{ "id": 4115382, "name": "IN THE MATTER OF: J.L.H.", "name_abbreviation": "In re J.L.H.", "decision_date": "2012-12-04", "docket_number": "No. COA12-452", "first_page": "52", "last_page": "60", "citations": [ { "type": "official", "cite": "224 N.C. App. 52" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "638 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637349 ], "year": 2006, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0236-01" ] }, { "cite": "180 N.C. App. 539", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11798267 ], "year": 1997, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "323 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526281 ], "year": 1984, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0118-01" ] } ], "analysis": { "cardinality": 715, "char_count": 19213, "ocr_confidence": 0.736, "pagerank": { "raw": 1.14239604845595e-07, "percentile": 0.57932972153975 }, "sha256": "57b26a7c1d98f90e32c77ab1d5f9aaac0c672da6d37327adc906f4d8d06b6b2c", "simhash": "1:eb6a414afc4e1f34", "word_count": 2990 }, "last_updated": "2023-07-14T22:14:41.206072+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BEASLEY and THIGPEN, concur." ], "parties": [ "IN THE MATTER OF: J.L.H." ], "opinions": [ { "text": "CALABRIA, Judge.\nRespondent-mother (\u201crespondent\u201d) appeals from the trial court\u2019s order terminating her parental rights to J.L.H. (\u201cJennifer\u201d). We affirm in part and remand for further findings in part.\nOn 13 January 2010, the Mecklenburg County Department of Social Services, Youth and Family Services (\u201cYFS\u201d) filed a juvenile petition alleging that Jennifer was a neglected and dependent juvenile. The petition included allegations of improper supervision, sexual abuse, domestic violence, and substance abuse. At that time, the trial court ordered YFS to assume custody of Jennifer for placement in foster care. On 17 February 2010, the trial court adjudicated Jennifer a neglected and dependent juvenile pursuant to a mediated agreement with respondent.\nIn the following months, the trial court conducted several review and permanency planning hearings. On 14 February 2011, the trial court entered a written order, pursuant to a hearing on 3 February 2011, directing YFS to file a termination of parental rights petition within 60 days. On 11 February 2011, YFS filed a petition to terminate respondent\u2019s parental rights on the grounds of neglect, willfully leaving Jennifer in foster care for more than twelve months without showing reasonable progress under the circumstances, and willfully failing to pay a reasonable portion of the cost Jennifer\u2019s care.\nOn 21 and 22 September 2011 and 21 and 22 November 2011, the trial court conducted the termination hearing. On 1 February 2012, the trial court entered an order terminating respondent\u2019s parental rights on the basis of neglect, willfully leaving Jennifer in foster care for more than twelve months without showing reasonable progress, and willfully failing to pay a reasonable portion of the cost of care of the children. Respondent appeals.\nII. Adjudication\nRespondent argues that the trial court erred in concluding that grounds existed to terminate her parental rights. We disagree.\n\u201cThe 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 turn, support the conelusions of law.\u201d In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984). \u201c[T]he trial court\u2019s findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.\u201d In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).\nPursuant to N.C. Gen. Stat. \u00a7 7B 1111(a)(2), a court may terminate parental rights when \u201c[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.\u201d N.C. Gen. Stat. \u00a7 7B 1111(a)(2) (2011). The willful leaving of the juvenile in foster care is \u201csomething less than willful abandonment\u201d and \u201cdoes not require a showing of fault by the parent.\u201d In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996)(citations omitted).\nRespondent argues, in part, that the trial court erred in concluding that termination was appropriate on this ground because she did everything she was told to do by petitioner. However, this Court has previously held that a finding of this ground may be made even when the parent has made some effort to regain custody of the child because the parent must also show reasonable and positive progress in correcting the conditions which led to the juvenile\u2019s removal. See In re Nolen, 117 N.C. App. 693, 699-700, 453 S.E.2d 220, 224-25 (1995).\nTo support its conclusion that respondent willfully left Jennifer in foster care for more than twelve months without making reasonable progress under the circumstances, the trial court made the following findings in the adjudication portion of the termination order:\n11. The respondent mother is still not participating in her own therapy. If the mother cannot address her own mental health needs, she cannot address [Jennifer\u2019s] traumatization. The mother has expressed the opinion during this Court\u2019s involvement as it relates to [Jennifer\u2019s] sexual abuse by her sibling,... that \u201cshe just needs to get over it\u201d! [Respondent] has not taken the steps necessary to address the issues which brought [Jennifer] into custody, and has not recognized the impact of [Jennifer\u2019s] sexual victimization.\n12. The respondent mother agreed that she would comply with therapy for herself and [Jennifer]. The respondent mother attended two therapy appointments with [Jennifer] in May 2011, attended no therapy appointments in June 2011, attended two therapy appointments in July 2011, attended no appointments in August 2011, attended one therapy appointment in September 2011, and has not returned since September 2011 to therapy.\n13. As a part of the respondent mother\u2019s family service agreement or case plan, [respondent] was ordered to complete domestic violence counseling, substance abuse treatment, parenting education, mental health treatment, and engage in therapy with [Jennifer] and her sibling.\n14. The respondent mother complied with elements of her domestic violence family service agreement obligation. [Respondent] completed the Women\u2019s Commission program in July 2010. [Respondent] completed parenting education in February 2011.\nRespondent specifically challenges findings 11, 12, and 14 as unsupported by the evidence. Since finding of fact 13 is unchallenged, it is presumed to be correct and supported by the evidence. See In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982).\nThe record provides competent evidence to support findings of fact 11 and 12. Jennifer\u2019s therapist, Denise Little (\u201cMs. Little\u201d), testified to respondent\u2019s numerous missed appointments and failure to participate in Jennifer\u2019s therapy. Ms. Little also testified that respondent\u2019s involvement was necessary to Jennifer\u2019s recovery and to respondent\u2019s understanding of the impact of sexual abuse on her child.\nYFS social worker assistant Leslie Simmons (\u201cMs. Simmons\u201d) testified that she observed inappropriate touching between Jennifer and her brother during visits and that respondent failed to stop this behavior. YFS senior social worker Lynda Peperak (\u201cMs. Peperak\u201d) testified about respondent\u2019s overall performance on her case plan goals and behavior throughout YFS\u2019s interaction with respondent. Ms. Peperak reported respondent\u2019s inappropriate comments that Jennifer \u201cshould just get over [her sexual abuse]\u201d and that \u201cevery child is touched inappropriately.\u201d Ms. Peperak also described respondent\u2019s participation in therapy, the many accommodations provided to respondent to encourage her to attend Jennifer\u2019s therapy, and respondent\u2019s apathetic attitude towards the lessons offered in domestic violence counseling, parenting classes, and therapy generally.\nFinally, psychologist Dr. Terri Watters (\u201cDr. Watters\u201d) testified regarding her psychological evaluations of respondent. The evaluations revealed respondent\u2019s narcissistic traits. The court accepted into evidence and considered the Parenting Capacity Evaluation (\u201cPCE\u201d) which Dr. Watters wrote. In her PCE, Dr. Watters expressed concern that respondent would seek out another violent relationship if she failed to address her own mental health needs. Thus, findings of fact 11 and 12 were supported by clear, cogent, and convincing evidence.\nAs to finding of fact 14, respondent takes issue with the portion of the finding which states that she \u201ccomplied with elements of her domestic violence service agreement obligation.\u201d Respondent contends that this finding implies that she did not comply with the totality of the agreement. Respondent argues that, under the agreement, she was required to obtain an assessment and follow through on all recommendations and that she did what she was told.\nRespondent is correct that her agreement required her to complete a domestic violence assessment and follow all treatment recommendations. Specifically, the agreement required her \u201cto participate in Domestic Violence treatment to learn about and engage in healthy relationships.\u201d (Emphasis added). However, Ms. Peperak testified that even though respondent had completed a twelve-week program at the Women\u2019s Commission, she had not implemented the skills she had learned there. For example, Ms. Peperak testified that respondent failed to walk away or contact law enforcement when respondent \u201cran into\u201d Jennifer\u2019s father. Based upon Ms. Peperak\u2019s testimony, we conclude finding of fact 14 is supported by clear, cogent and convincing evidence.\nThe trial court\u2019s findings demonstrate that, although respondent had participated in some services, her failure to participate with her own mental health treatment and her inconsistency in participating in Jennifer\u2019s therapy was not reasonable progress under the circumstances. Therefore, the trial court\u2019s findings, which were supported by competent evidence, supported its conclusion that a ground existed to terminate respondent\u2019s parental rights because respondent willfully left Jennifer in foster care for more than twelve months and failed to make reasonable progress to correct the conditions which led to Jennifer\u2019s removal.\nSince we have found that the trial court properly terminated respondent\u2019s parental rights on the basis of her willfully leaving Jennifer in foster care for more than twelve months without showing reasonable progress, it is unnecessary to address her arguments on the remaining grounds found by the trial court. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426-27 (2003).\nIII. Best Interests\nRespondent argues that the trial court erred in concluding it was in Jennifer\u2019s best interests to terminate her parental rights. Specifically, respondent contends that the trial court failed to make the necessary findings of fact required by N.C. Gen. Stat. \u00a7 7B-1110. We agree.\nThe determination of whether termination is in the best interests of the minor child is governed by N.C. Gen. Stat. \u00a7 7B-1110.\nIn each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:\n(1) The age of the juvenile.\n(2) The likelihood of adoption of the juvenile.\n(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.\n(4) The bond between the juvenile and the parent.\n(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.\n(6) Any relevant consideration.\nN.C. Gen. Stat. \u00a7 7B-1110(a) (2011). \u201cWe review the trial court\u2019s decision to terminate parental rights for abuse of discretion.\u201d In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). The trial court is \u201csubject to reversal for abuse of discretion only upon a showing . . . that the challenged actions are manifestly unsupported by reason.\u201d Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).\nIn the instant case, the trial court made the following findings regarding the best interests of Jennifer:\nThe best interests of [Jennifer] would be served by the termination of parental rights of both respondent parents with respect to this juvenile.\n[Jennifer] is in a placement and is being cared for appropriately.\n[Jennifer] is only seven-years-old [sic] and is capable of being adopted. [Jennifer\u2019s] therapeutic needs are being met and she is progressing well and thriving in her current placement.\n[Jennifer] is not in a foster/adopt placement, but the Court has no doubt she will be adopted.\nHowever, the trial court made no findings which reflected consideration of N.C. Gen. Stat. \u00a7 7B-1110(a)(3), \u201cwhether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile,\u201d or of N.C. Gen. Stat. \u00a7 7B-1110(a)(4), \u201cthe bond between the juvenile and the parent.\u201d Although the trial court concludes that Jennifer likely will be adopted, it fails to specifically state that termination of respondent\u2019s parental rights is necessary to achieve that permanent plan. Furthermore, there was testimony at the hearing and evidence in the record relevant to the bond between respondent and Jennifer. Dr. Watters testified that there was \u201cno doubt in [her] mind that there\u2019s a bond between\u201d Jennifer and respondent. She also testified that Jennifer respects respondent, and that Jennifer and respondent seem to enjoy their time together. Ms. Simmons also testified that she believed there was a bond between Jennifer and respondent.\nHowever, in therapy, Jennifer stated that she misbehaved at school and in foster care, because she was afraid that she would be sent back to her mother if she was good. In addition, Jennifer\u2019s incidents of poor behaviors increased after visits with respondent. Finally, Jennifer also stated that she did not trust her mother to keep her safe from further sexual abuse. Thus, the bond between Jennifer and respondent was relevant to the trial court\u2019s best interests determination. Nevertheless, while the trial court was required to consider the statutory factors in N.C. Gen. Stat. \u00a7 7B-1110(a) and \u201cmake written findings regarding [those] that are relevant,\u201d it failed to do so.\nAlthough petitioner acknowledges that the trial court did not make explicit findings on all of the relevant statutory factors, it still contends that the trial court\u2019s order is sufficient under this Court\u2019s decision in In re S.C.H., 199 N.C. App. 658, 682 S.E.2d 469 (2009). In S.C.H., the Court held that, \u201c[although the trial court may have not made a specific finding addressing N.C. Gen. Stat. \u00a7 7B-1110(a)(4),\u201d there was no abuse of discretion so long as \u201cit [wa]s apparent that the trial court did consider\u201d that factor. Id. at 668, 682 S.E.2d at 475. Respondent argues that there is also evidence in the instant case that the trial court considered all relevant factors in N.C. Gen. Stat. \u00a7 7B-1110.\nHowever, at the time S. C.H. was decided, a different version of N.C. Gen. Stat. \u00a7 7B-1110 was in effect. This previous version of the statute stated, in relevant part:\nAfter an adjudication that one or more grounds for terminating a parent\u2019s rights exist, the court shall determine whether terminating the parent's rights is in the juvenile\u2019s best interest. In making this determination, the court shall consider the following:\nN.C. Gen. Stat. \u00a7 7B-1110(a) (2009)(emphasis added).\nIn 2011, N.C. Gen. Stat. \u00a7 7B-1110(a) was amended for all juvenile actions \u201cfiled or pending on or after\u201d 1 October 2011. See 2011 N.C. Sess. Laws 295. As noted above, the current version of the statute directs the trial court to \u201cconsider the following criteria and make written findings regarding the following that are relevant.\u201d N.C. Gen. Stat. \u00a7 7B-1110(a)(2011) (emphasis added). Therefore, due to this change in statutory language, S.C.H. and other cases similar to it are no longer applicable to this Court\u2019s evaluation of a trial court\u2019s best interests determination under N.C. Gen. Stat. \u00a7 7B-1110. The amended statute now explicitly requires the trial court to make written findings of fact on all relevant factors from N.C. Gen. Stat. \u00a7 7B-1110(a) when it determines whether termination is in the juvenile\u2019s best interests.\nIn the instant case, the issues of whether termination will aid in the accomplishment of the permanent plan and the quality of the bond between Jennifer and respondent were raised during the termination hearing, but the trial court did not make any written findings regarding these factors. As a result, the trial court\u2019s order does not comply with the requirements of N.C. Gen. Stat. \u00a7 7B-1110 (2011). Since the record contains evidence from which the court could make findings as to this factor, we remand for entry of appropriate findings pursuant to N.C. Gen. Stat. \u00a7 7B-1110(a). See In re E.M., 202 N.C. App. 761, 765, 692 S.E.2d 629, 631 (2010).\nIV. Conclusion\nThe trial court correctly concluded that grounds existed to terminate respondent\u2019s parental rights on the ground of her willfully leaving Jennifer in foster care for more than twelve months without showing reasonable progress. Consequently, we affirm the adjudication portion of the trial court\u2019s order. However, the trial court failed to make findings on relevant factors included in N.C. Gen. Stat. \u00a7 7B-1110(a) when determining whether termination of respondent\u2019s parental rights was in Jennifer\u2019s best interests. Accordingly, we remand the disposition portion of the trial court\u2019s order for further findings as required by N.C. Gen. Stat. \u00a7 7B-1110(a).\nAffirmed in part and remanded in part.\nJudges BEASLEY and THIGPEN, concur.\n. A pseudonym is used to protect the juvenile\u2019s privacy and for ease of reading.\n. The trial court\u2019s order also terminated the parental rights of Jennifer\u2019s father. However, the father neither attended the termination hearing nor appealed the trial court\u2019s order.\n. We note that respondent challenges other findings of fact made by the trial court in its order terminating her parental rights; however, we need not address the additional arguments on the trial court\u2019s other findings of fact because they are not relevant to this ground for termination. Thus, any error in those findings would not constitute reversible error. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Twyla Hollingsworth-Richardson, for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.", "M. Carridy Bender, for Guardian ad Litem.", "Rebekah W. Davis, for respondent-appellant mother." ], "corrections": "", "head_matter": "IN THE MATTER OF: J.L.H.\nNo. COA12-452\nFiled 4 December 2012\n1. Termination of Parental Rights \u2014 willfully leaving child in foster care \u2014 lack of reasonable progress\nThe trial court properly terminated respondent\u2019s parental rights on the basis of willfully leaving her child in foster care for more than twelve months without showing reasonable progress. The trial court\u2019s findings demonstrated that, although respondent had participated in some services, her failure to participate with her own mental health treatment and her inconsistency in participating in the child\u2019s therapy was not reasonable progress under the circumstances.\n2. Termination of Parental Rights \u2014 best interests of child\u2014 written findings required\nA termination of parental rights order was remanded for further findings concerning the best interests of the child where the trial court did not make the written findings required by N.C.G.S. \u00a7 7B-1110 (2011). As amended, the statute explicitly requires written findings and the prior cases approving evident consideration of the factors without findings are no longer relevant. In this case the issues of whether termination would aid in the accomplishment of the permanent plan and the quality of the bond between the child and respondent were raised during the termination hearing, but the trial court did not make written findings.\nAppeal by respondent-mother from order entered 1 February 2012 by Judge Kimberly Best-Staton in Mecklenburg County District Court. Heard in the Court of Appeals 23 October 2012.\nTwyla Hollingsworth-Richardson, for petitioner-appellee Mecklenburg County Department of Social Services, Youth and Family Services.\nM. Carridy Bender, for Guardian ad Litem.\nRebekah W. Davis, for respondent-appellant mother." }, "file_name": "0052-01", "first_page_order": 62, "last_page_order": 70 }