In re A.A.C.D.

Decision Date21 February 2023
Docket NumberCOA22-202
PartiesIN THE MATTER OF: A.A.C.D.
CourtCourt of Appeal of North Carolina (US)

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Heard in the Court of Appeals 30 January 2023.

Appeal by respondent mother from order entered 9 November 2021 by Judge Aretha V. Blake in Mecklenburg County No. 19 JT 143 District Court

Shawnea Taylor for petitioner-appellee Mecklenburg County Department of Social Services/Division of Youth and Family Services.

Poyner Spruill LLP, by Stephanie L. Gumm, for Guardian ad Litem.

David A. Perez for respondent-appellant mother.

Panel consisting of Judges ZACHARY, MURPHY, and ARROWOOD.

PER CURIAM

Respondent mother appeals from an order terminating her parental rights to A.A.C.D. ("Adam").[1] After careful consideration, we affirm the termination order.

I. Background

Respondent mother's family has an extensive history with Mecklenburg County Youth and Family Services ("YFS"), dating back to 2012.

On 24 March 2019, YFS received a report that respondent mother had tested positive for amphetamines while giving birth to Adam. Respondent mother communicated to hospital staff that she used methamphetamines at least two to three times per week while she was pregnant with Adam, which put him at "high risk." Respondent mother also informed the staff that she had limited prenatal care while she was pregnant with Adam. The hospital staff reported concerns that respondent mother was impaired at times while she was in the hospital after giving birth to Adam. Respondent mother also refused hospital staff's guidance not to sleep with Adam in her hospital bed.

At the time Adam was born, respondent mother lived with four of her five other children in a two-bedroom apartment, along with her friend and that friend's four children (a total of ten people). YFS visited the apartment while respondent mother was in the hospital after giving birth to Adam and found that there was limited food in the home, including only a one-pound bag of rice, beans, and a half-full bag of tortillas.

Of respondent mother's three school-age children living in the home at the time of Adam's birth, none were enrolled in school. Respondent mother was not receiving any public assistance; both her food stamps and Temporary Assistance for Needy Families benefit had been terminated. One of respondent mother's children living with her was several years behind on immunizations, and another had not had a wellness visit nor immunizations since he was born. When respondent mother delivered Adam, YFS had no information regarding the whereabouts of her sixth child.

YFS filed a petition alleging the children to be neglected and dependent on or about 28 March 2019 and obtained nonsecure custody of the children. On 6 June 2019, based on the stipulated facts recited above, the trial court adjudicated Adam, as well as respondent mother's four other children who were in her custody, to be neglected and dependent. The court determined that it was in Adam's best interest to remain in YFS's custody.

In the Dispositional Hearing Order entered on 22 July 2019, the trial court ordered respondent mother to comply with her case plan, which required she obtain an assessment for substance abuse, domestic violence, and mental health issues participate in therapy to address domestic violence and other trauma issues; participate in parenting classes; maintain her current residence in a clean and sanitary manner; and obtain employment.

On 3 December 2019, the trial court entered a permanency planning order (a "PPO") setting the permanent plan for Adam as reunification with a concurrent plan of legal guardianship. The court found that although Adam was placed with respondent mother in a trial home placement in the "early summer," he was removed prior to the 4 September 2019 review hearing due to concerns from the local department of social services regarding the family. The court also found that respondent mother had not made progress on her plan, having attended only one parenting class, and having failed to take advantage of the support opportunities provided by YFS. The court again ordered respondent mother to comply with the components of her case plan.

Following a review hearing held on 10 December 2019 and 24 January 2020, the trial court entered an amended PPO on 1 April 2020 changing the primary permanent plan to legal guardianship with secondary concurrent plans of reunification and adoption. The court found respondent mother was not making adequate progress on her case plan and still needed to "complete substance abuse treatment, maintain stable housing, maintain employment and provide verification, sign releases, resume visitation, engage in domestic violence treatment, and participate in parenting classes."

In a PPO entered on 31 August 2020, the trial court changed Adam's primary plan to adoption with a secondary plan of reunification. The court found that respondent mother had not completed her case plan services, had not attended any parenting classes in over one year, and had recently been arrested on charges related to Adam's father.

After maintaining custody of Adam for over two years, YFS petitioned to terminate respondent mother's parental rights on 19 April 2021 (the "TPR Petition"). YFS alleged grounds existed to terminate respondent mother's parental rights based on neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), willful failure to make reasonable progress pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), willful failure to pay a reasonable portion of Adam's cost of care pursuant to N.C. Gen. Stat. § 7B-1111(a)(3), dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), and willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).

After a hearing on the TPR Petition, the trial court entered an order on 9 November 2021 (the "TPR Order"), finding that respondent mother's parental rights to Adam were subject to termination on four grounds: N.C. Gen. Stat. § 7B-1111(a)(1)-(2) and (6)-(7). The trial court also found that termination of respondent mother's parental rights was in Adam's best interests, and, accordingly, terminated respondent mother's parental rights. Respondent mother appealed the TPR Order on 9 December 2021.

II. Analysis

On appeal, respondent mother challenges the trial court's adjudication of grounds for termination of her parental rights on all four grounds- N.C. Gen. Stat. § 7B-1111(a)(1)-(2) and (6)-(7).

A. Standard of Review

We review a trial court's decision that grounds exist to terminate parental rights "to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re E.H.P., 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (citation omitted). "Findings of fact not challenged by respondent are deemed supported by competent evidence and are binding on appeal." In re T.N.H., 372 N.C. 403, 407, 831 S.E.2d 54, 58 (2019).

"Moreover, we review only those findings necessary to support the trial court's determination that grounds existed to terminate respondent's parental rights." Id. at 407, 831 S.E.2d at 58-59. "The trial court's conclusions of law are reviewable de novo on appeal." In re C.B.C., 373 N.C. 16, 19, 832 S.E.2d 692, 695 (2019).

B. Reasonable Progress

Respondent mother first argues the trial court erred in concluding grounds existed under N.C. Gen. Stat. § 7B-1111(a)(2). Section 7B-1111(a)(2) states that the trial court may terminate parental rights when "[t]he parent has willfully left the juvenile in foster care . . . for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting th[e] conditions which led to the [juvenile's] removal[.]" N.C. Gen. Stat. § 7B-1111(a)(2) (2021). "To terminate rights on this ground, the court must determine two things: (1) whether the parent willfully left the child in foster care for more than twelve months, and if so, (2) whether the parent has not made reasonable progress in correcting the conditions that led to the removal of the child from the home." In re C.M.S., 184 N.C.App. 488, 494, 646 S.E.2d 592, 596, disc. rev. denied, 361 N.C. 693, 654 S.E.2d 248 (2007).

"A finding of willfulness 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). "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. rev. 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 evidence supports the trial court's finding that Adam had been in the custody of YFS and placed in foster care for more than twelve months prior to the filing of the TPR Petition. Respondent mother's only argument in support of her contention that termination was improper under § 7B-1111(a)(2) is that she made reasonable progress in correcting the conditions that led to Adam's removal from the home.

1. Challenged Findings

Respondent mother first challenges the following findings of fact from the TPR Order:

7. [Respondent mother] has failed to make adequate progress on addressing the issues that brought the children into custody. Throughout this case she has made inconsistent efforts to engage with
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