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holding that an appealed order should be affirmed when any one of the grounds of the trial court is supported by findings of fact based on clear, cogent, and convincing evidence
Summary of this case from In re M.S.L.Opinion
No. 5PA82
Filed 13 July 1982
1. Parent and Child 1 — termination of parental rights — statute not unconstitutionally vague The provisions of G.S. 7A-289.32 (2) and (3), and G.S. 7A-278 (4) are not unconstitutionally vague since people of common intelligence need not guess at their meaning and differ as to their application.
2. Parent and Child 1 — petition for return of children — record not revealing counsel provided — question of due process not reached The Court did not reach the question of whether due process requires that counsel be provided indigents when they petition for return of children since respondent failed to show that she did not have counsel, and the record is just as susceptible to interpretation that respondent had counsel as that she did not.
3. Parent and Child 1 — termination of parental rights — showing children quite "neglected" In a proceeding to terminate parental rights, the evidence showing that the children were "neglected" as that term is defined by G.S. 7A-517 (21) was overwhelming where the evidence showed that the children did not "receive proper care, supervision, or discipline from" their parents, that they were not provided "necessary medical care," and that they lived "in an environment injurious to" their welfare.
4. Parent and Child 1 — termination of parental rights — willfully leaving children in foster care for more than two years In a proceeding to terminate parental rights, the trial court properly found that respondent willfully left the children in foster care for more than two years and substantial progress was not made to the court's satisfaction in correcting the conditions which led to the removal of the children where the evidence showed that the respondent left the children in foster care for more than four years, and that during three of those years she did not visit or communicate with them or make any serious effort to do so.
5. Parent and Child 1 — termination of parental rights — failure to pay a reasonable portion of the cost of children's care In a proceeding to terminate parental rights, the trial court properly found that respondent had failed for a period of six months to pay a reasonable portion of the cost of her children's care where the evidence was uncontradicted that the children were in the custody of DSS for a period of more than 36 months and that the respondent paid no part of the cost of their care during that period of time.
ON certiorari to review order of Yeattes, Judge, entered 25 November 1980 in District Court, GUILFORD County.
Judith G. Behar for appellant.
Margaret A. Dudley, Deputy County Attorney, for Guilford County Department of Social Services — appellee.
Justice MITCHELL concurring.
Justice MEYER joins in this concurring opinion.
Justice CARLTON dissenting.
This cause consists of two proceedings instituted in the district court in January 1980 to terminate the parental rights of Bruce Kelly Moore and Lillie Ruth Moore in two of their minor children, twins Connie and Donnie Moore. It appears that from the outset the two proceedings have been treated as one and they are so treated here.
On 7 February 1980 the father, Bruce Moore, executed a document releasing the children for adoption. Mrs. Moore timely filed an answer in which she opposed the relief sought by petitioner, the Guilford County Department of Social Services. She also moved for a trial by jury and moved pursuant to G.S. 1A-1, Rule 12 (b), that the proceedings be dismissed for failure to state a claim for relief. These motions were denied.
Hereinafter the Guilford County Department of Social Services may be referred to as petitioner or DSS and Mrs. Moore may be referred to as respondent.
Following a lengthy hearing beginning on 24 September 1980 the court made findings of fact to which there is no exception. The facts, as found by the court and established by the record, are summarized in pertinent part as follows:
Connie and Donnie Moore were born on 27 July 1968. In December 1973 Mrs. Moore signed a dependency petition requesting that DSS take custody of the twins because their father was in jail and she was about to enter L. Richardson Hospital for psychiatric treatment. While she was hospitalized and immediately thereafter, employees of DSS counseled with her about leaving her husband, arranged for her to receive Supplemental Security Income benefits, and helped her locate an apartment.
The Moores reconciled in January 1974 and in February thereafter the court ordered the children returned to them. Both before and after the children were returned to their parents, a social worker stressed the importance of the family's not living with relatives, having separate rooms for the children, and family stability. Following the return of the children, the Moores continued to have contact with the DSS. At Mrs. Moore's request, a social worker arranged for the twins to have their preschool inoculations and to be enrolled in first grade.
When Connie began school she was reported as being disruptive in class, using vulgar language, hitting other children, and acting out sexual intercourse. She complained of vaginal pain. After her parents did not respond to attempts by school personnel to confer with them, on 15 November 1974 the principal went to the Moores' home and took them to the school for a conference. A social worker took Mrs. Moore and the children to a health clinic where Connie was treated for a vaginal inflammation. On the same day the DSS filed a petition alleging that both children were neglected.
A hearing was held pursuant to the petition in December and the parents were represented by counsel. Custody of the children was placed with the DSS, with Donnie to remain in the home under DSS supervision. Although Donnie was reported as sleeping a lot when he began school, there were no reports of disruptive behavior by him or of specific instances of neglect.
Mr. Moore's hostile behavior toward the female social worker then on the case caused DSS to assign another social worker, Richard Gainer, to the case. Mr. Gainer took over on 1 April 1975. After familiarizing himself with the Moore's records with DSS, Mr. Gainer went to the home for his first visit. Upon arrival he discovered that the Moores were facing eviction and that Mr. Moore was in hiding because he expected to be arrested for failing to comply with a court order to pay a sum of money. Mr. Moore was quite hostile and was drinking heavily at that time.
In April of 1975 Donnie was placed in a foster home. From that time until February of 1976 he lived in four foster homes. From 20 February 1976 to 24 July 1979 he lived in one foster home. The foster parents in this last home requested Donnie's removal rather abruptly when they began having serious marital problems. Between July of 1979 and September of 1980 he was in two foster homes. Altogether, he had been in six foster homes at the time of the termination hearing.
Between December of 1974 and the termination hearing in September 1980 Connie had been in either seven or nine foster homes. During this period Connie was also placed in North Carolina Memorial Hospital for psychiatric treatment and in Thompson Children's Home. Between May of 1980, when she left Thompson, and the termination hearing in September, she had been in two homes.
Mr. and Mrs. Moore continued to have economic and marital difficulties after the children were removed from their home. They moved frequently and applied to DSS for help in finding housing and for money. In December 1975 they filed a motion with the court seeking to have custody of the children returned to them. The court found that they were "still unfit" to have the children and dismissed the motion.
Since 1975 the Moores have had 16 different addresses in or near seven different cities or towns. Mrs. Moore left her husband in 1977 and after a two year separation, obtained a divorce on 8 October 1979.
Between December 1974 and September 1980 Mrs. Moore paid 11 visits to Connie and nine visits to Donnie. For a period of three years, July 1976 to July 1979, there were no visits nor any other communication with the children.
Mr. Gainer had some contact with Mrs. Moore in June and August of 1977 but did not try to involve her in Connie's therapy which was then in process. In September 1978 Mr. Moore telephoned Mr. Gainer and attempted to arrange a visit with the children, with his fiancee present. Mr. Gainer would not allow a visit in the presence of the fiancee and Mr. Moore did not visit. In May 1979 Mrs. Moore telephoned DSS indicating that she was living in the mountains, expected to get a divorce soon thereafter, wanted to see her children but had no way of getting to Greensboro.
In July of 1979 Mrs. Moore visited with Connie at the DSS office in Greensboro. Since Donnie had just been moved from his foster home of three years, Mr. Gainer thought it wise that he not see his mother at that time and scheduled an appointment for Mrs. Moore sometime later. Mrs. Moore had no way to get to Greensboro from the mountains for that visit and did not keep the appointment.
Mrs. Moore did not visit with either of the children again until after she received notice of the termination petition in February 1980. Mrs. Moore never gave either of the children a Christmas, Easter or birthday present while they were in foster care until after the termination petition was filed.
Meanwhile, DSS reached a decision to seek termination of the Moore's parental rights and to try to place the twins for adoption. The termination petition was filed on 17 January 1980. As stated above, Mr. Moore voluntarily released the children for adoption.
When Mrs. Moore received notice of the termination petition in February 1980, she employed a cab to drive her to Winston-Salem where she could get a bus to Greensboro. She lived with friends until she found a place in the country where she could have a garden and which she thought would be suitable for the children. She resumed counseling at Guilford County Mental Health Center and kept her appointments. She had some visits with the children. She also enrolled at Guilford Technical Institute for purpose of learning to read and doing basic arithmetic. She did not apply to DSS for financial or other aid.
Approximately six months after the termination petition was filed, on 2 July 1980, Mrs. Moore asked the social worker what amount of money she should pay for the children's support. Fifteen dollars per week was suggested although Mrs. Moore offered to pay $40 per week. Nothing was ever paid. DSS paid Thompson Children's Home $28,883.96 for Connie's care. Foster parents are paid $142.50 per month and the children receive Medicaid. DSS furnishes their clothing. Mrs. Moore testified at the termination hearing that she could not afford to pay anything for the children's support because her automobile insurance premium was unexpectedly high. Mrs. Moore owns a 1971 Cadillac, and another car, plus a pickup truck which she rents out for $50 per week. She also receives $218 per month in social security benefits. Her automobile insurance is $800 per year.
Mrs. Moore dropped out of the program at Guilford Technical Institute because she could not get to school on account of "gas problems." Further, although in February 1980 Mrs. Moore went to DSS and stated that she was then in a position to take care of the children and that she was going to move in with a brother in Ashe County who had agreed to take both of the children, she later wondered if the brother was willing to have children with discipline problems and did not know if she could handle Connie's problems.
Donnie has been provided with counseling sessions with a psychiatrist due to the fact that he began "acting out" and being defiant. His behavior has improved considerably since 31 March 1980. Donnie does not want to return to his mother. His school performance has improved in his current foster placement and his work is much more stabilized and acceptable.
Although much improved, Connie still has some behavior problems and is slow academically. She is in a special education class.
Based on its findings of fact the trial court concluded as a matter of law that (1) Mrs. Moore has neglected the children; (2) she has wilfully left the children in foster care for more than two years and substantial progress has not been made to the court's satisfaction in correcting the conditions which led to the removal of the children; and (3) the children have been placed in the custody of the DSS and Mrs. Moore has failed for a period of six months to pay a reasonable portion of the costs of their care. The court ordered that the parental rights of Mrs. Moore be terminated and that the children remain in the custody of the DSS until such time as they can be placed for adoption.
Mrs. Moore appealed to the Court of Appeals and the record on appeal was duly served and filed in that court. Briefs were filed and the cause was heard on 1 September 1981. The Court of Appeals concluded that because the notice of appeal had not been filed within 10 days after entry of Judge Yeattes' order as G.S. 1-279 (c) and Appellate Rule 3 (c) require, the appeal must be dismissed for lack of appellate jurisdiction.
Mrs. Moore petitioned this court for discretionary review under G.S. 7A-31. This court treated the petition as one for a writ of certiorari to review the order of the trial court and allowed the petition on 12 January 1982.
I.
The Court of Appeals properly dismissed respondent's appeal because of her failure to give timely notice of appeal.
The record on appeal reveals that while Judge Yeattes did not enter his formal written order until 25 November 1980, he announced his decision in open court on 25 September 1980 immediately after the hearing. G.S. 1-279 (c) and Appellate Rule 3 (c) provide that if oral notice of appeal is not given at trial, notice of appeal must be filed and served within 10 days after "entry" of the order or judgment. G.S. 1A-1, Rule 58, provides that "where judgment is rendered in open court, the clerk shall make a notation in his minutes as the judge may direct and such notation shall constitute the entry of judgment for the purposes of these rules. The judge shall approve the form of the judgment and direct its prompt preparation and filing."
It appears that respondent did not give oral notice of appeal at trial but filed and served her notice of appeal on 8 October 1980, 13 days after the "entry" of the order. Nevertheless, since we have allowed Mrs. Moore's petition for a writ of certiorari and have considered the appeal on its merits, the question of validity of the notice of appeal has become moot.
II.
Respondent contends that the trial court erred in denying her motion to dismiss the petition to terminate her parental rights. She argues that the petition does not state a claim for relief for the reason that the "termination statutes" are unconstitutionally vague and do not provide for due process in light of the interests at stake. We find no merit in this contention.
G.S. 7A-289.32 sets forth six separate grounds upon which a termination of parental rights order can be based. Portions of the statute pertinent to the case at hand are as follows:
Grounds for terminating parental rights. — The court may terminate the parental rights upon a finding of one or more of the following:
(1) . . .
(2) The parent has abused or neglected the child. The child shall be deemed to be abused or neglected if the court finds the child to be an abused child within the meaning of G.S. 110-117 (1)(a), (b), or (c), or a neglected child within the meaning of G.S. 7A-278 (4).
(3) The parent has willfully left the child in foster care for more than two consecutive years without showing to the satisfaction of the court that substantial progress has been made within two years in correcting those conditions which led to the removal of the child for neglect, or without showing positive response within two years to the diligent efforts of a county department of social services, a child-caring institution or licensed child-placing agency to encourage the parent to strengthen the parental relationship to the child or to make and follow through with constructive planning for the future of the child.
(4) The child has been placed in the custody of a county department of social services, a licensed child-placing agency, or a child-caring institution, and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child.
* * *
G.S. 7A-278 (4) referred to in subsection (2) of the quoted statute was repealed by Chapter 815 of the 1979 Session Laws. The substance of former G.S. 7A-278 (4) now appears as G.S. 7A-517 (21) [1981 Replacement] as follows:
(21) Neglected Juvenile. — A juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law.
This court in In Re Clark 303 N.C. 592, 281 S.E.2d 47 (1981), upheld the constitutionality of subsection (4) quoted above. See also In Re Biggers, Two Minor Children, 50 N.C. App. 332, 274 S.E.2d 236 (1981). We reaffirm our holding in Clark.
On the question of vagueness of a statute, this court in In Re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879 (1969), aff'd, 403 U.S. 528 (1971), an opinion authored by Justice Huskins, said:
It is settled law that a statute may be void for vagueness and uncertainty. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." 16 Am. Jur.2d, Constitutional Law 552; Cramp v. Board of Public Instruction, 368 U.S. 278, 7 L.ed.2d 285; 82 S.Ct. 275; State v. Hales, 256 N.C. 27, 122 S.E.2d 768. Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L.ed. 1877, 67 S.Ct. 1538.
Further, in the case of In Re Biggers, supra, we find:
A statute must be examined in the light of the circumstances in each case, and respondent has the burden of showing that the statute provides inadequate warning as to the conduct it governs or is incapable of uniform judicial administration. State v. Covington, 34 N.C. App. 457, 238 S.E.2d 794, rev. denied, 294 N.C. 184, 241 S.E.2d 519 (1977).
Applying the standard set forth in Burrus and Biggers, and cases cited therein, we hold that the provisions of G.S. 7A-289.32 (2) and (3), and G.S. 7A-278 (4) quoted above are not unconstitutionally vague. People of common intelligence need not guess at their meaning and differ as to their application.
With respect to respondent's due process contention, she argues that while she and her husband were provided counsel when the decision to remove the children for neglect was first made in 1974, "the record does not show that they were represented or advised that they could be represented" when they petitioned the court in 1975 to return the children.
We do not reach the question of whether due process requires that counsel be provided indigents when they petition for a return of children. The presumption is in favor of the correctness of the proceedings in the trial court, London v. London, 271 N.C. 568, 157 S.E.2d 90 (1967); Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967), and the burden is on the appellant to show error. Gregory v. Lynch, supra Respondent has failed to show that she did not have counsel. Furthermore, the record is just as susceptible to interpretation that respondent had counsel as that she did not. Although the court order from the 19 December 1975 hearing did not reflect the presence of counsel for the parents, Richard Gainer testified that the Moore's attorney had the proceedings continued from the 12th to the 19th (R pp 16a, 50).
III.
Respondent states her next contention as follows: "The trial court erred in denying respondent's motion to dismiss at the close of the state's evidence and at the close of all of the evidence when there was clear, cogent and convincing evidence that respondent had made substantial progress in correcting the conditions that had led to the children's removal for neglect, that she had not failed to pay a reasonable portion of the cost of their care, that petitioner had not diligently encouraged the respondent to strengthen her parental relationship to the children, and that respondent had not wilfully left her children in foster care for more than two years." Her final contention is that the trial court's conclusions of law are erroneous in that they are not supported by clear, cogent and convincing evidence. We find no merit in these contentions.
G.S. 7A-289.30 (e) provides, inter alia, that in an adjudicatory hearing on a petition to terminate parental rights the court shall find the facts and "all findings of fact shall be based on clear, cogent, and convincing evidence." It will be noted that the trial court is authorized to terminate parental rights "upon a finding of one or more" of the six grounds listed in G.S. 7A-289.32.
In the case at hand the trial court based its order terminating respondent's rights on three of the grounds set forth in the statute, (2), (3) and (4). The court concluded as a matter of law (a) that respondent had neglected the children; (b) that she had wilfully left the children in foster care for more than two years and substantial progress had not been made to the court's satisfaction in correcting the conditions which led to the removal of the children; and (c) the children had been placed in the custody of the DSS and respondent had failed for a period of six months to pay a reasonable portion of the costs of their care.
If either of the three grounds aforesaid is supported by findings of fact based on clear, cogent and convincing evidence, the order appealed from should be affirmed. We have set forth above a lengthy summary of the findings of fact and other facts established by the record. Since respondent did not except to any of the findings, they are presumed to be correct and supported by evidence. Nationwide Homes of Raleigh, Inc. v. First Citizens Bank Trust Co., 267 N.C. 528, 148 S.E.2d 693 (1966); Keeter v. Lake Lure, 264 N.C. 252, 141 S.E.2d 634 (1965). Nevertheless, we have reviewed the evidence and conclude that the findings are supported by clear, cogent and convincing evidence and the findings support all three of the conclusions of law.
With respect to the first ground upon which the court based its termination order, evidence showing that the children were "neglected" as that term is defined by G.S. 7A-517 (21) was overwhelming. In fact, practically all of the evidence tended to show that when the children were in respondent's charge they did not "receive proper care, supervision, or discipline from" their parents, that they were not provided "necessary medical care," and that they lived "in an environment injurious to" their welfare. The evidence was abundant that after the children were retaken by petitioner, respondent made very little effort to visit or even contact them for approximately three years. In fact, between July 1976 and July 1979 she did not visit them at all, or even send them a Christmas present. It is true that after the termination petition was filed, she began visiting the children and gave them gifts. Certainly the evidence showing neglect of the children was clear, cogent and convincing.
The second ground for the court's termination order was that respondent wilfully left the children in foster care for more than two years and substantial progress was not made to the court's satisfaction in correcting the conditions which led to the removal of the children. As stated above, the evidence is abundant that respondent left the children in foster care for more than four years, and that during three of those years she did not visit or communicate with them or make any serious effort to do so. After the petition to terminate parental rights was filed, she made arrangements to visit the children and manifested some efforts to arrange a place for the children to live with her; however, even then she was not certain that she could take care of the children particularly Connie. We think the evidence supporting the trial court's second ground for termination was clear, cogent and convincing.
As to the third ground for termination, the undisputed evidence showed that the children were placed in the custody of petitioner in 1975 or 1976, that they continued in the custody of DSS until the petition was filed on 17 January 1980 (considerably more than 36 months), and that the respondent paid no part of the costs of their care during that period of time. Not only was this ground proven by clear, cogent and convincing evidence, there was no evidence to the contrary.
IV.
The county departments of social services have no greater responsibility than that imposed on them by our statutes relating to neglected children. In the case at hand we are convinced that petitioner has gone the "extra mile" in trying to stabilize respondent's home so that there would be a reasonable chance that a resumption of her parental responsibilities over Connie and Donnie would be successful. When the termination procedure was instituted, the children were 12-1/2 years old and their physical and emotional problems continued to be legion. Donnie had been in six different foster homes and Connie had been in seven or nine in addition to having been in a hospital for psychiatric treatment.
Having concluded that respondent would not be able to establish a stable home for the children, and that the children desperately need more stability in their home lives during the remainder of their minority, petitioner seeks to have respondent's parental rights terminated with the hope that the children might be adopted by people who will provide their needs. Respondent's plea seems to be "give me another chance, it might succeed."
The children are now 14, a very crucial period in their development to adulthood. The trial court concluded, in effect, that the course pursued by petitioner is in the best interest of the children and we find no reason to disturb that decision.
The decision of the Court of Appeals dismissing the appeal is vacated. The order of the trial court is
We are advertent to the amendments to G.S. 7A-289 enacted by Chapter 1131 of the 1981 Session Laws (1982 Adjourned Session) ratified 11 June 1982. However, we conclude that said amendments do not relate to the questions presented by this appeal.