Opinion
No. 04-1707.
Filed January 17, 2006.
New Hanover County No. 03 J 387.
Appeal by respondent mother from order entered 23 July 2004 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 11 October 2005.
Julia Talbutt for petitioner-appellee. Lisa Skinner Lefler for respondent-appellant. Regina Floyd-Davis for guardian ad litem.
The respondent mother L.L. appeals from an order terminating her parental rights with respect to her minor daughter, S.R.L.L.L. argues on appeal that the trial court erred by denying her attorney's motion to withdraw and failing to appoint substitute counsel and by failing to appoint a guardian ad litem for her. Because the mother did not express any dissatisfaction with her appointed counsel and has failed to demonstrate that her appointed counsel's performance was deficient and because a guardian ad litem was not required under the applicable statute, we hold that the trial court's rulings were proper. Further, we hold that the evidence supported the trial court's findings of fact and conclusions of law that grounds existed to terminate the mother's parental rights and that termination was in the best interests of S.R.L.
Facts
S.R.L. was born on 19 January 2002. At the time of her birth, both S.R.L. and her mother tested positive for cocaine. Before L.L. and the child were discharged from the hospital following the birth, a social worker from the New Hanover County Department of Social Services ("DSS") visited L.L. to discuss a case plan that would provide a safe and substance-free environment for the child. L.L. refused to sign any plan.
On 30 January 2002, DSS filed a petition alleging that S.R.L. and her two older half-sisters were neglected and dependent children. On the same date, the district court entered an order placing S.R.L. in the non-secure custody of DSS. Pursuant to this order, DSS placed S.R.L. in foster care immediately upon her discharge from the hospital. S.R.L. has remained in foster care continuously since that time.
The two older sisters were subsequently placed with their father. S.R.L. has a different father.
An assessment on 18 February 2002 revealed that L.L. was dependent on cocaine, cannabis, and alcohol. In that same month, L.L. entered into a case plan with DSS to address issues of substance abuse, domestic violence, and neglect. The case plan had a goal of reunification with S.R.L. and called for L.L. to attend the New Visions outpatient program for substance abuse treatment and to submit to regular drug screens. Visitation with S.R.L. was made contingent on these periodic drug screens being negative. L.L. initially complied with the case plan and entered the New Visions Program.
By July 2002, the staff at New Visions became concerned about L.L.'s prescription drug addiction, the intensity of which she denied. Starting on 2 August 2002, L.L. entered the Walter B. Jones Treatment Center for 21 days of in-patient treatment. L.L. was offered the opportunity to have S.R.L. accompany her during those 21 days, but she declined.
Following L.L.'s discharge from the treatment center, she returned to the New Visions program, where she continued to make progress for approximately three months. In November 2002, however, she was asked to leave New Visions due to the anger, hostility, and defensiveness she expressed in group meetings. Although L.L. was referred to the Dialectical and Behavioral Therapy group at the Southeastern Center for Mental Health, she claimed that transportation issues prevented her participation.
From 22 February 2002 through 20 June 2003, L.L. had 19 or 20 visits with S.R.L., out of 26 or 27 opportunities. On 23 June 2003, L.L. went to her drug screening at TASC, but did not initially produce a sample sufficient for testing. When requested to produce additional urine so that her drug screen could take place, L.L. be came hostile and began using profanity, causing the director of TASC to bar L.L. from the premises for six months. Following this incident, L.L. was denied visitation with S.R.L. because her sobriety and abstinence from drugs were no longer being verified.
During 2003, L.L.'s attendance at court proceedings involving S.R.L. was spotty. She failed to appear for the hearing on her own motion for review on 9 January 2003 and also did not attend a permanency planning hearing on 30 January 2003. At a later review, L.L. attended court on the proper day, but left before her case was called. Finally, L.L. refused to attend a 13 November 2003 review hearing following service of the petition to terminate her parental rights. Although L.L. was incarcerated at the time, a writ of habeas corpus ad testificandum had been issued to ensure her appearance at the hearing if she wished.
Between the time of her release from the Walter B. Jones Treatment Center in August 2002 and the time of the termination hearing in March 2004, L.L. was employed for a total of 10 days. She also showed continual hostility to the social worker assigned to her case, sometimes refusing to communicate with her altogether. The social worker was only able to keep track of L.L.'s whereabouts by contacting L.L.'s mother. During the time period leading up to the termination of parental rights hearing, L.L. was in and out of jail and was involved in multiple incidents of domestic violence with S.R.L.'s father, including several instances in which law enforcement determined that she was the aggressor and that alcohol and substance abuse had played a role in the violence.
Since being released from custody in December 2003, L.L. has resided with her mother in Wilmington. At the time of the hearing below, in March 2004, L.L. testified that she had not used any drugs or alcohol since 3 September 2003 and that she attended AA meetings regularly. She also stated that she intended to begin group therapy at the Southeastern Mental Health Center and that she was undergoing an alcohol assessment to fulfill the requirements necessary to regain her operator's license. The trial court found, however, that L.L. had previously refused the assessment, even though she knew that a valid license would have facilitated visitation with her daughter.
DSS filed its petition to terminate L.L.'s parental rights with respect to S.R.L. on 8 October 2003, asserting that L.L. had neglected her daughter and willfully left her in foster care for more than 12 months without showing that reasonable progress under the circumstances had been made in correcting the conditions that led to S.R.L.'s removal. Following a hearing on 15 March 2004, the trial court entered an order terminating L.L.'s parental rights on 23 July 2004 based on both grounds included in the petition.
S.R.L.'s father signed a relinquishment of his parental rights and, therefore, is not a party to this appeal.
I
L.L. first contends that the trial court erred in refusing to allow her trial counsel, Renee Wagoner, to withdraw and in failing to substitute new appointed counsel. L.L. did not seek removal of Ms. Wagoner, but rather Ms. Wagoner moved to withdraw three days before the scheduled termination hearing. The trial court heard that motion on 15 March 2004 before commencing the termination hearing.
The court stated: "I'll be glad to let you put anything else in the record that you'd like to put in." Ms. Wagoner indicated that she was seeking to withdraw because L.L. was "verbally abusive," her conversations with L.L. had "deteriorated and . . . become unproductive due to the way in which [L.L.] expresses herself," L.L. had declined to meet with her, and, as a result, Ms. Wagoner had not been able to adequately discuss the case with her client in order to prepare for the hearing. In response to the court's inquiry, Ms. Wagoner stated that she had spent 20 to 25 hours representing L.L. The court then asked whether L.L. had arranged for another attorney to represent her. L.L. and Ms. Wagoner confirmed that she had not and that a second attorney, who was representing L.L. on other matters, was not willing to assume this representation. When the court asked L.L. if she wanted to say anything, in light of her counsel's motion, L.L. answered, "No, there's not." The court then prompted, "You don't get along with this attorney?" L.L. replied, "I think she's a fine attorney. We just have differences of opinions like sometimes lawyers and clients do."
After learning that the petition was served on 15 October 2003 and the hearing had been set since 2 February 2004, the trial court stated: "In view of the amount of time spent preparing the case for trial and the unlikeliness of any other attorney being able to communicate any better, the attorney that's been mentioned declines to represent her further. It's a court-appointed matter. The matter's been continued before." The court then denied the motion to withdraw.
Our Court has recognized that a "`parent['s] right to counsel in a proceeding to terminate parental rights is now guaranteed in all cases by statute' and that `[a] parent's interest in the accuracy and justice of the decision to terminate his or her parental rights is a commanding one.'" Little v. Little, 127 N.C. App. 191, 192, 487 S.E.2d 823, 824 (1997) (alterations in original) (quoting In re Bishop, 92 N.C. App. 662, 664, 375 S.E.2d 676, 678 (1989)). Further, this Court has held that "the [statutory] right to counsel . . . includes the right to effective assistance of counsel." Bishop, 92 N.C. App. at 665, 375 S.E.2d at 678. A respondent must, however, show that "counsel's performance was deficient and the deficiency was so serious as to deprive her of a fair hearing." Id., 375 S.E.2d at 679.
L.L. objects first that the trial court failed to conduct a proper inquiry and did not provide her with an opportunity to present any evidence. Our review of the transcript does not support this contention. The court gave both L.L.'s counsel and L.L. free rein — limited only by the court's concern for the attorney-client privilege — to raise any concerns they had.
With respect to L.L.'s contention on appeal that the trial court should have substituted new counsel, the record reveals that L.L. was not seeking new counsel, but rather was satisfied with Ms. Wagoner. While Ms. Wagoner was asking to be relieved of her responsibilities because of difficulties in their interactions, L.L. has failed to make any showing on appeal that Ms. Wagoner's performance was deficient in any respect. Under these circumstances, we cannot conclude that the trial court erred in denying Ms. Wagoner's motion to withdraw.
II
L.L. next argues that the trial court should have appointed a guardian ad litem to represent her in the termination proceedings. At the time of the hearing, N.C. Gen. Stat. § 7B-602(b) (2003) provided for appointment of a guardian ad litem as follows:
. . . a guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent in the following cases:
(1) Where it is alleged that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101 in that the parent is incapable as the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition of providing for the proper care and supervision of the juvenile; or
(2) Where the parent is under the age of 18 years. (Emphasis added.)
We note that N.C. Gen. Stat. § 7B-602(a) has since been amended to provide for appointment of a guardian ad litem for a non-minor parent upon motion "if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." 2005 N.C. Sess. Laws 398, sec. 2.
L.L. acknowledges that she does not fall within the literal language of the statute since DSS' petition for termination of L.L.'s parental rights did not allege dependency as grounds for termination. Nevertheless, L.L. contends that dependency was indirectly alleged because of the substance abuse and mental health allegations recited in the petition. This argument was expressly rejected by this Court in In re H.W., 163 N.C. App. 438, 447, 594 S.E.2d 211, 216 (holding that a guardian ad litem need only be appointed when the petition expressly alleges dependency), disc. review denied, 358 N.C. 543, 599 S.E.2d 46 and 603 S.E.2d 877 (2004). While L.L. points to In re J.D., 164 N.C. App. 176, 605 S.E.2d 643, disc. review denied, 358 N.C. 732, 601 S.E.2d 531 (2004), as support for her position, the petition in that case actually did allege dependency. Id. at 182, 605 S.E.2d at 646 ("Subsection 7B-1111(a)(6) was clearly alleged in the petition. . . ."). This Court held only that even if DSS chooses not to proceed on that ground, a guardian must be appointed based on the allegation. Id. Therefore, based on H.W. and the fact that the petition in this case did not seek termination based on dependency grounds, we overrule this assignment of error.
III
Finally, L.L. assigns error to the pertinent findings of fact, arguing that they are unsupported by evidence, and challenges the trial court's conclusion, based on those findings of fact, that grounds existed to terminate her rights because she neglected her daughter. The trial court, however, concluded both that L.L. neglected S.R.L. and that she willfully left her in foster care for more than 12 months without showing that reasonable progress under the circumstances had been made in correcting the conditions that led to S.R.L.'s removal. While L.L. assigned error to the latter conclusion, she has limited the argument in her brief to the neglect ground and has not addressed the second ground. Under N.C.R. App. P. 28(b)(6), that contention is deemed abandoned: "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." (Emphasis added.)
L.L.'s failure to challenge the second ground for termination on appeal renders any error with respect to the neglect ground immaterial. As this Court explained in In re C.L.C., ___ N.C. App. ___, ___, 615 S.E.2d 704, 709 (2005):
[B]ecause, in this case, the mother has not assigned error to the trial court's other grounds for termination — neglect under N.C. Gen.Stat. § 7B-1111(a)(1) and willful abandonment under N.C. Gen.Stat. § 7B-1111(a)(7) — the trial court's error [as to willfully leaving in foster care] is immaterial. "The finding of any one of the grounds is sufficient to order termination." Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003). Either of the two unchallenged grounds for termination is sufficient to support the trial court's order.
In any event, we observe further that the trial court's conclusion that L.L. had failed to make reasonable progress under the circumstances in correcting those conditions that led to the removal of S.R.L. is fully supported by the court's findings of fact, and those findings of fact are in turn supported by clear, cogent, and convincing evidence. With respect to the evidence, L.L. argues in connection with her discussion of neglect:
The testimony at the hearing was that L.L. had never tested positive for illegal drugs, she submitted to a psychiatric evaluation, attended numerous counseling sessions, exercised visitation with her daughter and generally worked the case plan. On the occasions that she was unable to produce a urine screen, the testimony was that she could not afford to have one and that she had no transportation to the testing agency.
DSS, however, presented evidence that (1) L.L. tested positive for cocaine at the birth of S.R.L.; (2) her abstinence from drugs and alcohol could not be verified due to her behavior at the testing facility; (3) L.L. had continued to use drugs and alcohol; (4) L.L. failed to maintain stable employment; (5) she did not take full advantage of opportunities for visitation, refused to have S.R.L. accompany her while she was engaged in treatment, and failed to attend court appearances related to her daughter; (6) L.L. failed to make progress regarding domestic violence; and (7) L.L. expressed hostility to her social worker and others while failing to work with DSS in connection with her case plan. The court's factual findings in accordance with this evidence are binding on appeal, even though there may be evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 321 (1988).
The court's findings are in turn sufficient to support its conclusion that grounds for termination existed under N.C. Gen. Stat. § 7B-1111(a)(2) (2003), which authorizes termination if:
[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.
"A finding of willfulness does not require a showing of fault by the parent." In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). Instead, "willfulness" for the purposes of § 7B-1111(a)(2) is met when the parent has the ability to overcome his or her problems but nonetheless, over a significant period of time, fails to take steps to improve his or her situation. Bishop, 92 N.C. App. at 668, 375 S.E.2d at 680. A finding of willfulness "is not precluded just because respondent has made some efforts to regain custody of the child." Oghenekevebe, 123 N.C. App. at 440, 473 S.E.2d at 398.
Our courts have held "that extremely limited progress is not reasonable progress. This standard operates as a safeguard for children. If parents were not required to show both positive efforts and positive results, a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose." In re B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004) (internal citations and quotation marks omitted). Moreover, a trial court is not required to consider as reasonable progress efforts occurring only when parental rights are in jeopardy. See id. at 546, 594 S.E.2d at 93 ("[R]espondent went to see a counselor only three weeks prior to the [TPR] hearing. Such a delayed effort has been deemed to be insufficient progress. . . ."); Oghenekevebe, 123 N.C. App. at 437, 473 S.E.2d at 397 (holding that trial court could rely upon "respondent's failure to show any progress in her therapy until her parental rights were in jeopardy").
In this case, the trial court's findings regarding the lack of stable employment, repeated incarceration and domestic violence, lack of cooperation on her plan, and questionable progress on her substance abuse permitted the court's conclusion that L.L. had willfully failed to make reasonable progress. See, e.g., In re Frasher, 147 N.C. App. 513, 515-16, 555 S.E.2d 379, 381 (2001) (respondent mother's failure to obtain and maintain steady employment was evidence of failure to make reasonable progress); In re Tate, 67 N.C. App. 89, 94-95, 312 S.E.2d 535, 539 (1984) (respondent mother's admitted "setbacks with her drinking" were evidence of failure to make reasonable progress). While L.L. claimed at the hearing to have taken steps towards her plan, the trial judge was entitled to conclude that these modest steps were too late.
With respect to the dispositional phase, L.L. argues that even if grounds existed to terminate her parental rights, the trial court abused its discretion in deciding that it was in the best interests of the child to terminate those rights. In reviewing for abuse of discretion at the dispositional stage, "[t]he best interest of the child[ ] is the polar star by which the discretion of the court is guided." Bost v. Van Nortwick, 117 N.C. App. 1, 8, 449 S.E.2d 911, 915 (1994) (internal quotation marks omitted), appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995). For a trial court's decision to be an abuse of discretion, it must have been "manifestly unsupported by reason." State v. Shoemaker, 334 N.C. 252, 261, 432 S.E.2d 314, 318 (1993).
The trial court's findings indicate that L.L. consistently struggles in areas of her life that have great potential to directly impact her young daughter's welfare, including substance abuse, domestic violence, anger management, and employment. According to the trial court, L.L. has cooperated only sporadically with DSS' efforts to work with her on solving these problems, and at times, through her angry and abusive behavior, she has made it impossible for such cooperation to take place. Further, the trial court reasonably determined that L.L. has not demonstrated a consistent commitment to S.R.L. and her fate. Under such circumstances, we conclude that the trial court did not abuse its discretion in terminating the respondent mother's parental rights to S.R.L. See In re Howell, 161 N.C. App. 650, 657-58, 589 S.E.2d 157, 161 (2003) (holding that termination was in child's best interests based on mother's unresolved substance abuse and anger management problems and her resistance to DSS' efforts to help her). Accordingly, we affirm the trial court's order terminating L.L.'s parental rights.
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).