Opinion
No. COA02-631
Filed 5 August 2003 This case not for publication
Appeal by respondent Connie Thompson from order entered 1 November 2001 by Judge Ted Blanton in Rowan County District Court. Heard in the Court of Appeals 13 May 2003.
Elizabeth A. Hansen for Connie Thompson respondent appellant. No brief for petitioner appellee.
Rowan County DOB: 1/26/99 No. 99 J 72.
Respondent Connie Thompson appeals from an order terminating her parental rights to her son Jessee Lee Thompson, who was born on 26 January 1999. The identity of Jessee's father is unknown and he is not a party to this appeal. On 1 April 1999, the trial court entered a non-secure order giving the Rowan County Department of Social Services (DSS) custody of Jessee based on allegations of abuse, neglect, and dependency. On 6 August 1999, Jessee was adjudicated to be an abused, neglected, and dependent juvenile pursuant to N.C. Gen. Stat. § 7B-101(1), (15), and (9). On 30 May 2001, DSS filed a petition to terminate Ms. Thompson's parental rights to Jessee.
At the hearing on 20 August 2001, DSS presented evidence that it had been involved with Jessee and his mother since Jessee was two and one-half months old. At the time of Jessee's birth, respondent was a single mother who lived with her seventeen-year-old son in Salisbury, North Carolina. Another child, Timothy, had previously been taken out of the home because he suffered a serious injury while in Ms. Thompson's care. There was a history of domestic violence between Ms. Thompson and her oldest son.
Ms. Thompson had a stomach ulcer and severe arthritis and took several prescription drugs for those conditions. Jessee was born with a positive drug screen and was underweight because of the medications his mother took during pregnancy and her poor nutritional habits. He remained in the hospital for ten days and was then released to his mother, against the advice of Dr. Rosalena Conroy. Ms. Thompson continued to take prescription drugs after Jessee's birth and had a history of abusing Oxycotin, a pain narcotic for which she had a prescription. When Jessee was two and one-half months old, he suffered a severe head injury when he was hit multiple times with the leg of an end table. The injury was either inflicted by Ms. Thompson or by someone else while she was asleep. Because Jessee suffered the injury while in his mother's care, she was charged with felony child abuse. Ms. Thompson pled guilty to that offense and served four months in jail.
Due to his head injury, Jessee is a special needs child with delayed speech and motor development, speech aphasia, and continuing seizures. Jessee is extremely fragile, takes Phenobarbital for his seizures, and will have to undergo extensive speech therapy, physical therapy, and occupational therapy for many years to come. Jessee's injury prompted immediate action by DSS, which took Jessee into its custody on 1 April 1999.
While in jail, Ms. Thompson underwent drug detoxification and thereafter submitted to random drug screens. After Ms. Thompson's release from jail on 13 August 1999, the trial court concluded that Jessee should remain in the custody of DSS because returning him to his mother's care was against his welfare. DSS offered Ms. Thompson a number of services and the trial court ordered her to complete several goals, with an eye toward eventual reunification. The trial court noted that Ms. Thompson had a history of overusing Oxycotin, but did not specifically ask Ms. Thompson to discontinue its use.
A number of individuals testified at the bench hearing regarding their involvement in Jessee's case. DSS social worker Darlene Parker testified that she reviewed Ms. Thompson's progress on her court-ordered goals and that she observed Ms. Thompson and Jessee during their monthly one-hour supervised visits. According to Ms. Parker, Ms. Thompson began receiving AFDC benefits in April 2001, but did not make child support payments. Ms. Thompson successfully completed parenting classes, the PACT program (Parents and Children Together program), a psychological evaluation, and regularly visited Jessee. During each visit, which occurred at her trailer, Ms. Thompson cooked food and gave Jessee several new toys or new clothes. Ms. Parker was present during most of those visits and noted that Ms. Thompson constantly compensated . . . constantly giving and constantly buying toys for the children. And, and cooking for the children. There was not interaction, really where she actually one on one with the children. Basically it was her giving them things. That's what I interpreted with the visits.
Ms. Parker acknowledged that a bond between Jessee and his mother existed, but she did not believe Ms. Thompson could appropriately care for Jessee and remained concerned that Ms. Thompson continued to take Oxycotin, the same medicine she was taking when Jessee suffered his head injury. Although she did not doubt that Ms. Thompson loved Jessee, Ms. Parker opined that Ms. Thompson did not seem able to fully deal with his special needs and did not appear to have a plan through which she could provide for Jessee's needs on a continuing basis.
Ms. Michelle Feely, Timothy's foster mother, testified that Jessee and Timothy loved each other and interacted well during their visits, which occurred every weekend, beginning in April 2001. She stated that Jessee appeared to be happy to see both his brother and his mother, and that he adjusted well to the weekend schedule of visitation. Ms. Feely expressed her hope that Timothy and Jessee could continue to see each other after the case was resolved and also stated her belief that Jessee was progressing well in his foster home.
Dr. Rosalena Conroy, Jessee's pediatrician, testified regarding the extensive therapy Jessee has needed and will continue to need over his lifetime. When asked what Ms. Thompson's role was in Jessee's medical care, Dr. Conroy testified that she saw Ms.Thompson at the doctor's office with Jessee twice over a two-year period, that Ms. Thompson never called to check on Jessee's medical status, and that "[Ms. Thompson] didn't know when the appointment was and who his doctor was or what medications he was on[.]" Dr. Conroy further stated that Ms. Thompson did not seem to understand Jessee's health issues, and she had serious reservations about returning Jessee to his mother's care.
Ms. Cindy Van Camp, a child service coordinator and an early intervention specialist with the PACT program, testified that she had worked with Jessee and his mother on several occasions prior to the hearing. During monthly hour-long sessions, Ms. Van Camp demonstrated a number of activities for Ms. Thompson and instructed her to perform the activities with Jessee as part of his therapy. When asked whether Ms. Thompson was following through with the therapies, Ms. Van Camp stated,
I would have a hard time saying that she was. I could not say, no she's not. But, I, she has a hard time understanding exactly where he is and where he needs to go with some of the things. There are some of the things she's followed through with fairly well, um, but things like, there's some things that she doesn't quite understand and doesn't really ask a lot of questions about.
Ms. Van Camp also believed Ms. Thompson's expectations for Jessee were "very out of whack for what he is able to do and for his condition."
Ms. Van Camp testified that Ms. Thompson was "preoccupied with doing other things during our visits" and was not taking full advantage of the PACT program's services. According to Ms. VanCamp, Ms. Thompson failed to attend review sessions in January and June of 2001 regarding Jessee's progress, even though she had received written notice of the session dates and times. Ms. Thompson also received complete copies of the six-month plans for Jessee (including goals, contact information for all his therapists, and so forth), yet remained unable to understand and apply the techniques she was shown during her sessions with Ms. Van Camp. Ms. Van Camp expressed concern and reservations about Jessee's safety and progress if he was returned to his mother's care.
Ms. Cindy Caudill, Jessee's foster mother, testified that she is a licensed physical therapy assistant and has taken care of Jessee since November of 1999. Ms. Caudill testified at length regarding Jessee's developmental limitations, as well as the therapies he is receiving. Ms. Caudill stated that she and her husband have two children and wish to adopt Jessee because they love him and "[h]e's a part of our family now and we ah, want very much to take care of Jesse [sic] and see that his needs are met." Ms. Thompson was also permitted to testify. She stated that she loves Jessee and wants to be a part of his life. She testified regarding his physical problems and the services she and Jessee have taken part in. At the time of trial, Ms. Thompson was employed as a waitress and had a support system of family nearby. Her parents sometimes helped her financially, and she had an appropriate home for herself and her children to live in. Ms. Thompson indicated that she had complied with the trial court's requests, attended every visitation she was given, and was prepared to be a full-time mother to Jessee. Ms. Thompson admitted having past problems with drug abuse and acknowledged that she pleaded guilty to a count of felony child abuse involving Jessee. She also admitted that she had a pending charge of shoplifting, for which she had hired an attorney. On cross-examination, Ms. Thompson indicated she had some shortcomings, but asserted that she loved Jessee and was ready to raise him.
At the conclusion of the evidence, the trial court made the following pertinent findings of fact:
5. Jessee Lee Thompson was placed in the custody of the Rowan County Department of Social Services on April 1, 1999; the juvenile was adjudicated abused, neglected and dependent on or about August 6, 1999; the juvenile has remained continuously in foster care for the past thirty-one months.
6. The respondent mother neglected the juvenile in that on August 6, 1999 the juvenile was adjudicated to be an abused, neglected and dependent child within the meaning of G.S. 7B-101(1)(15)(9); that the juvenile sustained a severe head injury while in the care of the mother, either inflicted by her or someone else while the mother was asleep; Ms. Thompson pled guilty in 99 CRS 4932 to felony child abuse and was convicted of felony child abuse.
7. Jessee Thompson is a fragile child with special needs that will require constant monitoring, treatment and adjustment for the rest of his life. His head injury resulted in delayed speech and motor development and in continuing seizures requiring him to take the medication Phenobarbital. He will continue to need speech therapy, physical therapy, and occupational therapy for many years.
8. The Respondent Mother has taken some steps to comply with Orders of the Court and recommendations of the RCDSS; she has completed parenting classes and submitted to a psychological evaluation; Ms. Thompson has maintained visitation with her son; her home is physically adequate; she has participated in the PACT program.
9. Even though the DSS in cooperation with various medical service providers has attempted to give appropriate training to respondent mother on the therapies needed to address Jessee's ongoing special needs, she has shown little to no ability to grasp these therapies, either in her understanding or in practice.
10. Jessee Lee Thompson, due to his injuries, is a special needs child that will require constant daily attention, including speech and motor therapy; the child will require a stable environment to make progress; monitoring by his care giver will be important as to his progress or lack thereof; that an unstable environment could be detrimental to the child; Jessee will need intensive care to meet developmental milestones and Connie Thompson, as shown during in home PACT services, has a hard time understanding Jessee's needs and knowing his limitations; Connie Thompson has not demonstrated that she is capable of providing the level of care that Jessee will require.
11. The Respondent mother 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 within 12 months in correcting those conditions which led to the removal of the juvenile.
12. Connie Thompson is living with her 17-year-old son in her home. There have been physical altercations in the home between these two. Jessee needs a stable and quiet home and because of his head injury he is especially fragile.
13. Connie Thompson continues to rely on Oxycontin, a powerful and dangerous prescription drug for pain. She takes as many as three pills per day. She has not sought an alternative medication.
14. Jessee Thompson is now living in a therapeutic foster home and is receiving the speech therapy, physical therapy, and occupational therapy that he will continue to need. His foster mother, Cindy Caudill, is a licensed physical therapy assistant employed with Gentiva Health Services.
15. The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the Respondent mother for a continuous period of six months next preceding the filing of the petition, has willfully failed for such period to pay a reasonable portion of the costs of care for the juvenile although physically and financially able to do so.
* * * *
18. The Court takes judicial notice of all the Orders, attached Court Reports and attached documents as set forth in the Rowan County Juvenile Court proceedings and all of the findings of fact, which includes all Court Reports incorporated by reference and attached documents and contained in all of the Court Orders in that Juvenile Proceeding and the Petitions filed therein, if incorporated, are herein adopted by this Court as findings of facts in this proceeding and incorporated herein by reference and adopted by the Court as findings of fact as if set forth herein in full.
After weighing the evidence, the trial court found the existence of three statutory grounds which supported termination of Ms. Thompson's parental rights; namely, N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (3) (2001):
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.
(2) The 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.
(3) The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, 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.
During the dispositional phase of the hearing, the trial court determined that termination of Ms. Thompson's parental rights was in Jessee's best interests. On 1 November 2001, the trial court entered an order terminating the parental rights of Ms. Thompson. She subsequently appealed.
On appeal, Ms. Thompson argues that the trial court erred in finding (I) that grounds existed for termination of her parental rights with respect to Jessee Thompson; and (II) that it was in Jessee's best interests that her parental rights be terminated. For the reasons set forth herein, we disagree with respondent's arguments and affirm the order of the trial court.
Grounds for Termination
A petition for termination of parental rights must be carefully considered in light of all the circumstances and with the child's best interests firmly in mind. "Although severing parental ties is a harsh judicial remedy, the best interests of the children must be considered paramount." In re Adcock, 69 N.C. App. 222, 227, 316 S.E.2d 347, 350 (1984). Termination of parental rights is a two-step procedure. N.C. Gen. Stat. §§ 7B-1109 and -1110 (2001). During the initial adjudication phase of the trial, the petitioner seeking termination must show by clear, cogent, and convincing evidence that grounds exist to terminate parental rights. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997); N.C. Gen. Stat. § 7B-1111(b). A finding of any one of those grounds is sufficient to support termination of parental rights. In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322-23 (1988). If the petitioner succeeds in establishing the existence of any one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111, the trial court moves to the second — or dispositional — stage, where it determines "whether it is in the best interests of the child to terminate the parental rights." Young, 346 N.C. at 247, 485 S.E.2d at 615. See also N.C. Gen. Stat. § 7B-1110(a); and In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001).
"The standard for 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 conclusions of law." In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984). See also In re Huff, 140 N.C. App. 288, 536 S.E.2d 838 (2000), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). If the petitioner meets its burden, and the trial court's findings of fact support any one of the grounds in N.C. Gen. Stat. § 7B-1111, we should affirm the order terminating the parent's rights. See In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985) (stating this standard with regard to N.C. Gen. Stat. § 7A-289.32 (1995), which was repealed by N.C. Sess. Laws 1998-202, s. 6, effective 1 July 1999; see now N.C. Gen. Stat. § 7B-1111 (2001)).
In the present case, the trial court concluded there were three grounds for terminating Ms. Thompson's parental rights: N.C. Gen. Stat. § 7B-1111(a)(1) (abuse or neglect of the juvenile), -1111(a)(2) (willfully leaving the juvenile in foster care for over twelve months without showing reasonable progress toward correcting the conditions which led to removal of the juvenile from the home), and -1111(a)(3) (willfully failing to pay a reasonable portion of the cost of care for a juvenile who has been placed in custody, though a parent is physically and financially able to pay).
N.C. Gen. Stat. § 7B-1111(a)(2) permits termination of parental rights when the parent fails within twelve months to make reasonable progress toward rectifying the conditions which led to the initial removal of the child and his placement in foster care. Ms. Thompson argues the trial court erred in finding that she failed to make reasonable progress on her reunification plan after Jessee was adjudicated abused, neglected, and dependent. Specifically, she argues several of the trial court's findings of fact were unsupported by the evidence and that there was no finding of abusive or neglectful behavior at the time of the termination hearing. We disagree.
The record clearly indicates that Jessee was placed in the custody of DSS in April 1999, when he was only two and one-half months old. Thus, by the time the termination of parental rights hearing took place in August 2001, Jessee had been in foster care for over two years. The trial court found that, at the time of the termination hearing, Ms. Thompson had accomplished several of the goals in the court order and loved her son, yet she still failed to demonstrate that she could care for Jessee's special needs on a permanent, full-time basis. Though she attended PACT sessions, she did not get a list of Jessee's goals and did not follow up with Ms. Van Camp when several months passed without a regular session. Ms. Thompson missed review hearings in January and June of 2001 without a reasonable excuse. When questioned, Ms. Thompson was uncertain of Jessee's then-current goals and admitted that she did not know who Jessee's speech therapist or his occupational therapist was.
Additionally, Ms. Thompson does not understand Jessee's developmental limitations and does not appear capable of providing the special care her son needs. The PACT program consisted of one hour-long session per month in Ms. Thompson's home, during which Ms. Van Camp demonstrated therapies that Ms. Thompson was to learn and perform with Jessee. The evidence at the hearing indicates that Ms. Thompson's home was full of people, that she was distracted with cooking and presenting the children with gifts, and that she did not fully utilize or understand the PACT program's services. The PACT program provided Ms. Thompson with a written report which detailed Jessee's goals for the following six months and contained a complete list of his therapists, along with their contact information. Despite having this information, Ms. Thompson did not actively participate in Jessee's therapy and remained unable to render the care he needs. At the time of the hearing, Ms. Thompson continued to take Oxycotin, still allowed her oldest son to live with her in the home, and could not deal with Jessee's special needs.
We have previously stated the burden for a parent seeking to show reasonable progress:
Extremely limited progress is not reasonable progress. See Bishop, 92 N.C. App. at 670, 375 S.E.2d at 681. Further, respondent has not shown a "positive response" to DSS's efforts to help her in improving her situation. Implicit in the meaning of positive response is that not only must positive efforts be made towards improving the situation, but that these efforts are obtaining or have obtained positive results.
In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995). This standard operates as a safeguard for children. If we did not require parents to show both positive efforts and positive results, "a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose." Id. at 700, 453 S.E.2d at 225. See also In re Brim, 139 N.C. App. 733, 743, 535 S.E.2d 367, 373 (2000).
Similarly, while Ms. Thompson has attempted to improve her situation and become an appropriate parent to Jessee, the fact remains that she lacks the ability to address Jessee's special needs on a permanent basis. Although she clearly loved her son and made some progress toward reunification, she remained unable to understand his developmental limitations and could not adequately address those needs on her own. The trial court considered the testimonies of Ms. Parker, Ms. Van Camp, and Dr. Conroy, which indicated that Ms. Thompson made efforts to deal with Jessee's special needs, but repeatedly demonstrated a lack of understanding and ability to cope with her son's situation. The testimony further demonstrated that Jessee was receiving proper care and attention from his foster family. The trial court concluded that Ms. Thompson had not made reasonable progress within the meaning of N.C. Gen. Stat. § 7B-1111(a)(2). We hold that the trial court's conclusion is fully supported by the findings of fact, which are in turn supported by clear, cogent, and convincing evidence. Respondent's first assignment of error is overruled.
We have considered the other two grounds enumerated by the trial court as additional grounds for termination of Ms. Thompson's parental rights and note that they were also supported by the evidence. However, because a finding of any one of the separately enumerated grounds is sufficient to support a termination, In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990), we need not discuss them here.
Best Interests
Ms. Thompson also argues the trial court erred in determining it was in Jessee's best interests to terminate her parental rights. We do not agree. "Once a petitioner meets its burden of proof at the adjudicatory stage, the court's decision to terminate the parental rights is discretionary." In re Parker, 90 N.C. App. 423, 430, 368 S.E.2d 879, 884 (1988). See also In re Leftwich, 135 N.C. App. 67, 518 S.E.2d 799 (1999); and In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).
N.C. Gen. Stat. § 7B-1110(a) balances the need for stability in a child's life with the desire to keep the biological family intact. Section 7B-1110(a) states that
[s]hould the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.
(Emphasis added.) Here, the trial court's initial goal was reunification. As time passed, Ms. Thompson complied with many of the trial court's requirements, but was still unable to properly care for Jessee's special needs. This forced the trial court to order that Jessee remain in the custody of DSS and his foster family. The trial court heard testimony from a number of sources and gained an understanding of both Jessee's special needs and Ms. Thompson's inability to address or appreciate those needs. In making its decision, the trial court considered all the evidence, accorded more weight to the evidence presented by the petitioner, and made findings of fact that supported termination of Ms. Thompson's parental rights.
We recognize that "the fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody [is] that the best interest of the child is the polar star." Montgomery, 311 N.C. at 109, 316 S.E.2d at 251. Jessee has improved in all facets of his life since leaving Ms. Thompson's care. He has been happy in his foster placement, has had an opportunity to bond with his brother, and continues to make positive progress in his speech, physical, and occupational therapies. Ms. Thompson has had over two years in which to make reasonable progress, but has failed to make the progress necessary to reunite with Jessee. While the decision to terminate a parent's rights should never be made lightly, it is not in the best interests of the children of abuse and neglect to require that they remain indefinitely in foster care in hopes of eventual reunification with a parent.
The sum total of the evidence supports the trial court's findings of fact and conclusions of law; moreover, there is nothing in the record which requires us to upset the exercise of the trial court's discretion. See King v. Allen, 25 N.C. App. 90, 92, 212 S.E.2d 396, 397, cert. denied, 287 N.C. 259, 214 S.E.2d 431 (1975) (stating that so long as there is competent evidence to support the trial court's findings of fact, its determination regarding the child's best interests cannot be upset absent a manifest abuse of discretion).
We have carefully reviewed respondent's remaining arguments and contentions and find them meritless. The trial court's order terminating the parental rights of Connie Thompson as to Jessee Lee Thompson is affirmed.
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).