IN THE MATTER OF:
GREGORY GRAY, JR., Cabarrus County
GREGORY S. GRAY, 97 J 97
MEGAN GRAY
Cabarrus County Department of Social Services, by Kathleen
Arundell Widelski, for petitioner-appellee.
Scott C. Robertson, for the respondent-appellant.
WYNN, Judge.
This appeal arises from respondent father's challenge to the
trial court's termination of his parental rights to his three minor
children.
(See footnote 1)
The issues on appeal are whether the trial court: (I)
erred in finding that respondent had neglected the juveniles
pursuant to N.C. Gen. Stat. § 7B-101(15); (II) erred in finding
that respondent failed to contribute toward the cost of care in the
six months preceding the filing of the petition; and (III) abused
its discretion in determining that it was in the best interest of
the children to terminate the parental rights of respondent. Weaffirm because the trial court's findings of fact support at least
one of the grounds for terminating parental rights under N.C. Gen.
Stat. § 7B-1111. See In re Swisher, 74 N.C. App. 239, 240, 328
S.E.2d 33, 35 (1985).
The facts pertinent to this appeal are essentially contained
in the trial court's findings of fact:
7. On December 29, 1999, the children were
adjudicated neglected as defined by N.C.G.S.
7B-101(15). The findings of fact contained in
the Adjudication Order are incorporated by
reference as findings of fact in this
termination order.
8. On July 9, 1997, the children were placed
in the custody of the CCDSS. The children
were adjudicated neglected on August 8, 1997.
The parents stipulated in the adjudication
order to the facts alleged in the petition.
The July 9, 1997 Petition and August 8, 1997
Adjudication Order are incorporated by
reference as findings of fact in this
termination order.
9. On January 20, 2000, a disposition hearing
was held. The findings of fact contained in
the Disposition Order of January 20, 2000 are
incorporated by reference as findings of fact
in this termination order.
10. On May 4, 2000, the court conducted a
review of the parents' progress and found the
parents had made no progress in addressing the
issues that led to the children's placement in
foster care. A permanency planning hearing
was held on May 25, 2000 and the CCDSS was
ordered to proceed with a termination of
parental rights against the parents.
11. Upon his incarceration, Mr. Gray was told
by Jane Cauthen and Jennifer Linn-Raby to
write the children and/or send cards, which
would be read to the children. Mr. Gray did
not do so.
12. Since October 29, 1999, the CCDSS has
expended $17,748.69 for the children's cost ofcare. Mr. Gray did not make any contributions
towards the cost of care during the time the
children have been in the CCDSS' custody.
13. Gregory Gray, Jr., is currently receiving
intensive therapy for issues related to
attachment. The child has engaged in
aggressive behaviors with peers and teachers.
He requires a one on one worker in the
classroom. The therapy works on helping the
child develop a bond; expressing his feelings
about his parents and developing ways to deal
with his anger.
14. Mr. Gray worked from April 1999 through
July 2000 installing car stereos. He made
from $100.00 to $300.00 on average but
sometimes did not earn anything. He also
earned money from the sale of illegal drugs.
He has earned $0.40 per day since his
incarceration. He has had two infractions
since being incarcerated.
15. The father continued to engage in
criminal activity resulting in new convictions
for Possession for Intent to Sell and Deliver
Marijuana and Maintaining a Dwelling for the
Purpose of the Sale of Drugs. He also was
violated on his probation case for Possession
with Intent to Sell and Deliver Cocaine and
Maintaining a Dwelling for the Purpose of the
Sale of Drugs and was incarcerated on July 19,
2000 to serve sentences of eight months. The
true copies of the defendant's convictions
were received into evidence and are
incorporated by reference.
15. The court takes judicial notice of the
court orders, court summaries and GAL reports
that were submitted into evidence and are part
of the child protective services juvenile
record in this matter [in] so far as they
contain additional and relevant information to
the termination issues and to that extent are
incorporated by reference.
17. This matter was not bifurcated and
adjudication and disposition was heard
together.
Based on the above findings of fact, the trial court concludedthat:
2. The children were removed from Mr. Gray's
care in October, 1999. Mr. Gray continued to
engage in criminal activity. He is currently
incarcerated in the N.C. Department of
Corrections. The possibility exists that Mr.
Gray can change upon his release. The
probability of the repetition of neglect is
greater. The children have been in care for
fifteen months and need a permanent home as
soon as possible. Mr. Gray is currently
unable to provide a permanent safe home for
the children.
3. Gregory Gray has neglected the children
defined in N.C.G.S. 7B-101 (a)(15). There is
a probability of the repetition of neglect
should the children be returned to his care.
4. Gregory Gray has failed to contribute to
the cost of the children's care in the six
months next preceding the filing of the
petition though financially and physically
able to do so. In the six months next
preceding the filing of the petition Mr. Gray
could have paid some amount greater than zero
towards the children's care.
5. Sufficient grounds exist to terminate the
parental rights of Gregory Gray based upon
clear, cogent and convincing evidence.
6. It is in the children's best interests to
terminate the parental rights of Gregory Gray,
father.
Accordingly, the trial court terminated the parental rights of
respondent. Respondent appeals.
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In North Carolina, Chapter 7B sets forth the procedural
requirements for the termination of parental rights; it requires
that the trial court make a two-stage inquiry. See N.C. Gen. Stat.
§ 7B-1110 (2001). First, in the adjudicatory stage, the trialcourt must determine whether the evidence clearly and convincingly
establishes at least one ground for the termination of parental
rights listed in N.C. Gen. Stat. § 7B-1111. See In re Blackburn,
142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). Second, if at
least one ground for termination is established at the adjudication
stage, the matter proceeds to the dispositional stage where the
trial 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.
N.C. Gen. Stat. § 7B-1110 (2001); See In re Carr, 116 N.C. App.
403, 448 S.E.2d 299 (1994) (holding that "the court may exercise
its discretion in the dispositional stage only after the court has
found that there is clear and convincing evidence of one of the
statutory grounds for terminating parent rights”).
“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 Ballard, 311 N.C.
708, 716, 319 S.E.2d 227, 232 (1984); 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).
Respondent first argues that the trial court erred in finding
that he has neglected his minor children pursuant to N.C. Gen.
Stat. § 7B-101(15) and that there is a probability of the
repetition of neglect should the children be returned to his care.
Termination of parental rights under the statutory grounds of
neglect provides that:
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.
N.C. Gen. Stat. § 7B-1111(a)(1) (2001). Under N.C. Gen. Stat. §
7B-101(15) (2001) a neglected child is
[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law . . . .
“A finding of neglect sufficient to terminate parental rights
must be based on evidence showing neglect at the time of the
termination proceeding.” In re Young, 346 N.C. 244, 248, 485
S.E.2d 612, 615 (1997). “[T]he trial court must admit and consider
all evidence of relevant circumstances or events which existed or
occurred either before or after the prior adjudication of neglect.”
In re Ballard, 311 N.C. at 716, 319 S.E.2d at 232-233.
The respondent argues that adjudication of neglect was based
on evidence that was presented against him and the biologicalmother, who has since relinquished her rights. Respondent further
argues that the first adjudication of neglect was based on past
circumstances that did not exist at the time of the January 2001
hearing.
“[A] prior adjudication of neglect may be admitted and
considered by the trial court in ruling upon a later petition to
terminate parental rights on the ground of neglect.” In re
Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). A trial
court in such cases must make an independent determination as to
whether grounds exist for termination at the time of the hearing.
Id. at 716, 319 S.E.2d at 233. Moreover, “[a]ny past circumstance
or conduct which could impact either the present or the future of
a child is relevant, notwithstanding the fact that such
circumstance or conduct did not exist or was not being engaged in
at the time of the custody proceeding.” Speagle v. Seitz, 354
N.C. 525, 531, 557 S.E.2d 83, 87 (2001), reh'g denied, 355 N.C.
224, 560 S.E.2d 138, cert. denied, 122 S. Ct. 2589, 70 U.S.L.W.
3656 (2002); Davis v. McMillian, ___ N.C. App. ___, ___ S.E.2d ___
(Aug. 6, 2002).
A review of the record and transcript shows each of the trial
court's findings are supported by clear, cogent and convincing
evidence. The trial court provided seventeen detailed findings of
fact. Five of these findings were incorporated from the 29
December 1999 adjudication order. The trial court also took
judicial notice of the court order summaries and Guardian ad Litem
reports that were submitted into evidence. We hold that the trialcourt properly considered both evidence of neglect by the parents
prior to losing custody of the children (including the prior
adjudication of neglect) as well as evidence of conditions since
that time showing a likelihood of neglect in the future.
At the termination hearing, Jane Cauthen, the child welfare
program manager with the Cabarrus County Department of Social
Services, who is the supervisor overseeing the case, testified that
the issues that led to the children being adjudicated neglected in
1997 were similar to the issues before the Court at the hearing on
18 January 2001. In 1997, the children were removed due to
conditions of the home and drug use by both parents. The twins
were born addicted to cocaine and the parents did not visit them
very much while they were in the hospital. She stated that
When the kids were brought in the second time,
conditions were similar in that the home
environment was injurious to their welfare,
they were not being properly supervised, the
drug activity was still a part of both
parents' life . . . It was different for [the
children] this time in that [the father] was
not using drugs but dealing drugs and having
drug activity in their home.
Ms. Cauthen also testified that she spoke periodically with
respondent after he was placed in the Department of Corrections.
She told him that he would not get visits from his children while
he was incarcerated but that he could write to the children or send
them cards. However, respondent did not correspond with the
children.
Moreover, Jennifer Lynn-Raby, a foster care social worker who
was assigned to the case of the three minor children, testifiedthat respondent asked
if the children could be brought to prison and
I told him that we couldn't do that; and he
said he had a letter and some cards for the
children and I told him the best thing he
could do was to make sure he contacted the
children by writing them or sending them
cards.
According to Ms. Lynn-Raby respondent never sent a letter or card
to the children during their second time in foster care.
Further, Dana Horn, a mental health therapist testified that
the oldest child suffers from a reactive attachment disorder which
is a developmental disorder that is acquired when a child is not
able to form an attachment or bond with a primary caregiver in the
first two years of their life. She testified that the child
has a lot of issues with attachment meaning I
don't want to trust the people out there: Mom
and Dad haven't been dependable, they haven't
been around, there's been fighting, there's
been drugs, its not safe. So he has been in
different placements, he's been back at Mom
and Dad's, he's had an inconsistent
environment from what I've read and as a
result has decided not to trust adults.
At the termination proceeding, respondent had the opportunity
to present evidence relating to before and after the adjudication
of neglect. Respondent testified, and presented some contrary
evidence, such as he had a fiancée and that they were both willing
to do whatever they had to do to reunite the children; he had not
done any drugs since 1998 and he had attended alcoholics anonymous
and narcotics anonymous. However, in considering all of the
circumstances, the evidence of neglect existing prior to removal of
the children from the home and the conduct of the respondent whilethe children were in foster care support the conclusion of the
trial court that at the time of the termination proceeding, the
children were neglected under N.C. Gen. Stat. § 7B-1111. At the
time of the termination hearing, the respondent had continued to
engage in drug activity that led to a new conviction and his
incarceration. In addition to respondent's failure to change his
lifestyle, the children suffered from their parent's neglect,
especially the oldest child, who was diagnosed with attachment
issues. We therefore conclude that the trial court's findings of
facts were based on clear, cogent, and convincing evidence and
thus, the trial court properly found that respondent had neglected
the minor children.
While it is dispositive that the record shows that at least
one of the grounds for termination of parental rights was met
(See footnote 2)
,
neglect, we observe further that the record supports the trial
court's finding that respondent failed to contribute to the cost of
care in the six months next preceding the filing of the petition
although he was financially and physically able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2001) provides that:
The [children] ha[ve] been placed in the
custody of a county department of social
services, a licensed child-placing agency, achild-caring institution, or a foster home,
and the parents, for a continuous period of
six months next preceding the filing of the
petition or motion, and ha[ve] willfully
failed . . . to pay a reasonable portion of
the cost of care for the [children] although
physically and financially able to do so.
“Under section 7B-1111(a)(3), the trial court is required to make
findings of fact concerning the parent's ability to pay and the
amount of the child's reasonable needs.” In re Anderson,___ N.C.
App. ___, 564 S.E.2d 599, 603 (2002).
In its findings of facts the trial court stated that:
12. Since October 29, 1999, the CCDSS has
expended $17,748.69 for the children's cost of
care. Mr. Gray did not make any contributions
towards the cost of care during the time the
children have been in the CCDSS' custody.
14. Mr. Gray worked from April 1999 through
July 2000 installing car stereos. He made
from $100.00 to $300.00 on average but
sometimes did not earn anything. He also
earned money from the sale of illegal drugs.
He has earned $0.40 per day since his
incarceration. He has had two infractions
since being incarcerated.
These findings of fact are sufficient because “[t]his Court
has held that under such circumstances, the trial court need not
make detailed findings as to the amount that would be 'reasonable'
to expect from respondent.” In re McMillon, 143 N.C. App. 402,
411, 546 S.E.2d 169, 175 (2001); see also In re Huff, 140 N.C. App.
at 293, 536 S.E.2d at 842. We likewise find that the record
supports the conclusion that respondent willfully failed to make
any financial contribution to the minor children despite having the
resources to do so.
Finally, we address whether the trial court abused itsdiscretion in determining that it was in the best interest of the
children to terminate the respondent's parental rights. After the
trial court has determined grounds exist for termination of
parental rights at adjudication, the court is required to issue an
order of termination in the dispositional stage, unless it finds
the best interests of the child would be to preserve the parent's
rights. See In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).
If the court determines 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. N.C.
Gen. Stat. § 7B-1110(a) (2001). As 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. 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).
Respondent argues that testimony at the hearing indicated that
the children would benefit from the family remaining together and
cites examples of respondent's love for his children as evidence
the trial court abused its discretion. However, the evidence
presented by the petitioner supports the trial court's conclusion
that termination of respondent's parental rights is in the
children's best interest. The record shows that respondent failedto comply with court orders, and to make adequate improvement in
the issues that led to the children's removal. Respondent
continued to engage in criminal activity after his children were
removed from his custody and was convicted of possession for intent
to sell and deliver marijuana and maintaining a dwelling for the
purpose of the sale of drugs. At the time of the termination
hearing, respondent was serving time for a probation violation for
those convictions. The record further shows that all of the
children have suffered from respondent's neglect, the oldest child
has been diagnosed with attachment issues and all three have
significant developmental delays.
"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),
which is the polar star by which the discretion of the court is
guided. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251
(1984). In the present case, there is competent evidence to
support 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. King v. Allen, 25
N.C. App. at 92, 212 S.E.2d at 397. Thus, we reject this
assignment of error.
For the reasons stated above, we affirm the trial court's
order of termination of respondent's parental rights.
Affirmed.
Judges HUDSON and CAMPBELL concur. Report per Rule 30(e).
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