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NO. COA10-575 / 23rd JUDICIAL DISTRICTNORTH CAROLINA COURT OF APPEALS
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In the matter of )
)
J.W.S. )
) / From WilkesCounty
No. 07 JT 144
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RESPONDENT(Mother)-APPELLANT’S BRIEF
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19842.2-507879 v1
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INDEX
TABLE OF CASES AND AUTHORITIES...... ii
ISSUES PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE FACTS...... 3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 5
STATEMENT OF STANDARD OF REVIEW...... 5
ARGUMENT...... 6
I.THE TRIAL COURT ERRED IN ADJUDICATING
NEGLECT AS A GROUND TO TERMINATE
RESPONDENT-MOTHER’S PARENTAL RIGHTS...... 6
II.THE TRIAL COURT ERRED IN ADJUDICATING
A FAILURE TO MAKE REASONABLE PROGRESS
UNDER THE CIRCUMSTANCES AS A GROUND TO
TERMINATE PARENTAL RIGHTS...... 9
III.THE TRIAL COURT ERRED IN ADJUDICATING
A FAILURE TO PAY A REASONABLE PORTION
OF THE COST OF CARE AS A GROUND FOR
TERMINATION OF PARENTAL RIGHTS...... 12
IV.THE TRIAL COURT ABUSED ITS DISCRETION
IN TERMINATING RESPONDENT-MOTHER’S
PARENTAL RIGHTS...... 14
CONCLUSION...... 16
CERTIFICATE OF SERVICE...... 17
TABLE OF CASES AND AUTHORITIES
Cases
In re Anderson,151 N.C. App. 94,
564 S.E.2d 599 (2002)...... 9-10, 14-15
In re Ballard, 63 N.C. App. 580,
306 S.E.2d 150 (1983)...... 13
Bost v. Van Nortwick, 117 N.C. App. 1,
449 S.E.2d 911 (1994)...... 14, 15
In re B.S.D.S., 163 N.C. App. 540,
594 S.E.2d 89 (2004)...... 10-11
In re Clark, 303 N.C. 592,
281 S.E.2d 47 (1981)...... 13
In re C.M., 183 N.C. App. 207,
644 S.E.2d 588 (2007)...... 7
In re D.L., 166 N.C. App. 574,
603 S.E.2d 376 (2004)...... 15
In re Garner, 75 N.C. App. 137,
330 S.E.2d 33 (1985)...... 13
In re J.G.B., 177 N.C. App. 375,
628 S.E.2d 450 (2006)...... 6, 7
In re J.J., 180 N.C. App. 344,
637 S.E.2d 258 (2006)...... 5
In re Ledbetter, 158 N.C. App. 281,
580 S.E.2d 392 (2003)...... 15
In re Locklear, 151 N.C. App. 573,
566 S.E.2d 165 (2002)...... 9
In re Matherly,149 N.C. App. 452,
562 S.E.2d 15 (2002)...... 10
In re McElmore, 139 N.C. App. 426,
533 S.E.2d 508 (2000)...... 10
In re M.R.D.C., 166 N.C. App. 693,
603 S.E.2d 890 (2004)...... 15
In the Matter of Oghenekevebe,
123 N.C. App. 434,
473 S.E.2d 393 (1996)...... 11
In re Pierce, 146 N.C. App. 641,
554 S.E.2d 25 (2001), aff’d,
356 N.C. 68, 565 S.E.2d 81 (2002)...... 6-7
Phillips v. Choplin, 65 N.C. App. 506,
309 S.E.2d 716 (1983)...... 5
In re Reyes, 136 N.C. App. 812,
526 S.E.2d 499 (2000)...... 7
In re Shepard, 162 N.C. App. 215,
591 S.E.2d 1 (2004)...... 5
In re S.N., 194 N.C. App. 142,
669 S.E.2d 55 (2008)...... 5
In re T.D.P., 164 N.C. App. 287,
595 S.E.2d 735 (2004)...... 10
In re Tyson, 76 N.C. App. 411,
333 S.E.2d 554 (1985)...... 14
In re Young, 346 N.C. 244,
485 S.E.2d 612 (1997)...... 6
Statutes
N.C. Gen. Stat. § 1A-1, Rule 52 (2001)...... 15
N.C. Gen. Stat. § 7A-27(c) (2009)...... 5
N.C. Gen. Stat. § 7B-101(15)...... 6
N.C. Gen. Stat. § 7B-300 (2009)...... 10
N.C. Gen. Stat. § 7B-1001(a)(6) (2009)...... 5
N.C. Gen. Stat. § 7B-1110...... 15
N.C. Gen. Stat. § 7B-1111(a)(1) (2009)...... 6
N.C. Gen. Stat. § 7B-1111(a)(2)(2009)...... 9, 12
N.C. Gen. Stat. § 7B-1111(a)(3) (2009)...12-13, 14
22472.2-630023 v1
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NO. COA10-575 / 23rd JUDICIAL DISTRICTNORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * * * * * * * * * *
In the matter of )
)
J.W.S. )
) / From WilkesCounty
No. 07 JT 144
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ISSUES PRESENTED
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I.WHETHER THE TRIAL COURT ERRED IN ADJUDICATING NEGLECT AS A GROUND TO TERMINATE PARENTAL RIGHTS.
II.WHETHER THE TRIAL COURT ERRED IN AJUDICATING A FAILURE TO MAKE REASONABLE PROGRESS UNDER THE CIRCUMSTANCES AS A GROUND TO TERMINATE PARENTAL RIGHTS.
III.WHETHER THE TRIAL COURT ERRED IN ADJUDICATING A FAILURE TO PAY A REASONABLE PORTION OF THE COST OF CARE AS A GROUND FOR TERMINATION OF PARENTAL RIGHTS.
IV.WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING RESPONDENT-MOTHER’S PARENTAL RIGHTS.
STATEMENT OF THE CASE
This matter was instituted on 7 September 2007 by the filing of a Petition on behalf of Wilkes County DSS (DSS). (R. at 7). On 1 November 2007, the trial court entered an order which adjudicated the juvenile neglected based on “the lack of parenting skills exhibited by the parents.” (R. at 42, 44). On 25 November 2008, the trial court entered an order relieving DSS of making reasonable efforts to reunify the juvenile with his parents and setting adoption of the juvenile as the permanent plan. (R. at 185).
On 13 January 2009, DSS filed a Petition to Terminate Parental Rights alleging grounds existed to terminate parental rights on grounds: (1) the juvenile remained a neglected juvenile; (2) the juvenile had been in custody of DSS and placed outside the home for over 12 months without the parents showing reasonable progress under the circumstances; (3) the parents had willfully failed to pay child support; and (4) the juvenile was a dependent juvenile. (R. at 211). Hearings of the Termination of Parental Rights Petition began on 27 October 2009 and resumed on 26 January 2010. (R. at 249). On 23 February 2010, the trial court entered its order finding grounds to terminate both parent’s parental rights on grounds of neglect, failure to make reasonable progress under the circumstances, and willful failure to pay child support. (R. at 249-255). The trial court ordered both parents’ rights terminated. (R. at 255). Respondent-Mother filed Notice of Appeal on 25 February 2010. (R. at 256) Respondent-Father filed Notice of Appeal on 17 March 2010 (R. at 263).
STATEMENT OF THE FACTS
J.W.S. was taken into custody by DSS from the hospital where he was born when he was just one (1) day old in September 2007. (R. at 43). DSS removed the child because of Respondent-Mother’s inability to care for a prior child, which was placed in the custody of that child’s paternal grandparents and concerns about domestic violence in the home. (R. at 43). J.W.S. was adjudicated to be a neglected juvenile on 1 November 2007. (R. at 42). At this stage, however, the trial court found there had been improvement by both Respondent-Parents and they were “learning skills which enable them to better deal with their differences and their anger.” (R. at 43). The trial court noted the parents had been very cooperative with DSS and were working with DSS to improve their parenting skills. (R. at 43). DSS was, at that time, also providing intensive in-home services to the parents. (R. at 43).
It was undisputed by the parties between the removal of J.W.S. in September 2007 and April 2008, both parents were making good progress in correcting the conditions which led to the removal of J.W.S. (R. at 252). Indeed, in February 2008, the trial court permitted overnight visits with the parents. (R. at 98, 101). The parents were also ordered to undergo psychological evaluations. (R. at 100-101).
Respondent-Mother’s 17 April 2008 psychological evaluation demonstrated she had an I.Q. of 77, which is in the low borderline range of intellectual ability. (R. at 126-27). The report noted a prior IQ test had resulted in a score of 71. (R. at 125-27). Also in April 2008, the in-home visitation was stopped based on reports of an incident which occurred during an overnight visitation in which Respondent-Father became violent towards Respondent-Mother. (R. at 145-46).
By November 2008, DSS sought and obtained a review order which removed DSS’s obligation to make reasonable efforts towards reunification of J.W.S. with his parents and making the adoption the permanent plan. (R. at 192). In January 2009, DSS filed a Petition to Terminate Parental Rights as to both parents. (R. at 211). The hearing on Termination of Parental Rights began on 27 October 2009, at which the Court heard part of DSS’s adjudication evidence. (T. at 1, 108). The Hearing did not reconvene until 26 January 2010, three months later. (R. at 108). On 23 February 2010, the trial court entered its order finding grounds to terminate both parents’ parental rights on grounds of neglect, failure to make reasonable progress under the circumstances, and willful failure to pay child support. (R. at 249-255). The trial court ordered both parents’ rights terminated. (R. at 255).
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Respondent’s grounds for appellate review of the trial court’s orders are pursuant to N.C. Gen. Stat. §§ 7A-27(c) (2009) and 7B-1001(a)(6) (2009).
STATEMENT OF STANDARD OF REVIEW
Appellate review of the trial court’s order involves a determination of whether the trial court’s findings of fact are supported by clear, cogent, and convincing evidence, whether the findings of fact support the conclusions of law, and whether the conclusions support the trial court’s decree. In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 5-6 (2004); Phillips v. Choplin, 65 N.C. App. 506, 309 S.E.2d 716 (1983). A trial court’s conclusions of law are reviewable de novo. In re J.J., 180 N.C. App. 344, 346, 637 S.E.2d 258, 260 (2006).
“Once the trial court has found a ground for termination, the court then considers the best interests of the child in making its decision on whether to terminate parental rights.” In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008). The determination of whether it is in the best interests of the juvenile to terminate parental rights is reviewed under an abuse of discretion standard. Id.
ARGUMENT
I.THE TRIAL COURT ERRED IN ADJUDICATING NEGLECTAS A GROUND TO TERMINATE RESPONDENT-MOTHER’S PARENTAL RIGHTS.
The trial court first concluded a ground existed to terminate Respondent-Mother’s parental rights under N.C. Gen. Stat. § 7B-1111(a)(1) based on the trial court’s determination Respondent-Mother neglected the juvenile. A neglected juvenile is defined as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile’s welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15). “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted).
However, “[w]here . . . ‘a child has not been in the custody of a parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect.’” In re J.G.B., 177 N.C. App. 375, 628 S.E.2d 450 (2006) (quoting In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001), aff’d, 356 N.C. 68, 565 S.E.2d 81 (2002)). When a child has not been in a parent’s custody for a significant period of time prior to the termination hearing, neglect cannot be established without evidence of respondent’s prior neglect and likely repetition of neglect. Id. Thus, where “there is no evidence of neglect at the time of the termination proceeding ... parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.” In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted). “In order to adjudicate a child to be neglected, the failure to provide proper care, supervision, or discipline must result in some type of physical, mental, or emotional impairment or a substantial risk of such impairment.” In re C.M., 183 N.C. App. 207, 210, 644 S.E.2d 588, 592 (2007).
In this case, J.W.S. had been removed from his parents in September 2007 at the hospital when he was just 1 day old. He was adjudicated to be neglected on 1 November 2007. (R. at 42). The hearing as to adjudication of grounds to terminate parental rights was held over two days beginning on 27 October 2009 and not continuing until 26 January 2010. (R. at 249). The juvenile had been removed from the home based on the removal of an older child due to a lack of parenting skills.
While the trial court found two instances of domestic abuse by Respondent-Father involving alcohol had occurred following the adjudication of neglect. (R. at 252). However, these incidents had occurred in April and May 2008 - almost a year and a half before the hearing in this case started in October 2009, and a year and 8 months before the hearing resumed and the trial court made any findings in January 2010. There was no evidence or finding of any other incidents at any point in time between these 2008 incidents and the 2009-2010 hearing. While the juvenile was allegedly present during at least one of these instances, there is also no finding as to what actual impact if any this (or these) incidents had on the juvenile or the continued risk thereof over a year and a half later.
Moreover, as to the parents’ parenting skills, it was apparent these indigent parents, who had judicially been determined to have mental limitations, needed services to assist them in learning to be better parents. In November 2008, DSS sought and obtained an order relieving it of any further obligation to provide efforts towards reunification of the juvenile with his parents. Following that order, the parents were not provided with any further services by DSS. Thus, for almost a year prior to the beginning of the termination of parental rights hearing, DSS refused to provide these indigent parents with the services they needed to learn to be better parents. Consequently, given the remoteness in time of the two incidents of alleged domestic violence and the lack of any support services provided to the parents between November 2008 and October 2009 - January 2010, the trial court’s findings do not support its conclusion neglect existed as a ground for termination of parental rights.
II.THE TRIAL COURT ERRED IN AJUDICATING A FAILURE TO MAKE REASONABLE PROGRESS UNDER THE CIRCUMSTANCES AS A GROUND TO TERMINATE PARENTAL RIGHTS.
N.C. Gen. Stat. § 7B-1111(a)(2)(2009) provides a ground exists to terminate parental rights where a trial court finds a parent has “willfully left the juvenile in foster care or placement outside the home for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions that led to the removal of the juvenile.”
A trial court must make findings about the conditions the parent failed to meet and must also make specific findings the parent has not addressed the conditions that led to a child’s removal. In re Locklear, 151 N.C. App. 573, 566 S.E.2d 165 (2002). A trial court’s failure to address the parent’s willfulness, whether his or her progress was reasonable, and the parent’s circumstances necessitates reversal. SeeIn re Anderson,151 N.C. App. 94, 564 S.E.2d 599 (2002) (evidence not sufficient to show willful failure to correct conditions that led to removal where trial court’s finding did not show willfulness or lack of reasonable progress under the circumstances);In re Matherly,149 N.C. App. 452, 562 S.E.2d 15 (2002)(remand necessary where trial court failed to make specific findings as to willfulness for child support ground and ground for failure to make reasonable progress). “The word willful encompasses more than a mere intention, but also purpose and deliberation.” In re T.D.P., 164 N.C. App. 287, 296, 595 S.E.2d 735, 741 (2004) (citing In re McElmore, 139 N.C. App. 426, 533 S.E.2d 508 (2000)). DSS has a statutory duty under Chapter 7B as N.C. Gen. Stat. §7B-300 tasks Protective Services with providing services:
...Protective services shall include the investigation and screening of complaints, casework, or other counseling services to parents, guardians, or other caretakers and the court to prevent the parents, guardians, or other caretakers and the court to prevent abuse or neglect, to improve the quality of child care, to be more adequate parents, guardians, or caretakers, and to preserve and stabilize family life.
N.C. Gen. Stat. § 7B-300 (2009).
“Willfulness may be found where a parent has made some attempt to regain custody of the child but has failed to exhibit ‘reasonable progress or a positive response toward the diligent efforts of DSS.’” In re B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004) (quoting In the Matter of Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996)). Thus, inherent in a parent’s willfulness as to making progress is whether DSS has made diligent efforts to assist the parent meet those goals.
In this case, the psychological evaluations obtained by DSS demonstrated Respondent-Mother had an IQ score of 77 and was functioning in the low Borderline range of intelligence, and an earlier evaluation indicated Respondent-Mother was in the IQ range for mild mental retardation. (R. at 126). Despite acknowledging this evaluation, (R. at 253), the trial court failed to take any consideration of this evaluation into its determination as to the ability of Respondent-Mother to “willfully” fail to take reasonable steps independently and under her circumstances in failing to make progress towards correcting the conditions which led to the removal of J.W.S. This psychological evaluation is important as DSS was relieved from providing any further services to the parents in November 2008, almost a year prior to the beginning of the termination hearing in this case. Indeed, the trial court’s own findings of fact show the parents had each made ongoing attempts to obtain and maintain employment, despite their limitations, and had maintained housing. Moreover, there had not been any report of domestic violence in the 20 months prior to the trial court’s adjudication of grounds to terminate at the January 2010 hearing.
Furthermore, nowhere in the trial court’s findings of fact does the court make the necessary finding the alleged failure to make progress was willful. Specifically, the trial court found until April 2008, the parents had made relatively good progress in correcting the issues which led to the juvenile’s removal. The court found after the April 2008 incident, however, no progress had been made. (R. at 252). The trial court however, failed to consider whether such failure to make progress was willful in either its findings of fact or conclusions of law. Consequently, the trial court’s determination a ground existed to terminate Respondent-Mother’s parental rights section 7B-1111(a)(2) is not supported by its findings of fact.
III.THE TRIAL COURT ERRED IN ADJUDICATING A FAILURE TO PAY A REASONABLE PORTION OF THE COST OF CARE AS A GROUND FOR TERMINATION OF PARENTAL RIGHTS.
N.C. Gen. Stat. § 7B-1111(a)(3) provides a ground for termination where a “juvenile has been placed in a county department of social services, a licensed foster home, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.” N.C. Gen. Stat. § 7B-1111(a)(3) (2009). When a petitioner seeks to terminate parental rights, based on its assertion that the Respondent-parent failed to pay a reasonable portion for the cost of the child’s care, it bears the burden of proving, clearly, cogently, and convincingly, that the Respondent had an ability to pay some amount greater than zero. In re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981) (Parent must pay an amount which is “just, fair, and equitable based on the parent’s ability or means to pay”). “A finding that a parent has ability to pay support is essential to termination for nonsupport on this ground.” In re Ballard, 63 N.C. App. 580, 306 S.E.2d 150 (1983). The trial court is required to make “a specific finding that respondent was able to pay some amount greater than zero during the relevant time period.” In re Garner, 75 N.C. App. 137, 141, 330 S.E.2d 33, 36 (1985).
The Petition to Terminate Parental Rights in this case was filed on 19 January 2009. Thus, the relevant time frame is between July 2008 and January 2009. The trial court, however, made no specific finding regarding either parent’s ability to pay or their failure to do so during this critical time period. Instead, the trial court made the general finding “each of the parents has been gainfully employed throughout the time Justin has been in foster care.” (R. at 253). The trial court made no findings as to what the parents’ income actually was and made no finding as to what of that income was reasonably available to pay child support. Instead, the court simply made the conclusory statement the parents had an ability to provide support for the child and such failure to provide support was willful. However, the court failed to undertake the critical analysis of the parent’s income and ability to pay during the six months prior to the filing of the petition in this case and whether the failure to provide support during this period was willful. Consequently, the trial court erred in concluding a ground existed to terminate Respondent-Mother’s parental rights under N.C. Gen. Stat. § 7B-1111(a)(3).
IV.THE TRIAL COURT ABUSED ITS DISCRETION IN TERMINATING RESPONDENT-MOTHER’S PARENTAL RIGHTS.
“‘Upon a finding that grounds exist to authorize termination, the trial court is never required to terminate parental rights under any circumstances, but is merely given the discretion to do so.’” Bost v. Van Nortwick, 117 N.C. App. 1, 7, 449 S.E.2d 911, 914 (1994) (quoting In re Tyson, 76 N.C. App. 411, 419, 333 S.E.2d 554, 559 (1985)). In this case, at disposition, DSS presented no evidence and the GAL merely relied on its report, which the trial court simply incorporated in its findings of fact.