In the Matter of L.S.C-W., No. COA09-54 (N.C. App. 6/2/2009)
| Decision Date | 02 June 2009 |
| Docket Number | No. COA09-54,COA09-54 |
| Court | North Carolina Court of Appeals |
| Parties | IN THE MATTER OF: L.S.C-W., a minor child |
Pamela Newell Williams, for appellee Guardian ad Litem.
Duncan B. McCormick, for respondent-appellant mother.
Respondent mother, Ebony. W. (Respondent Mother), appeals the trial court's termination of her parental rights with respect to her daughter, L.S.C-W. (Lisa).1 We affirm.
The Division of Youth and Family Services of the Mecklenburg County Department of Social Services (YFS) initially became involved with Respondent Mother and her children in November 2004 based upon allegations that Respondent Mother was involved in drug use and had failed to provide proper care for Lisa's oldersiblings. Respondent's parental rights with respect to those children were terminated on 3 October 2006 after police "found the youngest child in a home with [Respondent Mother] where marijuana, cocaine and a shotgun were found."
On 12 December 2006, Respondent Mother gave birth to Lisa. Two days later, YFS filed a petition alleging that Lisa was a neglected and dependent juvenile and sought and obtained the entry of a nonsecure custody order authorizing YFS to take custody of Lisa after YFS learned that Lisa tested positive for cocaine. Upon gaining custody, YFS placed Lisa in a foster home, which has become a potential adoptive placement.
On 17 January 2007, Respondent Mother reached a mediated agreement with YFS in which she was given one year from the date of the 14 December 2006 petition to demonstrate compliance with an integrated case plan. The agreement provided, in pertinent part, that "[t]hroughout the year [Respondent Mother] need[ed] to show reasonable progress . . . towards compliance with the case plan." Respondent Mother also agreed to "successfully resolve any substance abuse or alcohol abuse issues and maintain sobriety on an ongoing basis." The mediated case plan provided that:
F.I.R.S.T. Assessment: The Department and Guardian ad Litem recommend[] [that Respondent Mother] complete an assessment through the F.I.R.S.T. program and [that] she follow through on all recommendations. . . . [Respondent Mother] is to sign all necessary releases for the social worker to be able to monitor her progress in her treatment programs . . . .
Substance Abuse: Substance abuse treatment is the first priority in this case plan. . . . [Respondent Mother] has completed a substance abuse assessment at the McLeod Center on December 18, 2006 and was recommended for inpatient treatment. [Respondent Mother] will research the best inpatient program available to her and take the necessary steps to enroll in the program. . . . She will participate in random drug tests within 24 hours of a request by the social worker. If [Respondent Mother] misses a drug screen, the drug test will be considered positive.
Domestic Violence: [Respondent Mother] has agreed to complete a domestic violence assessment at the Women's Commission and follow through on all recommendations.
Employment: [Respondent Mother] is to obtain legal, stable employment and have sufficient income to meet her child's basic needs for food, shelter, clothing, education and health care . . . .
Safe and appropriate Housing: [Respondent Mother] will obtain an appropriate, safe, and stable living environment for herself and her child.
Contact with social worker: [Respondent Mother] is to keep the social worker informed of any changes in [her] contact information including change of address and phone number.
[] Medical Appointments: [Respondent Mother] will attend [Lisa's] medical appointments when notified by the social worker and she is able to do so.
During a visit with Lisa on 20 February 2007, a YFS employee observed Respondent Mother "pacing and displaying paranoid behavior." Consequently, Social Worker Kimberlee Mitchell (Mitchell) asked Respondent Mother to submit to a urinalysis for the presence of controlled substances. Respondent Mother refused to take the test, leading to the termination of the 20 February 2007 visit and the suspension of future visitations. On 29 March 2007, Lisa was adjudicated neglected and dependent as to her mother pursuant to N.C. Gen. Stat. § 7B-901. The adjudication order stipulated that "visitation may be reinstated if [Respondent Mother] goes to Detox and complies with recommendations." The court specifically found that the "primary issue that need[ed] to be addressed [was] substance abuse" and that the issues that led to adjudication "included but [were] not limited to substance abuse and lack of proper care for juvenile." The court adopted the YFS recommendations and the mediated case plan initially agreed to among the parties in the dispositional portion of the 29 March 2007 order.
Prior to February 2007, Respondent Mother lived with Willie C. After moving out of the home she shared with Willie C., Respondent Mother began living in hotels and supporting herself by passing bad checks. On 28 April 2007, Respondent Mother was arrested and incarcerated in Mecklenburg County. She was subsequently transferred to Buncombe County in May 2007 to face additional charges, and to Haywood County in December 2007 to face even more charges. Respondent Mother has been continually incarcerated since 28 April 2007.
On 25 June 2007, Lisa was adjudicated neglected and dependent as to Willie C. On 5 July 2007, the court ordered that "[r]easonable [e]fforts to reunite the child with parents be suspended pursuant to" N.C. Gen. Stat. § 7B-507. On 25 July 2007, the court conducted a permanency planning hearing and determined that the parents' rights should be terminated since they had "not remedied issues that led [Lisa] into custody." On 13 August 2007, YFS filed a petition seeking the termination of both Respondent Mother's and Willie C.'s parental rights as to Lisa. On 25 January 2008, a second permanency planning hearing was held at which the court continued to find that adoption would be in Lisa's best interest.
On 26 February 2008, an order terminating the parental rights of both Respondent Mother and Willie C. in Lisa was entered by Mecklenburg District Court Judge Lisa C. Bell. Subsequently, YFS filed a Motion for Relief From Order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) on the grounds that "there was no summons issued in juvenile's name and identifying the juvenile as a respondent." On 27 March 2008, the court vacated the 26 February 2008 order.
YFS filed a second petition to terminate the parental rights of Respondent Mother and Willie C. in Lisa on 30 April 2008. On 14 August 2008, Respondent Mother filed a handwritten response to the YFS petition. The termination petition came on for hearing before Judge Louis A. Trosch (the trial court) at the 26 September 2008 Juvenile Session of the Mecklenburg County District Court. On 29 October 2008, the trial court entered an order terminating the parental rights of both parents in Lisa (the termination order). The trial court found that grounds existed for the termination of Respondent Mother's parental rights in Lisa under N.C. Gen. Stat. §§ 7B-1111(a)(1)(neglect); 7B-1111(a)(2)(failure to show reasonable progress despite the placement of the juvenile outside the home for more than 12 months); and 7B-1111(a)(9) (). On 24 November 2008, Respondent Mother filed a notice of appeal from the trial court's termination order.2
Proceedings involving requests for the termination of parental rights are decided using a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). First, during the adjudication stage, the trial court attempts to determine whether at least one of the grounds for terminating parental rights specified in N.C. Gen. Stat. § 7B-1111 exists. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). If the trial court determines that properly-supported grounds for termination exist, it then proceeds to the dispositional stage, at which it decides whether termination of the parent's parental rights is in the best interests of the child. Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
In any order terminating a parent's parental rights, the court must find facts and adjudicate the existence or nonexistence of the statutory grounds for termination set forth in N.C. Gen. Stat. § 7B-1111. The court's findings of fact must be supported by clear, cogent, and convincing evidence. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984); In re White, 81 N.C. App. 82, 344 S.E.2d 36, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 470 (1986). Any finding of fact to which an appealing party has not assigned error and challenged in his or her brief is binding on this Court. In re J.D.S., 170 N.C. App. 244, 250-51, 612 S.E.2d 350, 354-55, cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005). Although a trial judge that finds the existence of one or more of the grounds for termination specified in N.C. Gen. Stat. § 7B-1111 is not required to terminate the parental rights of the parent in question, the court has the authority to do so in the exercise of its discretion upon making such a determination. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
Respondent Mother first contends that the trial court erred by finding that her parental rights were subject to termination on the grounds of neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). After careful consideration of Respondent Mother's contentions, we disagree.
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