFS to file a termination of parental rights petition within 60 days. On 11 February 2011, YFS filed a petition to terminate respondent's parental rights on the grounds of neglect, willfully leaving Jennifer in foster care for more than twelve months without showing reasonable progress under the circumstances, and willfully failing to pay a reasonable portion of the cost Jennifer's care.

On 21 and 22 September 2011 and 21 and 22 November 2011, the trial court conducted the termination hearing. On 1 February 2012, the trial court entered an order terminating respondent's parental rights on the basis of neglect, willfully leaving Jennifer in foster care for more than twelve months without showing reasonable progress, and willfully failing to pay a reasonable portion of the cost of care of the children.² Respondent appeals.

II. Adjudication

Respondent argues that the trial court erred in concluding that grounds existed to terminate her parental rights. We disagree.

“The standard of review in termination of parental rights cases is 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.App. 118, 124, 323 S.E.2d 754, 758 (1984). “[T]he trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.” In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997).

Pursuant to N.C. Gen.Stat. § 7B–1111(a)(2), a court may 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. Gen.Stat. § 7B–1111(a)(2) (2011). The willful leaving of the juvenile in foster care is “something less than willful abandonment” and “does not require a showing of fault by the parent.” In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 398 (1996) (citations omitted).

Respondent argues, in part, that the trial court erred in concluding that termination was appropriate on this ground because she did everything she was told to do by petitioner. However, this Court has previously held that a finding of this ground may be made even when the parent has made some effort to regain custody of the child because the parent must also show reasonable and positive progress in correcting the conditions which led to the juvenile's removal. See In re Nolen, 117 N.C.App. 693, 699–700, 453 S.E.2d 220, 224–25 (1995).

To support its conclusion that respondent willfully left Jennifer in foster care for more than twelve months without making reasonable progress under the circumstances, the trial court made the following findings in the adjudication portion of the termination order:

11. The respondent mother is still not participating in her own therapy. If the mother cannot address her own mental health needs, she cannot address [Jennifer's] traumatization. The mother has expressed the opinion during this Court's involvement as it relates to [Jennifer's] sexual abuse by her sibling, ... that “she just needs to get over it”! [Respondent] has not taken the steps necessary to address the issues which brought [Jennifer] into custody, and has not recognized the impact of [Jennifer's] sexual victimization.

12. The respondent mother agreed that she would comply with therapy for herself and [Jennifer]. The respondent mother attended two therapy appointments with [Jennifer] in May 2011, attended no therapy appointments in June 2011, attended two therapy appointments in July 2011, attended no appointments in August 2011, attended one therapy appointment in September 2011, and has not returned since September 2011 to therapy.

13. As a part of the respondent mother's family service agreement or case plan, [respondent] was ordered to complete domestic violence counseling, substance abuse treatment, parenting education, mental health treatment, and engage in therapy with [Jennifer] and her sibling.

14. The respondent mother complied with elements of her domestic violence family service agreement obligation. [Respondent] completed the Women's Commission program in July 2010. [Respondent] completed parenting education in February 2011.

Respondent specifically challenges findings 11, 12, and 14 as unsupported by the evidence.³ Since finding of fact 13 is unchallenged, it is presumed to be correct and supported by the evidence. See In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982).

The record provides competent evidence to support findings of fact 11 and 12. Jennifer's therapist, Denise Little (“Ms. Little”), testified to respondent's numerous missed appointments and failure to participate in Jennifer's therapy. Ms. Little also testified that respondent's involvement was necessary to Jennifer's recovery and to respondent's understanding of the impact of sexual abuse on her child.

YFS social worker assistant Leslie Simmons (“Ms. Simmons”) testified that she observed inappropriate touching between Jennifer and her brother during visits and that respondent failed to stop this behavior. YFS senior social worker Lynda Peperak (“Ms. Peperak”) testified about respondent's overall performance on her case plan goals and behavior throughout YFS's interaction with respondent. Ms. Peperak reported respondent'sinappropriate comments that Jennifer “should just get over [her sexual abuse]” and that “every child is touched inappropriately.” Ms. Peperak also described respondent's participation in therapy, the many accommodations provided to respondent to encourage her to attend Jennifer's therapy, and respondent's apathetic attitude towards the lessons offered in domestic violence counseling, parenting classes, and therapy generally.

Finally, psychologist Dr. Terri Watters (“Dr. Watters”) testified regarding her psychological evaluations of respondent. The evaluations revealed respondent's narcissistic traits. The court accepted into evidence and considered the Parenting Capacity Evaluation (“PCE”) which Dr. Watters wrote. In her PCE, Dr. Watters expressed concern that respondent would seek out another violent relationship if she failed to address her own mental health needs. Thus, findings of fact 11 and 12 were supported by clear, cogent, and convincing evidence.

As to finding of fact 14, respondent takes issue with the portion of the finding which states that she “complied with elements of her domestic violence service agreement obligation.” Respondent contends that this finding implies that she did not comply with the totality of the agreement. Respondent argues that, under the agreement, she was required to obtain an assessment and follow through on all recommendations and that she did what she was told.

Respondent is correct that her agreement required her to complete a domestic violence assessment and follow all treatment recommendations. Specifically, the agreement required her “to participate in Domestic Violence treatment to learn about and engage in healthy relationships.” (Emphasis added). However, Ms. Peperak testified that even though respondent had completed a twelve-week program at the Women's Commission, she had not implemented the skills she had learned there. For example, Ms. Peperak testified that respondent failed to walk away or contact law enforcement when respondent “ran into” Jennifer's father. Based upon Ms. Peperak's testimony, we conclude finding of fact 14 is supported by clear, cogent and convincing evidence.

The trial court's findings demonstrate that, although respondent had participated in some services, her failure to participate with her own mental health treatment and her inconsistency in participating in Jennifer's therapy was not reasonable progress under the circumstances. Therefore, the trial court's findings, which were supported by competent evidence, supported its conclusion that a ground existed to terminate respondent's parental rights because respondent willfully left Jennifer in foster care for more than twelve months and failed to make reasonable progress to correct the conditions which led to Jennifer's removal.

Since we have found that the trial court properly terminated respondent's parental rights on the basis of her willfully leaving Jennifer in foster care for more than...