Opinion
No. 07-161.
Filed July 17, 2007.
Wilkes County Nos. 04 J 105-107.
Appeal by respondents from orders entered 16 November 2006 by Judge David V. Byrd in Wilkes County District Court. Heard in the Court of Appeals 11 June 2007.
Paul W. Freeman, Jr., for petitioner-appellee, Wilkes County Department of Social Services. Martin H. Brinkley, for Guardian Ad Litem Program. Lisa Skinner Lefler, for respondent-mother. Sofie W. Hosford, for respondent-father.
Randi S. ("respondent-mother") appeals from orders of the trial court terminating her parental rights to B.D.H., J.L.S., and R.L.S. ("the minor children"). Scotty S. ("respondent-father") (collectively "respondents") appeals from an order of the trial court terminating his parental rights to R.L.S. We affirm.
Respondents are the biological parents of the minor child, R.L.S. Respondent-mother is the biological mother of the minor children B.D.H. and J.L.S. Jeffrey H. is the biological father of B.D.H. and J.L.S., and is not a party to this appeal. On 15 July 2004, the Wilkes County Department of Social Services ("DSS") filed juvenile petitions alleging the minor children were neglected. The petition alleged that on 14 July 2004, a DMV officer found J.L.S. wandering on a public street without adult supervision, dirty and wearing only a diaper. The child was returned to the respondents at their residence. The next day, a social worker visited respondents' home and found the minor children in the home with respondent-father asleep on the couch. The social worker attempted to awaken respondent-father but failed. Respondents' home was filthy, cluttered, and had no running water. The minor children had not been bathed in several days. The social worker also reported that the toilets were filled with feces, the front door was nailed shut, and trash bags were open and overflowing. The family had been involved in Case Management Services since 13 November 2003 after respondent-mother's probation officer found the minor children alone in the home with no adult supervision. Also, respondent-mother was found guilty of misdemeanor child abuse on 5 November 2003. The children were adjudicated neglected on 9 September 2004 and were placed in the custody of DSS. Respondents were ordered to execute and successfully complete a family service case plan as requested by DSS.
On 9 February 2006, DSS filed petitions to terminate respondents' parental rights on the grounds of neglect, failure to make reasonable progress, and failure to pay a portion of the reasonable cost of care. On 17 November 2006, the trial court terminated parental rights of the respondents and Jeffrey H. on the grounds of neglect and failure to make reasonable progress. From the orders terminating their parental rights, respondents appeal. Jeffrey H. did not file notice of appeal.
Termination of parental rights involves a two-step process under North Carolina law. First, a court must determine, based on clear, cogent and convincing evidence, at least one statutory ground under N.C. Gen. Stat. §§ 7B-1111 exists, and the burden of proof is on the petitioner. Once one or more statutory grounds for termination is established, the trial court enters the dispositional phase where "the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise." In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
I. Delay in Entry of Judgment
Initially, respondent-father contends the trial court's delay in entering both the adjudicatory and dispositional order prejudiced both him and R.L.S. We disagree.
North Carolina law requires both the adjudicatory and dispositional orders "be reduced to writing, signed and entered no later than thirty days following the completion of the termination of parental rights hearing." N.C. Gen. Stat. §§ 7B-1109(e); N.C. Gen. Stat. §§ 7B-1110(a). However, "a trial court's violation of statutory time limits in a juvenile case is not reversible error per se . . . [but] the complaining party must appropriately articulate the prejudice arising from the delay in order to justify reversal." In re S.N.H. L.J.H., 177 N.C. App. 82, 86, 627 S.E.2d 510, 513 (2006). Respondent-father argues he was prejudiced because he could not appeal the termination order until it was entered by the court, and he could not exercise visitation with his daughter.
We find respondent-father's first contention of prejudice unpersuasive. In a strikingly similar case, we held there was no prejudice in a delay of similar length to the respondent's right of appeal because he was incarcerated at the time of the termination order and was still incarcerated at the time the appeal was filed. In re S.B.M., 173 N.C. App. 634, 635-36, 619 S.E.2d 583, 585 (2005). Also, in S.B.M., the respondent-father "failed to keep appointments concerning the child," failed to complete court-ordered treatment, and his last contact with the child was almost a year before he was incarcerated. Id. at 635, 619 S.E.2d at 584. In our case, respondent-father failed to complete substance abuse classes, made only two of seven scheduled visits with the child, and his last contact with R.L.S. was in December of 2005 — eight months before the hearing. Although respondent-father was incarcerated during that time, he presented no evidence that he made any phone calls to, sent any letters to, or had any other contact with his daughter until April 2006. Accordingly, respondent-father has not shown that he was prejudiced by the trial court's delay in entering the adjudication and disposition orders.
II. Lack of Complete Transcript
Additionally, respondent-father contends the lack of a complete transcript of the termination hearing prejudiced him in that it deprived him of meaningful appellate review, which he contends should result in a new trial. We disagree.
Pursuant to N.C. Gen. Stat. §§ 7B-806, all "adjudicatory and dispositional [termination] hearings shall be recorded by stenographic notes or by electronic or mechanical means." N.C.G.S. §§ 7B-806 (2001). In order to prevail on an assignment of error under the statute, a party must also show "the failure to record the evidence resulted in prejudice to that party." In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003). Further, "[g]eneral allegations of prejudice are insufficient to show reversible error resulting from gaps in the recording." In re L.O.K., J.K.W., T.L.W. T.L.W., 174 N.C. App. 426, 437, 621 S.E.2d 236, 243 (2005).
In our case, respondent-father failed to show any specific evidence missing from the transcript or specific errors in the transcript. Further, he failed to show prejudice by such omissions or errors. When a complete transcript is unavailable, a party may use other means to compile a narration of the evidence, such as "reconstructing the testimony with the assistance of those persons present at the hearing." Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988). "Any disputes among the parties regarding the content of testimony, objections, or rulings can be resolved by the trial judge in settling the record on appeal." In re L.O.K., J.K.W., T.L.W. T.L.W., 174 N.C. App. at 437, 621 S.E.2d at 243. In our case, respondent-father has made no attempt to compile a narration of the evidence using other means. Moreover, on 2 February 2007, respondent-father stipulated the "stenographic transcript of the proceedings . . . is an accurate transcription of proceedings as recorded and shall be part of the Record on Appeal[.]" Accordingly, respondent-father's argument here is dismissed.
III. Neglect
Respondents collectively argue the trial court erred by terminating their parental rights on the grounds of neglect. We disagree.
A trial court may terminate parental rights upon finding the parent has neglected the juvenile. N.C. Gen. Stat. §§ 7B-1111(a)(1) (2006). Section 7B-101(15) defines "neglected juvenile" 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 lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen. Stat. §§ 7B-101(15) (2006). To prove neglect in a termination case, there must be clear, cogent, and convincing evidence the juvenile is neglected under N.C. Gen. Stat. §§ 7B-101(15) and "the juvenile has sustained `some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment as a consequence'" of such neglect. In re Reyes, 136 N.C. App. 812, 814, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
Neglect must be shown at the time of the termination proceeding. In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). Past neglect may be a factor used to terminate parental rights, but it cannot be the sole factor. Id. ( see also In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). If a child has been removed from the parents' custody before the termination hearing, and the petitioner presents evidence of prior neglect, including an adjudication of such neglect, the trial court must also consider any evidence of prior neglect and the probability of a repetition of neglect. Id. at 715, 319 S.E.2d at 232. Therefore, even if there is no evidence of neglect at the time of the termination hearing, the trial court can terminate the parents' rights "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. at 815, 526 S.E.2d at 501.
In the case before us, the minor children were adjudicated neglected on 9 September 2004. The trial court noted this in its findings, and respondents did not assign error to this. The trial court also made findings of fact regarding the likelihood of a repetition of neglect, and these findings were supported by clear, cogent, and convincing evidence. The trial court made the following findings:
22. [Due to] the parents' lack of interest, and progress, continued problems with drug abuse, continued involvement with law enforcement, and continued instability of residence and employment, it is likely that should the child[ren] be returned to the home of the parents, the original acts of neglect or similar actions would recur.
. . .
32. There is a high likelihood of repetition of neglect.
As to respondent-mother, these finding are supported by the testimony of the DSS social worker, Deborah Koen ("Ms. Koen"). Ms. Koen testified that respondent-mother had very little contact with the minor children and had not recently provided them gifts, cards, or letters. Also, respondent-mother testified she had been incarcerated more than once since the minor children were born, and she had several pending criminal charges. She further testified she changed jobs and residences frequently, and lived with different men who were not the father of the children. Additionally, she admitted to using marijuana two months before the termination hearing, and admitted to using cocaine approximately six months prior to the hearing.
As to respondent-father, the evidence supporting the trial court's findings can be found from his own testimony in which he stated he had not sent cards, letters, or gifts to R.L.S. prior to April 2006 while in prison. He also stated he missed several visits, even during the times he was not incarcerated. Ms. Koen testified she had not even seen respondent-father until the day of the termination hearing. Respondent-father abused alcohol and cocaine and only completed "some" substance abuse classes. Further, evidence was presented showing respondent-father had a persistent problem with the law. Respondent-father has not graduated high school or obtained a GED, does not have a driver's license, and presented no evidence showing he has secured employment upon his release from incarceration. Respondents' drug use, lack of stability in employment and housing, persistent involvement with law enforcement, and failure to complete the Family Service Case Plan supported the court's determination the minor children were neglected and there was a strong likelihood of neglect in the future. Therefore, this assignment of error is overruled.
IV. Failure to Make Reasonable Progress
Respondents next contend the trial court erred in terminating their parental rights based on their failure to make reasonable progress. We disagree.
Respondents contend their actions were not "willful," and urge this Court to adopt a different view of what constitutes "willful" behavior. We cannot agree with respondents' contentions. This Court has consistently held willfulness under §§ 7B-1111(a)(2) "is something less than willful abandonment." In re Nolen, 117 N.C. App. 693, 699, 453 S.E.2d 220, 224 (1995). "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).
In the case before us, respondents have failed to significantly improve the conditions leading to the children's removal. The evidence shows respondents failed to obtain stable employment, failed to obtain stable housing, and failed to correct persistent problems with law enforcement. Moreover, the minor children were removed due to respondents' substance abuse. Even though respondents were enrolled in substance abuse classes, respondents failed to complete such classes, and continued to struggle with substance abuse. This clearly shows respondents had programs available to help them with their substance abuse problem, but failed to take advantage of the programs. As we have stated previously, "[e]xtremely limited progress is not reasonable progress." In re Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25 (1995). Respondents' lack of action clearly supports a finding of "willfulness" by the trial court.
Thus, we hold the trial court's findings of fact were supported by clear, cogent, and convincing evidence. We further hold these findings support the court's conclusion that grounds for termination of respondents' parental rights existed.
Although respondents argue the trial court's order should be reversed for not accurately reflecting the oral order, "[T]he finding of any one of the grounds (under N.C. Gen. Stat. §§ 7B-1111(a)) is sufficient to order termination." Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003). Thus, while the trial court did not find sufficient grounds for terminating respondents' parental rights based on their failure to pay a portion of the reasonable cost of care, the trial court did find sufficient grounds for termination based on neglect and failure to make reasonable progress. Therefore, respondents' argument must be dismissed.
V. Best Interests of the Children
Respondents contend the trial court abused its discretion in finding it would be in the minor children's best interests to terminate respondents' parental rights. "After the trial court has determined grounds exist for termination of parental rights at adjudication, the court is required to issue an order of termination . . . unless it finds the best interests of the child would be to preserve the parent's rights." In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). Once a ground for termination has been established, the presumption is for the issuance of a termination order. Id. However, "where there is reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights." Id.
In our case, the evidence clearly shows there is no reasonable hope of reunification within a reasonable time and no reasonable hope respondents can provide for the children's needs. Respondents are frequently in trouble with the law, and both have been recently incarcerated. Respondents frequently change jobs. Respondents frequently change residences. Not only do they not currently live together, but each testified to having recently had live-in paramours. Further, respondents have presented no evidence showing either of them has successfully completed substance abuse programs or has lived for a significant period of time without abusing illegal drugs. Respondents presented no evidence they are willing and able to care for the minor children. Respondents produced no evidence they are likely to make appropriate choices as to the welfare of the minor children. Additionally, the minor children live with foster parents who are willing and able to care for them, and who wish to adopt them. The foster parents are relatives of respondent-father, and the children have stated they wish to remain with the foster parents and be adopted by them. In our case, "[t]here [is] nothing upon which the trial court could reasonably base a decision to find it would not be in [the minor children's] best interests to terminate parental rights." Id. at 614, 543 S.E.2d at 911. Therefore, the trial court did not abuse its discretion by concluding it was in the best interests of the minor children for respondents' parental rights to be terminated. Reviewing a termination of parental rights is an action this Court conducts with utmost scrutiny and care. It is not an act to be taken lightly. After careful consideration of the record on appeal and the briefs of all the parties, we affirm the trial court's order terminating respondent-mother's parental rights to B.D.H., J.L.S., and R.L.S., and terminating respondent-father's parental rights to R.L.S.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).