In re L.O.K.
| Decision Date | 15 November 2005 |
| Docket Number | No. COA04-1684.,COA04-1684. |
| Citation | 621 S.E.2d 236 |
| Parties | In the Matter of L.O.K., J.K.W., T.L.W., and T.L.W. |
| Court | North Carolina Supreme Court |
Jamie L. Hamlett, Burlington, for petitioner-appellee.
Sophie W. Hosford, Wilmington, for respondent-appellant.
The respondent mother appeals the trial court's order terminating her parental rights to her four minor children, L.O.K., T.L.W., T.L.W., and J.K.W.1 Respondent argues primarily that Rule 41(a)(1) of the Rules of Civil Procedure required that the trial court dismiss the petition to terminate her parental rights because the Alamance County Department of Social Services ("DSS") had dismissed a prior petition after having rested its case. Because we hold that this aspect of Rule 41(a)(1) does not apply in proceedings to terminate parental rights and because respondent's remaining assignments of error are without merit, we affirm.
Respondent did not specifically assign error to any of the trial court's 109 findings of fact apart from a general statement that the trial court's conclusions of law are not supported by clear and convincing evidence. It is, however, well established that a "broadside exception that the trial court's conclusion of law is not supported by the evidence, does not present for review the sufficiency of the evidence to support the entire body of the findings of fact." In re Beasley, 147 N.C.App. 399, 405, 555 S.E.2d 643, 647 (2001). In the absence of a specific assignment of error, a trial court's findings of fact are deemed to be supported by competent evidence and are conclusive on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ().
In this case, the trial court's findings of fact in its order terminating respondent's parental rights and the findings in prior unchallenged orders establish the following facts. At the time of the termination hearing, L.O.K. was 12 years old, T.W. was 10 years old, T.L.W. was 8 years old, and J.K.W. was 6 years old. L.O.K. had not seen respondent for at least three years prior to the hearing, while the other three children had not seen respondent for at least two years.
L.O.K. and T.W. were first taken into custody by DSS on 17 March 1995. On 18 May 1995, the trial court determined that L.O.K. and T.W. were neglected children. The mother stipulated that (1) L.O.K. had unexplained cigarette burns on his leg, (2) respondent's husband had sliced L.O.K. on his neck and hand, (3) the husband threatened L.O.K., (4) respondent violated a protection plan in which she agreed not to leave her children alone with her husband, and (5) respondent had failed to enforce a domestic violence protective order. Subsequently, the court attempted a trial placement with respondent: L.O.K. was returned to his mother's home on 16 August 1996, while T.W. was returned on 20 December 1996. On 19 January 1997, however, both children were again removed because respondent's husband was still living with the family despite the domestic violence protection order prohibiting respondent's husband from entering the home.
T.L.W., who was approximately a year old, was also adjudicated as neglected on 24 April 1997. On 23 October 1997, the trial court entered an order directing DSS to cease efforts to reunify the three children with their parents. At a subsequent permanency planning hearing, however, the trial court determined that L.O.K.'s father had received an active prison term, respondent had secured a divorce from him and had not seen him in a year, and the threat of danger from her inability to protect the children no longer existed. The trial court, therefore, entered an order on 2 November 1998 requiring DSS to resume reunification efforts.
On 23 December 1998, L.O.K., T.W., and T.L.W. were again placed with their mother. Respondent quit her job the next day, with the result that she had four children (including another baby, J.K.W.) in her home with no income. Respondent did not contact DSS to request assistance or otherwise seek help with food stamps or daycare. The children were removed on 8 January 1999 because respondent was "in a distressed emotional state" and DSS was concerned for the children's safety and welfare.
At a review hearing on 19 April 1999, the trial court ordered weekend visitation between respondent and the children. Because of conditions observed during the weekend visitation on 26 July 1999, DSS obtained non-secure custody of the approximately year-old J.K.W. "due to the environmental conditions of the home not being safe for the four juveniles to remain at the residence."
On 8 November 1999, DSS attempted a trial placement of J.K.W. with respondent. On 9 December 1999, respondent failed to pick J.K.W. up from daycare and did not check on the welfare of J.K.W. until 10:00 p.m. that evening. J.K.W. was placed back into foster care. The following morning, respondent told the DSS social worker that she could not bring herself to pick up her child from daycare, that she could no longer care for J.K.W., and that she would sign a voluntary relinquishment of parental rights to her four children. She did not, however, ever follow through on the voluntary relinquishment. J.K.W. was adjudicated to be a neglected child on 3 January 2000.
On 21 January 2000, respondent agreed to a visitation schedule for J.K.W. On 11 February 2000, however, respondent was 30 minutes late for her visit and was not truthful regarding her reason for being late. On 21 February 2000, respondent also failed to appear for a permanency planning hearing. The trial court, therefore, entered an order ceasing reunification efforts. DSS filed a petition for termination of parental rights on 24 August 2000.
In February 2001, when respondent became pregnant with her fifth child, she moved to "Room at the Inn" in Greensboro, a home for single and expectant mothers. At that time, DSS spoke to respondent for the first time in several months and asked why she had not kept in contact with DSS. When respondent indicated that she did not think she needed to keep in touch, the DSS social worker explained that it was necessary in order to indicate that she was making an effort to regain her children and to allow DSS to assist in providing services. While at "Room at the Inn," respondent progressed into "Partnership Village," a facility for integrating homeless people into society and received training in medical office technology at Guilford Technical Community College. Respondent ultimately had a paying job at "Room at the Inn" and had her own apartment, automobile, and the use of a cell phone.
From February 2001 until 16 June 2002, respondent maintained "some contact" with the DSS social worker. A hearing on DSS' petition to terminate respondent's parental rights was held on 26 February 2002, 27 February 2002, and 1 March 2002. After DSS rested its case and while respondent was presenting her case, DSS voluntarily dismissed the petition.
In July 2002, respondent left "Room at the Inn" for Cleveland, Ohio. She did not, however, leave a forwarding address or telephone number. After learning from others that respondent might have moved to Ohio, DSS made numerous efforts to locate her, including sending letters and copies of court orders to respondent's relatives in Ohio. On 15 October 2002, DSS filed a second petition for termination of parental rights.
DSS finally located respondent in January 2004 through Child Support Parent Locator services. From January 2004 until the termination hearing, respondent declined to make further contact with DSS except for a telephone conversation on 1 April 2004. In that telephone conversation, DSS reminded respondent that it was okay for her to send the children cards and letters. While respondent had on one occasion after January 2001 provided DSS with cards for her children and she had delivered a second card for L.O.K. in May 2002, she sent no cards or letters from July 2002 through the date of the termination hearing. During that period, respondent also failed to make contact with the children's foster parents to inquire about the condition of the children; failed to send the children any gifts; and failed to attend permanency planning and review hearings of which she had knowledge.
In Ohio, respondent first lived with her sister. She obtained employment at McDonald's for three months. After at least eight months of unemployment, respondent then began working at Wal-Mart. Although respondent testified that she had a car and childcare, she provided no further details and DSS was unable to verify any of her living and working arrangements.
Following hearings on 26-27 April 2004, 29 April 2004, 5 May 2004, 7 May 2004, and 2 June 2004, the trial court entered an order on 7 July 2004 terminating respondent's parental rights to L.O.K., T.W., T.L.W., and J.K.W. The trial court denied respondent's motions to dismiss (filed as to each child), in which she contended that the second petition was barred by DSS' dismissal of the first petition. The court determined that grounds for termination existed as to each child, concluding (1) that respondent had neglected each child and (2) that respondent had willfully left each child in foster care for more than 12 months without showing reasonable progress under the circumstances in correcting the conditions that led to the removal of the children. Respondent filed notice of appeal from that order on 12 July 2004.
Respondent first argues that the trial court erred in denying her motions to dismiss. Respondent contends that under Rule 41(a)(1), DSS could not voluntarily dismiss without...
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