In re J.C.P.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA13-1253
NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

IN THE MATTER OF:

J.C.P., J.T.P. & I.L.P. Guilford County
Nos. 08 JT 691-92, 11 J 25

Appeal by respondent-parents from order entered 17 July

2013 by Judge H. Thomas Jarrell in Guilford County District

Court. Heard in the Court of Appeals 19 May 2014.

Mercedes O. Chut for petitioner-appellee Guilford County
Department of Social Services.

Hunt Law Group, P.C., by James A. Hunt, for respondent-
appellant father.

Assistant Appellate Defender J. Lee Gilliam for respondent-
appellant mother.

Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for guardian ad litem.

BRYANT, Judge.

Respondent-mother appeals from an order terminating her

parental rights as to J.C.P. (“Joseph”), J.T.P. (“Jacob”), and
 -2-
I.L.P. (“Ivey”).1 Respondent-father appeals from the order

terminating his parental rights to Ivey. The father of Joseph

and Jacob is not a party to this appeal. For the reasons stated

below, we affirm the order of the trial court.

The Guilford County Department of Social Services (“DSS”)

instituted a juvenile case involving respondent-mother and

juveniles Joseph and Jacob on 14 October 2008, by filing a

petition alleging the children and their older siblings, S.D.

(“Sophia”), A.D. (“Avery”), and R.D. (“Ryan”), were abused,

neglected and dependent juveniles. DSS obtained non-secure

custody of the children two days later and placed the children

in foster care. On 24 February 2009, the trial court entered an

adjudication and disposition order concluding that Sophia,

Avery, and Ryan were neglected juveniles,2 and that Joseph and

Jacob were neglected and dependent juveniles. The court

continued custody of all the juveniles with DSS, and granted

respondent-mother weekly supervised visitation with Joseph and

Jacob.

1
Pursuant to Rule 3.1(b) of our Rules of Appellate Procedure, we
use pseudonyms to protect the identity of the juveniles.
2
Respondent-mother’s parental rights to Sophia, Avery, and Ryan
were terminated in proceedings not involving Joseph, Jacob or
Ivey. See In re S.M.D., No. COA12-373, 2012 WL 5857972 (Nov.
20, 2012).
 -3-
During the pendency of the juvenile case involving Joseph

and Jacob, respondent-mother met respondent-father and conceived

Ivey. DSS obtained non-secure custody of Ivey the day after her

birth in February 2011, and shortly thereafter DSS filed a

juvenile petition alleging Ivey was neglected and dependent. On

14 November 2011, the trial court entered an adjudication order

concluding Ivey was a neglected and dependent juvenile. The

court entered a disposition order for Ivey on 17 April 2012,

which granted respondent-parents supervised visitation with Ivey

and ordered that her case be heard with that of Joseph and

Jacob. The court set the permanent plan for Ivey to be

reunification with respondent-father, but relieved DSS from the

obligation to make reasonable efforts to reunify Ivey with

respondent-mother. In a separate order entered 17 April 2012,

the trial court relieved DSS from the obligation to make

reasonable efforts to reunify Joseph and Jacob with respondent-

mother and their father, and set adoption as the permanent plan

for Joseph and Jacob. By order entered 13 December 2012, the

trial court changed the permanent plan for Ivey to adoption with

a concurrent plan of reunification with respondent-father.

DSS subsequently filed a petition to terminate respondents’

parental rights to Ivey and a separate petition to terminate
 -4-
respondent-mother’s parental rights to Joseph and Jacob. By

order entered 17 July 2013, the trial court terminated

respondent-mother’s parental rights to Joseph, Jacob, and Ivey

and terminated respondent-father’s parental rights to Ivey. The

court concluded that grounds existed to terminate respondent-

mother’s parental rights to Joseph, Jacob, and Ivey pursuant to

North Carolina General Statutes, section 7B-1111(a)(1),(2),(3)

and (9), and that grounds existed to terminate respondent-

father’s parental rights to Ivey pursuant to General Statutes,

section 7B-1111(a)(1) and (2). Respondents appeal.

____________________________

On appeal, (I) respondent-mother argues the trial court

erred by concluding grounds existed to terminate her parental

rights. Respondent-father (II) also contends that the trial

court erred by concluding grounds existed to terminate his

parental rights to Ivey and (III) additionally contends the

court abused its discretion in concluding it is in Ivey’s best

interest to terminate his parental rights.

This Court reviews orders in termination of parental rights

cases for “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.
 -5-
App. 118, 124, 323 S.E.2d 754, 758 (1984) (citation omitted).

“If the trial court’s findings of fact are supported by ample,

competent evidence, they are binding on appeal, even though

there may be evidence to the contrary.” In re S.C.R., 198 N.C.

App. 525, 531, 679 S.E.2d 905, 909 (2009) (citation and

quotation marks omitted). However, “[t]he trial court’s

conclusions of law are fully reviewable de novo by the appellate

court.” In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59

(2008) (citation and quotation marks omitted).

I

Respondent-mother argues that the trial court erred in

concluding grounds existed to terminate her parental rights

because she failed to make progress in correcting those

conditions that led to the removal of the juveniles. We

disagree.

A court may terminate parental rights upon 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.
Provided, however, that no parental rights
shall be terminated for the sole reason that
the parents are unable to care for the
juvenile on account of their poverty.
 -6-
N.C. Gen. Stat. § 7B-1111(a)(2) (2013). “A parent's

‘willfulness’ in leaving a child in foster care may be

established by evidence that the parents possessed the ability

to make reasonable progress, but were unwilling to make an

effort.” In re Baker, 158 N.C. App. 491, 494, 581 S.E.2d 144,

146 (2003) (citations omitted). “Even if a parent has made some

efforts to regain custody, a trial court may still find that he

or she willfully left the child in foster care under section 7B–

1111(a)(2).” In re S.F., 198 N.C. App. 611, 615, 682 S.E.2d

712, 716 (2009) (citation omitted).

Here, the trial court found that respondent-mother

willfully left Joseph, Jacob, and Ivey in placement outside of

the home for more than twelve months without showing to the

satisfaction of the court that reasonable progress had been made

in correcting those conditions which led to the removal of the

juveniles. Although “[Respondent-mother] has completed several

components of her case plan[,] she has not been able to

demonstrate through her behavior that she is capable of making

decisions that would not expose her children to further abuse.”

In support of this conclusion, we consider the trial court’s

unchallenged findings of fact illustrating a pattern of behavior

which exposes respondent-mother’s children to potential abuse.
 -7-
The trial court found that Joseph and Jacob were placed in

the custody of DSS and pursuant to a consent order entered 8

December 2008, were adjudicated neglected and dependent. Ivey

was also placed in the custody of petitioner and subsequently

adjudicated neglected and dependent on 3 October 2011. In

reviewing the adjudication orders disclosing the basis for the

petitions for non-secure custody, the trial court noted that

three of respondent-mother’s older children – Ryan, Sophia, and

Avery (to whom respondent-mother’s parental rights were

terminated) were abused, dependent, and neglected juveniles.

The trial court noted that respondent-mother’s relationship

with the father of juveniles Ryan, Sophia, and Avery – Raymond

M. – was abusive. Following that relationship, respondent-

mother entered into a romantic relationship with B.P.

Interviews with Ryan, Sophia, and Avery presented allegations

that B.P. sexually molested both Sophia and Avery and that

respondent-mother had been informed of this abuse but instructed

her daughters not to tell anyone. DSS members observed that

respondent-mother “continued to minimize the abuse, stating that

she found it hard to believe” and “denied having any knowledge

of the abuse with the exception of once when [Sophia] told her,

but she didn’t think anything of it.”
 -8-
In December 2006, respondent-mother gave birth to twins,

Joseph and Jacob. B.P. was listed as the father though it was

later determined he was not the biological father. In fact,

respondent-mother had remained in contact with the biological

father but chose to conceal his identity.

On 7 November 2008, respondent-mother entered into a

service agreement with DSS wherein she was required to comply

with and make progress in the following categories: emotional /

mental health, life skills, and basic needs; parenting skills;

family relationships; and visitation. On 16 January 2010,

respondent-mother’s counselor reported that during counseling

sessions, “[respondent-mother] was prepared to listen to each

child’s traumatic experiences perpetrated by the abusive male

who had lived in the home and ‘watched’ the juveniles as

[respondent-mother] worked outside the home.” The trial court

found that it was essential to the welfare and safety of the

children that respondent-mother be open and honest about her

dating relationships as respondent-mother had a propensity for

choosing abusive men.

In August 2010, the minor child Sophia reported that

respondent-mother had a boyfriend. Respondent-mother denied

that she was in a relationship. But, at the time of the denial,
 -9-
respondent-mother had been in a sexual relationship with a co-

worker, respondent-father, for three months and knew she was

pregnant with his child. Respondent-mother’s social worker

learned of the pregnancy when respondent-mother applied for

medical assistance and the eligibility worker notified DSS.

Respondent-mother acknowledged that she did not know respondent-

father very well. The trial court found that respondent-mother

was aware that respondent-father had a four-year-old child for

whom he provides no support because the mother refuses to accept

money from him and he was briefly incarcerated due to an assault

upon a commanding officer in the Mexican Army. However, towards

the end of the pregnancy, respondent-father was spending the

night with respondent-mother at her home. Respondent-mother

gave birth to Ivey in February 2011. At the time of the

termination hearing, respondent-mother was living at least part-

time with respondent-father at his home. In July 2011,

respondent-mother suffered a miscarriage. That she had been

pregnant was not disclosed to petitioner until respondent-mother

testified at the termination hearing.

The trial court made findings of fact that respondent-

mother had two sexual or romantic relationships that she did not

voluntarily disclose to DSS. “Any man that [respondent-mother]
 -10-
is involved with would be required to cooperate with [DSS] and

work with [respondent-mother] on her reunification plan. Her

failure to disclose indicates that she will continue to expose

her children to unsafe situations.” “[Respondent-mother]

continues to exhibit poor judgment by being dishonest [to] the

Court and the [DSS].” “[Respondent-mother’s] continued pattern

of dishonesty is evidence that although she has successfully

completed many programs as part of her case plan and attended

therapy there have been no internal changes and therefore she

has not corrected the conditions that led to her children’s

removal.”

Respondent-mother does not challenge the trial court’s

findings of fact. See In re A.R.H.B., 186 N.C. App. 211, 214,

651 S.E.2d 247, 251 (2007) (“If unchallenged on appeal, findings

of fact are deemed supported by competent evidence and are

binding upon this Court.” (citation omitted)). Therefore, we

hold that the trial court’s order contains sufficient findings

of fact to support its conclusion that despite respondent-

mother’s completion of several components of her case plan with

DSS, “she has not been able to demonstrate through her behavior

that she is capable of making decisions that would not expose

her children to further abuse.” Accordingly, we affirm the
 -11-
trial court’s conclusion that grounds exist to terminate

respondent-mother’s parental rights to Joseph, Jacob, and Ivey

as respondent-mother has “willfully left the juvenile[s] 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[s].” See N.C.G.S. § 7B-1111(a)(2). We do not address

respondent-mother’s arguments regarding the trial court’s

conclusion that grounds to terminate her parental rights also

existed under N.C.G.S. § 7B-1111(a)(1),(3) or (9). See In re

P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (holding

“where the trial court finds multiple grounds on which to base a

termination of parental rights, and an appellate court

determines there is at least one ground to support a conclusion

that parental rights should be terminated, it is unnecessary to

address the remaining grounds.” (citation and quotation marks

omitted)). Respondent-mother has not otherwise challenged the

trial court’s order terminating her parental rights to Joseph,

Jacob, and Ivey, and thus, we affirm the order as to respondent-

mother.

II
 -12-
Respondent-father also argues the court erred in concluding

grounds existed to terminate his parental rights based on

neglect and failure to make reasonable progress to correct the

conditions that led to the removal of the juvenile pursuant to

N.C.G.S. § 7B-1111(a)(1) and (2). We disagree.

Grounds exist to 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.G.S. § 7B-1111(a)(2). Again, “[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 (2001) (citation omitted).

Here, the trial court found that respondent-father

superficially complied with his case plan in that while he had

completed several components of the plan, he was not “able to

demonstrate through his behavior that he is capable of making

decisions that would not expose his child to further abuse.”

Respondent contends this finding is not supported by the

evidence, because he has fully complied with his case plan and
 -13-
his relationship with respondent-mother presents no safety

concern should Ivey be returned to his custody.

The ultimate issue that brought Ivey into DSS’s custody was

respondent-mother’s failure to protect her children. The trial

court found that respondent-mother had not shown that she had

made reasonable progress toward correcting the conditions that

led to the removal of Ivey, because she had not demonstrated

that she is capable of making decisions that would not expose

her children to further abuse and she had an ongoing pattern of

dishonesty toward both DSS and the court. Respondent-father

does not challenge these findings. See Koufman v. Koufman, 330

N.C. 93, 97, 408 S.E.2d 729, 731 (1991). The trial court

further found that respondent-father “has maintained throughout

the life of this case that he intends to remain in a romantic

live-in relationship with [respondent-mother] even if that means

he could not have his minor child [Ivey] in his care and

custody.” Respondent-father was repeatedly informed that so

long as he resided with respondent-mother, he could not be

considered a viable placement for Ivey due to respondent-

mother’s failure to make reasonable progress toward correcting

the conditions that led to the removal of Ivey, and yet he

continued to choose respondent-mother over his child.
 -14-
Respondent-father’s steadfast refusal to live apart from

respondent-mother demonstrates that he is still making decisions

that would potentially expose Ivey to future abuse and thus, has

not made reasonable progress to correct those conditions that

led to the removal of the juvenile. Therefore, we hold the

trial court’s conclusion that grounds exist to terminate

respondent-father’s parental rights to Ivey for failure to make

reasonable progress pursuant to N.C.G.S. § 7B-1111(a)(2) is

supported by its findings of fact. Accordingly, we overrule

respondent-father’s argument. See In re S.N., 180 N.C. App.

169, 636 S.E.2d 316 (2006) (affirming termination of parental

rights based on failure to make reasonable progress where the

father made some progress toward his case plan, but did nothing

to remedy the fact that he was maintaining a home with the

mother, which rendered him ineligible to receive custody of his

child due to the mother’s continuing drug abuse).

Because we hold the trial court did not err in concluding

grounds exist to terminate respondent-father’s parental rights

pursuant to N.C.G.S. § 7B-1111(a)(2), we do not address his

arguments regarding the trial court’s conclusion that grounds to

terminate his parental rights also existed under N.C.G.S. § 7B-
 -15-
1111(a)(1). In re P.L.P., 173 N.C. App. at 8, 618 S.E.2d at

246.

III

Lastly, respondent-father argues the trial court abused its

discretion in concluding it is in the best interest of Ivey to

terminate his parental rights. We disagree.

“After an adjudication that one or more grounds for

terminating a parent’s rights exist, the court shall determine

whether terminating the parent’s rights is in the juvenile’s

best interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). In making

its determination, the court shall consider and make written

findings about each of the following criteria, if relevant:

(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 the
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.
 -16-
Id. “We review the trial court’s decision to terminate parental

rights for abuse of discretion.” In re Anderson, 151 N.C. App.

94, 98, 564 S.E.2d 599, 602 (2002) (citation omitted).

Respondent concedes that the trial court made findings of

fact about each of the enumerated criteria but argues the

evidence does not support its finding regarding the bond between

him and Ivey. The court specifically found that “[t]he bond

between [Ivey] and [respondent-father] is fair. [Respondent-

father] visits with his child regularly but . . . does not

exhibit the role of a parent but rather of a playmate for the

minor child.” This finding is supported by the testimony of

Robert McEntire, a social worker with DSS.

Based on what I’ve observed, [Ivey] is and
has been comfortable being around
[respondent-father] for the most part. I
think she recognizes him. She’s acquainted
with his presence, but I do not see a strong
emotional bond. And [Ivey], to my knowledge,
has never had any trouble separating from
[respondent-father] when visits are over.

Additionally, Eric Tolbert, a community service technician for

DSS who supervised about 90 visitations between Ivey and

respondent-father, testified that while respondent-father does

well during the visits, respondent-father didn’t learn how to

bring Ivey under control when she’s uncooperative and “pretty

much let her run the show[,]” even after having supervised
 -17-
visits for over two years. Accordingly, we hold this finding of

fact is supported by clear, cogent and convincing evidence, and

overrule this argument. See In re Williamson, 91 N.C. App. 668,

674, 373 S.E.2d 317, 320 (1988) (holding that where a trial

court’s findings of fact “are supported by ample, competent

evidence, they are binding on appeal, even though there may be

evidence to the contrary”).

The trial court’s findings of fact regarding Ivey’s best

interest reflect that the court’s conclusion to terminate

respondent-father’s parental rights is a reasoned decision based

upon the statutory factors listed in section 7B-1110(a). We

hold the trial court did not abuse its discretion in determining

it would be in the best interest of Ivey to terminate

respondent-father’s parental rights.

For the foregoing reasons, we affirm the order terminating

the respondents’ parental rights to Joseph, Jacob and Ivey.

Affirmed.

Judges STEPHENS and DILLON concur.

Report per Rule 30(e).