Opinion
No. COA08-423.
Filed 7 October 2008.
Burke (04J3)
Appeal by respondent father from judgment entered 30 January 2008 by Judge Robert M. Brady in Burke County District Court. Heard in the Court of Appeals 25 August 2008.
Stephen M. Schoeberle for petitioner-appellee Burke County Department of Social Services. Robin E. Strickland for respondent-appellant father. Michael Casterline for respondent-appellee mother. Alexander M. Pearce, guardian ad litem attorney advocate for the minor child.
On 9 January 2004, Burke County Department of Social Services ("DSS") filed a petition alleging that the minor child T.R.C. was neglected. At a hearing on 29 April 2004, T.R.C. was adjudicated dependent in an order which neither respondent-appellant mother ("mother") nor respondent-appellant father ("father") resisted. Custody of T.R.C. was continued with mother on the condition that father, a convicted and registered sex offender, have no unapproved, unsupervised contact with T.R.C. Over the course of several review hearings, the trial court repeatedly found mother and father to be in violation of its orders. Consequently, placement of T.R.C. was transferred at least seven times, and on two occasions the court removed T.R.C. from mother's custody. On 2 March 2006, T.R.C. was removed from mother's custody for the last time, and custody was transferred to DSS. Since that time, T.R.C. has been in foster care almost continuously. In an order filed 14 August 2007, the trial court ceased reunification efforts with the parents and made adoption the permanent plan for T.R.C. DSS filed a verified motion to terminate parental rights on 19 September 2007, which was heard at a hearing on 3 January 2008. At the hearing, the trial court found though father had the ability to pay some amount of support in compliance with the court's order on 9 November 2004, he willfully failed to do so. The trial court also found that both parents willfully left T.R.C. in foster care or placement outside the home for more than twelve months and failed to make reasonable progress in correcting the conditions that led to the removal of the child. Specifically, the trial court found that father had repeatedly refused to comply with court orders meant to protect T.R.C., was unable to maintain a stable living situation, and was incarcerated at the time of the hearing. Based on this evidence, the trial court entered an order terminating the parental rights of both parents. Father entered his notice of appeal on 1 February 2008. Mother's written notice of appeal was filed 29 February 2008.
DSS has moved to dismiss mother's appeal on the grounds that the written notice of appeal, though signed by mother's counsel, was not properly signed by mother as required by Rule 3A(a) of the Rules of Appellate Procedure. We agree and grant DSS's motion.
As to father's arguments, the record on appeal contains seven assignments of error. Father's brief discusses only three of these assignments of error, and the rest are therefore deemed abandoned according to Rule 28. N.C. R. App. P. 28(a) (2008).
Father first argues that the trial court lacked subject matter jurisdiction to enter a termination of parental rights ("TPR") order because the trial court's initial adjudication of T.R.C. as dependent, nearly four years prior to its TPR order, was defectively based on the DSS petition which alleged only neglect. "In reviewing a question of subject matter jurisdiction, our standard of review is de novo." In re J.A.P., ___ N.C. App. ___, ___, 659 S.E.2d 14, 16 (2008) (citing In re Soc'y for the Pres. of Historic Oakwood v. Bd. of Adjustment, 153 N.C. App. 737, 571 S.E.2d 588 (2002)).
The Juvenile Code specifically states the breadth of the trial court's subject matter jurisdiction regarding TPR hearings. N.C.G.S. § 7B-1101 provides:
The court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion.
N.C. Gen. Stat. § 7B-1101 (emphasis added). Additionally, we point to a principle recently enunciated by this court: [T]he trial court may make such a finding [that grounds for termination of parental rights exist] in the N.C.G.S. § 7B-1109 adjudicatory hearing without having previously adjudicated the juvenile abused or neglected in a prior abuse, neglect, or dependency action. See In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 69 (2002) ("An adjudicatory hearing on abuse and neglect allegations is not a condition precedent to a termination hearing. . . . [S]uch a hearing on abuse and neglect may well [be] merely redundant with parts of [a] termination hearing.").
In re R.B.B., ___ N.C. App. ___, ___, 654 S.E.2d 514, 518 (2007), disc. review denied 362 N.C. 235, 659 S.E.2d 738 (2008). Father argues, and it is well established, that "subject matter jurisdiction may be raised at any time by the parties or by the court ex mero motu." In re J.D.S., 170 N.C. App. 244, 248, 612 S.E.2d 350, 353 (citations omitted), cert. denied, 360 N.C. 64, disc. review denied, 360 N.C. 176, 623 S.E.2d 584 (2005). Father also correctly asserts that, in a juvenile case, a trial court may lack subject matter jurisdiction where it has allowed an amended petition which sufficiently changes the nature of the condition upon which the petition is based so as to deprive the respondent of sufficient notice. See In re D.C., 183 N.C. App. 344, 644 S.E.2d 640 (2007) (where DSS alleged dependency but proceeded on a theory of neglect at adjudication). However, the language of N.C.G.S. § 7B-1101, along with our holdings in Faircloth and In re R.B.B., illustrate that a trial court's jurisdiction over a TPR hearing is not necessarily dependent on the court's jurisdiction in a prior adjudication hearing. Our Supreme Court has recognized that "[e]ach termination order relies upon an independent finding that clear, cogent, and convincing evidence supports at least one of the grounds for termination under N.C.G.S. § 7B-1111. . . . Simply put, a termination order rests on its own merits." In re R.T.W., 359 N.C. 539, 553, 614 S.E.2d 489, 497 (2005) superceded by statute on other grounds, Act of Aug. 23, 2005, ch. 398, sec. 12, N.C.Sess. Laws 1455, 1460-61, as recognized in In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).
In a juvenile case, the initial order of disposition and the adjudication order upon which it is based may be appealed to this Court. N.C. Gen. Stat. § 7B-1001(a)(3) (2005). N.C.G.S. § 7B-1001 provides:
(a) In a juvenile matter under this Subchapter, appeal of a final order of the court in a juvenile matter shall be made directly to the Court of Appeals. Only the following juvenile matters may be appealed:
. . . .
(3) Any initial order of disposition and the adjudication order upon which it is based.
. . . .
(6) Any order that terminates parental rights or denies a petition or motion to terminate parental rights.
(b) Except for orders covered in subdivision (a)(5) of this section, notice of appeal shall be given in writing by a proper party as defined in G.S. 7B-1002 and shall be made within 30 days after entry and service of the order in accordance with G.S. 1A-1, Rule 58.
N.C. Gen. Stat. § 7B-1001. Thus, in accordance with N.C.G.S. § 1A-1, Rule 58 and N.C.G.S. § 7B-1001(b), notice of appeal regarding the initial adjudication order must be given within thirty days after entry and service of the order. Similarly, notice of appeal regarding the order terminating parental rights must be given within thirty days after entry and service of that order. Accordingly, though the initial adjudication hearing and the N.C.G.S. § 7B-1109 adjudicatory hearing act as interrelated stages of the same continuous juvenile case, these orders are subject to our review only when timely and properly appealed according to N.C.G.S. § 7B-1001. See N.C.R. App. P. 3A(a) (requiring compliance with Chapter 7B of the General Statutes of North Carolina in taking appeal to this Court).
Here, the motion to terminate parental rights was filed on 19 September 2007. T.R.C. has been in the legal custody of DSS since 2 March 2006 and in actual custody of foster parents since 21 December 2006. The court's order terminating parental rights was entered 3 January 2008 and filed 30 January 2008. Father entered a notice of appeal of the TPR order 1 February 2008. Because father failed to enter a notice of appeal within thirty days after entry of the trial court's 29 April 2004 initial adjudication order, issues relating to that order are not properly before us.
Father next argues that the trial court erroneously concluded there was sufficient evidence to support its order for termination of parental rights. A termination of parental rights proceeding is conducted in two phases: (1) an adjudication phase that is governed by N.C.G.S. § 7B-1109 (2005) and (2) a disposition phase that is governed by N.C.G.S. § 7B-1110 (2005). See In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5 (2004). During the initial adjudication stage, petitioner has the burden of proving by clear, cogent, and convincing evidence the existence of one or more of the statutory grounds for termination set forth in N.C.G.S. § 7B-1111. Id. A trial court need find only one statutory ground for termination before proceeding to the dispositional phase of the hearing. N.C. Gen. Stat. § 7B-1111(a) (2005); In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). The standard of appellate review is "whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law." In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). If DSS meets its burden of proving at least one ground for termination, the trial court proceeds to the dispositional phase and must consider whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a); Shermer at 285, 576 S.E.2d at 406. The trial court may then terminate parental rights upon a finding that it would be in the best interests of the child to do so. Id. at 285, 576 S.E.2d at 406-07. We review the trial court's decision regarding the child's best interests for an abuse of discretion. Id. See also In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). Pursuant to those grounds listed in N.C.G.S. § 7B-1111, a court may terminate parental rights upon a finding that:
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 [; or]
[t]he 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.
N.C. Gen. Stat. § 7B-1111(a)(2) and (3). Here, father contends that there was insufficient evidence to support either of these statutory grounds for termination of his parental rights. We disagree.
We first address evidence of father's failure to make reasonable progress in correcting the conditions that led to the removal of the child. "Willfulness" under N.C.G.S. § 7B-1111(a) "means something less than willful abandonment," and "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). Willfulness may be found where a parent has made some attempt to regain custody of the child but has failed to exhibit "reasonable progress or a positive response toward the diligent efforts of DSS." Id. at 440, 473 S.E.2d at 398; see In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995) ("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."). This Court has held that "[e]xtremely limited progress is not reasonable progress." Nolen, at 700, 453 S.E.2d at 224-25. 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." Id. at 700, 453 S.E.2d at 225; see also In re B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004). Accordingly, the standard for reasonable progress is high. See In re Bishop, 92 N.C. App. 662, 70, 375 S.E.2d 676, 681 (1989) (holding the trial court's finding was supported by clear, cogent, and convincing evidence where "although respondent ha[d] made some progress in the areas of job and parenting skills, such progress ha[d] been extremely limited"); see also In re Fletcher, 148 N.C. App. 228, 235-36, 558 S.E.2d 498, 502 (2002) (upholding termination of parental rights order where "even though the respondent mother made some efforts, the evidence support[ed] the trial court's determination that she did not make sufficient progress in correcting conditions that led to the child's removal").
In this case, father concedes that T.R.C. was in foster care for 12 months but disputes the trial court's finding that he willfully failed to show reasonable progress under the circumstances to correct the conditions which led to the removal of the juvenile. Father contends that he "substantially complied" with the trial court's orders requiring him to complete sex offender counseling, pay for mother's non-offender counseling, comply with probation, and execute releases of information. However, father admits that he did violate the court's order that he have no unapproved unsupervised contact with T.R.C.
In its order following the TPR hearing, the trial court made, inter alia, the following findings of fact:
8. [Father] is a convicted and registered sex offender, having taken indecent liberties with a live-in girlfriend's daughter. In spite of father's apparent compliance with sex-offender-specific treatment, he has not seemed to understand why his inappropriately unsupervised contact with the minor child is inappropriate. He was arrested on 29 August 2007 for allegedly attempting to be an accessory after the fact to a homicide in which one of the alleged principals is his son. He remains in jail awaiting trial on that charge.
10. [Father]'s probation for sex offense has expired. He relies upon others for a residence, last residing with a girlfriend. . . . He has moved on multiple occasions. He has denied residing with [mother] in the past, but one of the addresses that he gave his probation officers is one of [mother]'s former addresses. He is over-bearing, domineering, and manipulative. His manipulation of [mother] and her willingness to be manipulated have brought the case to this point.
11. This case began as a result of the criminal conduct of [father] and the poor choices by [mother]. The situation is no different now than it was then. The parent's efforts to achieve reunification of the minor child with at least her mother have been marginal at best.
Here, the expiration of father's probation, along with his participation in sex-offender counseling may, as he contends, reflect both positive efforts and positive results on his part. However, there was ample evidence to support the court's conclusion under N.C.G.S. § 7B-1111(a)(2) that father had willfully left T.R.C. in foster care for more than 12 months without making reasonable progress under the circumstances towards correcting the conditions which led to her removal. Here, the conditions which in large part led to the removal of T.R.C. were simply father's refusal to comply with court orders that were issued for the safety and protection of the minor child. In addition to these findings, the trial court also found that father was over-bearing, domineering, and manipulative, and that his continued manipulation of mother had helped bring the case to the point where grounds for termination of parental rights existed. While the respondent's demeanor is by no means a dispositive issue in a TPR hearing, we note the breadth of discretion traditionally afforded to the trier of fact:
All of the findings of fact regarding respondent's in-court demeanor, attitude, and credibility, including [his] willingness to reunite [him]self with [his] child, are left to the trial judge's discretion. Therefore, any of the findings of fact regarding the demeanor of any of the witnesses are properly left to the determination of the trial judge, since [he] had the opportunity to observe the witnesses.In re J.W., 173 N.C. App. 450, 461, 619 S.E.2d 534, 543 (2005) (quoting Oghenekevebe, 123 N.C. App. at 440-41, 473 S.E.2d at 398-99). As the trier of fact, the trial court was entitled to assign weight to the evidence as it deemed appropriate. In re Oghenekevebe, 123 N.C. App. at 439, 473 S.E.2d at 397. Here, the record reflects that there was competent evidence in support of the trial court's finding that there had been no reasonable progress. The presence of some contrary evidence cannot overcome the trial court's findings. See id. at 439, 473 S.E.2d at 397-98 ("If there is competent evidence to support the trial court's findings of fact and conclusions of law, the same are binding on appeal even in the presence of evidence to the contrary."). The record reflects that there existed clear, cogent, and convincing evidence supporting the trial court's determination that there had been no reasonable progress as required by N.C.G.S. § 7B-1111(a)(2). The trial court's findings thus supported its conclusion that sufficient grounds existed for the termination of father's parental rights.
Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground of dependency found by the trial court. N.C. Gen. Stat. § 7B-1111(a); In re R.B.B., ___ N.C. App. at ___, 654 S.E.2d at 520. See also In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985) ("If either of the[] grounds [for the termination of parental rights] is based upon findings of fact supported by clear, cogent and convincing evidence[,] the order appealed from should be affirmed.").
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).