In re L.G.M.W.

IN THE MATTER OF: L.G.M.W.

No. COA22-419

Court of Appeals of North Carolina

February 21, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 10 January 2023.

Appeal by respondent-father from order entered 10 February 2022 by Judge Larry Leake in Mitchell County No. 20 JT 01 District Court.

Hockaday & Hockaday, P.A., by Daniel M. Hockaday, for petitioner-appellee Mitchell County Department of Social Services.

Parker Poe Adams &Bernstein LLP, by Maya Madura Engle, for guardian ad litem.

Leslie Rawls for respondent-appellant father.

ZACHARY, JUDGE

Respondent-Father appeals from the trial court's order terminating his parental rights to his minor child "Laura."^[1] Respondent-Father challenges many of the trial court court's findings of fact, as well as the court's conclusion that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2021) to terminate his parental rights for willfully failing to make reasonable progress toward correcting the conditions that led to Laura's removal from the home in which she lived with her mother and her mother's relatives. After careful review, we affirm.

Background

I. Events Preceding Termination of Parental Rights

Laura was born in November 2018. When Laura was approximately one year old, Petitioner-Appellee Mitchell County Department of Social Services ("DSS") received a report that Laura and her mother, Tabitha, were residing with Laura's maternal relatives in a mobile home in which "there was drug use" and "no running water[.]" However, investigations ceased after DSS "was informed that Tabitha and [Laura] did not reside in th[at] home[.]"

On 6 January 2020, DSS received a report that Tabitha's mother and sister had found Tabitha deceased in her bedroom; Laura was in the room when Tabitha's body was discovered. The law enforcement officer who responded to the call described the environment in which he found Tabitha:

[The] single wide mobile home was extremely unsanitary, with a foul odor contributed to filth. The floor of the residence was rotted out in numerous places, including directly in front of the entry door. I was directed to the back bedroom and observed Tabitha's body on the floor, face up, with her legs folded back under her torso. Several hypodermic needles, a tan powdery substance, and numerous spoons were discovered on the dresser near Tabitha's body. One needle contained a red substance, possibly blood.

That same day, DSS filed a petition alleging that Laura was a dependent juvenile because, inter alia, Laura's maternal relatives were not suitable for placement. DSS further alleged that at the time of the petition's filing, Laura's putative father, Respondent-Father, "had little to no involvement with [Laura] and paternity had not been established." Later that day, the trial court entered an order granting DSS nonsecure custody of Laura. Shortly after DSS removed Laura from the home in which she resided with her mother, Laura tested positive for methamphetamine and amphetamine.

Respondent-Father submitted to paternity testing on 6 January 2020, which indicated a 99.99% probability that he was Laura's biological father. He explained to DSS that he did not know that he was potentially Laura's father until approximately one month before Tabitha's death, and that he "initially questioned" this information because "he and Tabitha had only had one sexual encounter." However, after establishing his paternity of Laura, Respondent-Father advised the trial court that he was "willing to enter into a DSS case plan to work towards reunification" with Laura. When DSS filed the dependency petition, Respondent-Father was living in the home of his adoptive mother, Maude Garland; was on supervised probation due to his conviction for misdemeanor breaking or entering; and was participating in substance abuse and mental health treatment at October Road, a behavioral health and substance use treatment provider.

On 14 February 2020, the dependency petition came on for hearing in Mitchell County District Court. By its adjudication and interim disposition order entered on 5 March 2020, the trial court adjudicated Laura as dependent. The court ordered that Laura remain in the legal custody of DSS with placement in the discretion of DSS. The court further ordered that Respondent-Father "enter into a DSS case plan prior to the dispositional hearing."

In a disposition order entered on 30 March 2020, the court designated the primary plan of care for Laura as reunification with Respondent-Father. The trial court also adopted Respondent-Father's case plan and ordered that Respondent-Father comply with the plan's provisions. Pursuant to his case plan, Respondent-Father was required to remain drug free; submit to drug screens; seek treatment for his emotional and substance use issues; comply with the terms of his probation; participate in parenting classes; communicate with DSS; and authorize the release of his medical records to DSS in order to keep the agency apprised of his progress with his treatment.

By late July 2020, Respondent-Father had made progress in the areas of substance abuse and parenting, in that he received negative drug screens and developed a bond with Laura. The trial court therefore authorized a trial placement of Laura with Respondent-Father in the home of Ms. Garland. However, roughly one month into the trial placement, Respondent-Father tested positive for methamphetamine; DSS consequently removed Laura from the home and placed her into foster care.

Over the next six months, Respondent-Father's substance abuse continued and his mental health deteriorated. Of the 12 required drug screens since August 2020, Respondent-Father failed to appear for testing four times, once received a positive result for illegal substances, and once refused to submit to the screen, admitting that he would test positive for methamphetamine. Respondent-Father also stopped participating in therapy after changing treatment providers in September 2020, and he was involuntarily committed for a five-day stay at Copestone, a psychiatric facility, in January 2021. On 23 June 2021, Respondent-Father was arrested on charges of assault with a deadly weapon with intent to kill, larceny of firearms, and possession of a firearm by a felon. The trial court changed the primary plan of care for Laura to adoption, with a concurrent plan of reunification with a family member.

On 7 October 2021, DSS filed a petition to terminate Respondent-Father's parental rights to Laura, alleging that Laura was dependent and that Respondent-Father willfully left her in foster care or a placement outside the home for more than 12 months without showing to the satisfaction of the court that he had made reasonable progress under the circumstances toward correcting the conditions that led to her removal from the home in which she resided with her mother. See id. The termination petition came on for hearing in Mitchell County District Court on 13 January 2022.

II. Termination of Parental Rights Order

By order entered on 10 February 2022, the trial court terminated Respondent-Father's parental rights to Laura on the ground that Respondent-Father "willfully left the juvenile in foster care or placement outside the home for more than twelve (12) months without showing to the satisfaction of the [c]ourt that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile as prescribed by" N.C. Gen. Stat. § 7B-1111(a)(2).

The trial court made numerous findings of fact in support of its conclusion that Respondent-Father willfully failed to make reasonable progress pursuant to § 7B-1111(a)(2). The findings relevant to the instant appeal are contained within finding of fact 11, which first provides:

11. That the Court finds by clear, cogent and convincing evidence that [Respondent-Father] has willfully left [Laura] in foster care or placement outside the home for more than twelve (12) months without showing to the satisfaction to the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of [Laura] as prescribed by [ N.C. Gen. Stat. §] 7B-1111[(a)(2)]. The request to terminate parental rights for [Respondent-Father] is not based on the sole reason that [Respondent-Father] is unable to care for [Laura] on account of his poverty.

The trial court also detailed in finding 11 how Respondent-Father's progress with his case plan affected his reunification with Laura:

Initially, [Respondent-Father] made progress on the DSS case plan in that [Respondent-Father] took parenting classes and attended treatment to address his emotional and substance abuse issues. This progress resulted in the Court endorsing a trial home placement for [Laura] with [Respondent-Father] at the home of Maude Garland on 23 July, 2020.^[2]

Subsequent to the trial home placement, [Respondent-Father] reverted to a pattern of testing positive for controlled substances, testing positive for methamphetamines for both Mitchell County DSS and October Road in late August, 2020. As [a] result, [Laura] was removed from that home in late August, 2020 and placed in foster care.

Regarding Respondent-Father's behavior after DSS removed Laura from the trial home placement with him and placed her into foster care, the court found:

At that time, [Respondent-Father]'s response was to attack October Road. He declined to follow their treatment plan[;] . . . has since not initiated or

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