An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA14-209
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
IN THE MATTER OF: Rutherford County
No. 11 JT 039
E.L.H.,
A Minor Child.
_________________________
IN THE MATTER OF: Rutherford County
No. 11 JT 040
R.N.H.,
A Minor Child.
Appeal by respondent from orders entered 2 December 2013 by
Judge Laura A. Powell in Rutherford County District Court.
Heard in the Court of Appeals 30 June 2014.
Merri Burwell Oxley, for petitioner-appellee.
Michael E. Casterline, for respondent-appellant.
K&L Gates LLP, by Leah D’Aurora Richardson, for Guardian ad
Litem.
MARTIN, Chief Judge.
Respondent appeals from orders terminating her parental
rights to her minor children E.L.H. and R.N.H. We affirm in
-2-
part and remand in part.
On 6 April 2011, the Rutherford County Department of Social
Services (“DSS”) filed petitions alleging that E.L.H., age four,
and R.N.H., age two, were neglected and dependent juveniles.
The court entered orders adjudicating them as dependent
juveniles on 17 June 2011. In its adjudication orders, the
court found that DSS became involved with the family after it
received a report, which was subsequently substantiated,
concerning domestic violence between respondent and her
boyfriend. The report also raised concerns about drug usage and
about respondent’s untreated mental health issues. Respondent
was subsequently arrested on charges of driving without an
operator’s license and two counts of misdemeanor child abuse.
Due to her incarceration, the children were placed in kinship
care with respondent’s sister until 6 April 2011, when the
children’s maternal relatives notified DSS that they could no
longer keep the children. Respondent was asked to provide an
alternative placement but no family members were willing to take
the children. The address of the children’s father was unknown.
After a permanency planning hearing on 13 June 2013, the
court entered an order in which it found that, in late
January 2013, respondent sold marijuana on two separate
occasions in her home. These transactions were recorded by
-3-
audio and video. A convicted felon who possessed a stolen
firearm was in the residence with respondent for one of these
transactions and “actually participated in said sale.” After
determining that returning the minor children to respondent’s
home “would be contrary to the welfare” of the children, the
court changed the permanent plan to adoption and ordered DSS to
pursue termination of respondent’s parental rights.
DSS filed petitions to terminate respondent’s parental
rights to both minor children on 1 August 2013. After hearing
the matter, the court entered orders on 2 December 2013
terminating respondent’s parental rights to both minor children
on the grounds that she willfully left the children in foster
care for more than twelve months without making reasonable
progress in correcting the conditions that led to the removal of
the children pursuant to N.C.G.S. § 7B-1111(a)(2). The court
concluded that termination of respondent’s parental rights was
in the best interests of each child. Respondent appeals from
these orders.
_________________________
Respondent first contends the trial court erred by
terminating her parental rights to the minor children based on
the court’s conclusion that she willfully left the children in
foster care for more than twelve months without showing that she
-4-
had made reasonable progress in correcting the conditions which
led to their removal. She asserts that, in reaching this
conclusion, the trial court “ignored” evidence of her
“considerable efforts to improve her own mental health,” as well
as “the improvements she made in the areas of household
stability and parenting.”
“Termination of parental rights is a two-step procedure.”
In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5, disc.
review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). “During the
initial adjudication phase of the trial, the petitioner seeking
termination must show by clear, cogent, and convincing evidence
that grounds exist to terminate parental rights.” Id. “A
finding of any one of those grounds is sufficient to support
termination of parental rights.” Id. “If the petitioner
succeeds in establishing the existence of any one of the
statutory grounds listed in [N.C.G.S.] § 7B–1111, the trial
court moves to the second, or dispositional, stage, where it
determines whether it is in the best interests of the child to
terminate the parental rights.” Id. (internal quotation marks
omitted).
“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
-5-
turn, support the conclusions of law.” Id. at 221, 591 S.E.2d
at 6 (internal quotation marks omitted). “We then consider,
based on the grounds found for termination, whether the trial
court abused its discretion in finding termination to be in the
best interest of the child.” Id. at 222, 591 S.E.2d at 6.
N.C.G.S. § 7B-1111(a)(2) provides, in relevant part, that
the trial court may terminate parental rights upon a 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.”
N.C. Gen. Stat. § 7B-1111(a)(2) (2013). To sustain a trial
court’s decision to terminate parental rights under this
statutory ground, we must “determine that there was clear,
cogent, and convincing evidence that (1) respondents ‘willfully’
left the juvenile in foster care for more than twelve months,
and (2) that each respondent had failed to make ‘reasonable
progress’ in correcting the conditions that led to the
juvenile’s removal from the home.” In re Baker, 158 N.C. App.
491, 494, 581 S.E.2d 144, 146 (2003). “Willfulness may be found
under this statute where the parent, recognizing her inability
to care for the child, voluntarily leaves the child in foster
-6-
care.” In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d
393, 398 (1996). Additionally, “[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, disc. review denied,
354 N.C. 218, 554 S.E.2d 341 (2001). Further, “[w]illfulness
may be found where[,] even though a parent has made some attempt
to regain custody of the child, the parent has failed to show
reasonable progress or a positive response to the diligent
efforts of DSS.” In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d
657, 662 (2003) (internal quotation marks omitted).
In the present case, respondent does not dispute that, at
the time this matter was heard by the trial court, the minor
children had been in foster care for 939 days, which represented
one-third of E.L.H.’s life and one-half of R.N.H’s life to date.
Respondent contends only that the court erred by determining
that she had left the children in foster care for more than
twelve months “without showing, to the satisfaction of the
[c]ourt, that reasonable progress under the circumstances ha[d]
been made in correcting those conditions that led to the removal
of the juvenile[s].” However, the trial court’s unchallenged
findings of fact reflect that the court removed the minor
children from respondent’s home in 2011 “due to reports of
-7-
domestic violence in the home,” and due to “concerns about the
respondent mother’s drug usage and mental health status.” The
court also found that, in late January 2013, respondent
participated in two separate illegal drug sales at her home, was
subsequently arrested for two counts of possession with intent
to sell and deliver marijuana, and later pled guilty to these
charges. The court further found that, on 5 February 2013,
respondent “was involved in an illegal gun sale in which she
assisted” “a convicted felon and known gang member,” who was
present during the sale, by frisking an informant who arrived to
purchase the gun. The court also found the following as to each
child:
21. By her own testimony, the respondent
mother did not think there was anything
wrong with a convicted felon selling a
firearm from her residence.
22. The respondent mother also thinks her
association with drug dealers and a
convicted felon selling firearms is
acceptable and even believes she has
the blessing of her therapist to
continue to associate with such people
and thought this association was good
for her.
23. The respondent mother’s judgment is
clearly impaired, not by substances but
by her mental illness.
24. The [c]ourt is not aware of any other
services that could be offered to the
respondent mother that would modify her
-8-
behavior such that it would be safe to
return the [minor children] to the
respondent mother’s care.
25. That the respondent mother’s home where
she sold illegal controlled substances
and where a convicted felon was present
with a stolen firearm is not a safe
environment for the [minor children].
26. That the [minor children have] been in
foster care for the last 30 months.
Although respondent directs this Court’s attention to evidence
that she complied with DSS’s recommendations to complete
parenting classes, obtain appropriate housing, and participate
in substance abuse and mental health assessments and follow-up
treatment, as we recognized above, “[w]illfulness may be found
where[,] even though a parent has made some attempt to regain
custody of the child, the parent has failed to show reasonable
progress or a positive response to the diligent efforts of DSS.”
See In re Clark, 159 N.C. App. at 84, 582 S.E.2d at 662
(emphases added) (internal quotation marks omitted). Thus,
because the unchallenged findings——which are binding on appeal,
see Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991) (“Where no exception is taken to a finding of fact by the
trial court, the finding is presumed to be supported by
competent evidence and is binding on appeal.”)——support the
trial court’s conclusion that respondent willfully left the
-9-
minor children in foster care without making reasonable progress
in correcting the conditions which led to their removal from the
home, we overrule this issue on appeal.
Respondent next contends the trial court erred by failing
to make written findings concerning the bond between respondent
and the minor children when determining whether terminating her
parental rights to E.L.H. and R.N.H. would be in each child’s
best interest.
In determining whether termination of parental rights is in
the best interest of a child, the trial court is required to
“consider” and “make written findings regarding the following
that are relevant,” N.C. Gen. Stat. § 7B-1110(a) (2013):
(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
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.
Id. While N.C.G.S. § 7B-1110(a) “requires the trial court to
-10-
‘consider’ all six of the listed factors,” In re D.H., __ N.C.
App. __, __, 753 S.E.2d 732, 735 (2014), “the court must enter
written findings in its order concerning only those factors
‘that are relevant.’” Id. at __, 753 S.E.2d at 735 (emphases
added). Where issues with respect to one or more factors——for
example, concerning “the quality of the bond between [a minor
child] and respondent[——]were raised during [a] termination
hearing, but the trial court did not make any written findings
regarding these factors,” see In re J.L.H., __ N.C. App. __, __,
741 S.E.2d 333, 338 (2012), this Court has determined that the
trial court erred and has remanded the matter to the trial court
“for entry of appropriate findings pursuant to [N.C.G.S.] § 7B-
1110(a),” id. at __, 741 S.E.2d at 338, where “the record
contain[ed] evidence from which the court could make findings as
to this factor.” Id. at __, 741 S.E.2d at 338.
Here, the reports submitted by DSS to the trial court
indicate that, prior to respondent’s arrest, respondent was
granted limited, unsupervised, weekly visitation with the minor
children, which visits “went well,” and that both children “were
eager to live with” respondent. The guardian ad litem’s report
submitted in connection with the 24 April 2013 permanency
planning hearing for both children indicates that E.L.H. “has
expressed somewhat of an interest in returning to his mother,”
-11-
and that R.N.H. “is too young to be sure what he wants.” The
guardian ad litem recommended that respondent be allowed to
“have many unsupervised visits with her children, as dictated by
the [c]ourt, until their return to her is proven the absolute
right thing for them.”
During the dispositional portion of the termination
proceedings, a DSS social worker testified that the children
“are bonded with the mother.” The social worker also testified
that, after reunification efforts ceased, the children inquired
about the welfare of their mother but did not appear to have
issues concerning the cessation of their visitations with her.
Respondent also testified with respect to the efforts she made
to have the children returned to her care. She testified that
she “put [the minor children] before [her] so much so that [she]
ha[s] done lots of things that [she] did not want to do in their
best interest for them and for only them.” She also declared
that she “love[s] them so much,” and that she “would never harm
them” or “allow them to be abused either.” She further
testified that, before the minor children were taken away from
her, she kept a diary concerning E.L.H. every day, from the
child’s birth until he was eight months old. In light of the
evidence presented to the trial court regarding the bond between
respondent and the minor children, and in light of recent
-12-
decisions from this Court, we conclude that the foregoing
evidence placed the statutory factor of the bond between
respondent and the minor children into issue. Therefore, we
hold that the trial court erred by failing to make a finding of
fact concerning the bond between respondent and the minor
children. Thus, we affirm the adjudicatory portion of the
court’s orders determining that E.L.H. and R.N.H. are dependent
and that respondent willfully left the minor children in foster
care for more than twelve months without showing, to the
satisfaction of the trial court, that reasonable progress has
been made in correcting those conditions that led to the removal
of the minor children. With respect to the dispositional
portion of the court’s orders, we remand this matter to the
trial court with instruction that the court make further
findings of fact in accordance with N.C.G.S. § 7B-1110(a)
concerning the bond between respondent and each child in order
to determine whether termination of respondent’s parental rights
is in the best interest of the children.
Affirmed in part and remanded in part.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).