Appeal by respondent from order entered 11 January 2001 by
Judge L. Suzanne Owsley in Caldwell County District Court. Heard
in the Court of Appeals 13 June 2002.
Elizabeth M. Spillman for petitioner-appellee Caldwell County
Department of Social Services.
Joseph C. Delk, III, for respondent-appellant.
MARTIN, Judge.
Respondent Betty Renee DeGuzman appeals from an order
terminating her parental rights with respect to her minor daughter,
Darianna Cheyenne DeGuzman. We affirm.
The Caldwell County Department of Social Services
(“petitioner” or “DSS”) filed a petition on 27 January 2000
alleging that the minor child, who was born 4 January 2000, was a
neglected and dependent juvenile. An adjudication of neglect and
dependency was entered 1 March 2000, and the minor child was placed
in petitioner's custody on 24 May 2000. On 19 July 2000, after a
permanency planning review hearing, the trial court found that
returning the juvenile to respondent's home would be “contrary to
the safety, health and best interest of the child.” The child's
father, who is not a party to this appeal, signed a voluntaryrelinquishment of his parental rights on 25 July 2000.
On 23 August 2000, petitioner filed its petition for
termination of respondent's parental rights. The evidence
presented at the 3 January 2001 termination hearing tended to show
that respondent used crack cocaine and alcohol through much of her
pregnancy, and resumed her use of cocaine after the minor child was
born. Following the 1 March 2000 adjudication that the minor child
was neglected and dependent, respondent was ordered to complete a
nurturing program and a psychological assessment, and to attend AA
and NA meetings. Respondent did not complete the nurturing
program, did not appear for her psychological evaluation, and
missed several scheduled AA and NA meetings. Between May 2000 and
the 3 January 2001 hearing, respondent contacted the Department of
Social Services only once to request a visit with the minor child.
Respondent made no other attempt to visit the juvenile, nor did she
pay any child support. Respondent testified that she had been
arrested for two incidents of driving while impaired in June 2000;
neither case had been finally disposed of at the time of the
hearing.
The trial court found, inter alia, the following facts by
clear and convincing evidence:
. . .
2. The direct circumstances which brought the
juvenile into the care of the Department of
Social Services were that the Respondent,
mother, after an adjudication of neglect and
dependency, and efforts by the Department to
work with the Respondent, mother, to correct
the problems which resulted in the
adjudication had left the juvenile in the care
of an unrelated party and had no furthercontact with her.
3. The Respondent, mother, has a lengthy
history of substance abuse and has treated at
an in-patient facility three times previously,
but following each such treatment she has
returned to abusing alcohol and controlled
substances.
4. The Respondent, mother, did appear at the
Adjudication Hearing in this matter at which
time she stipulated and admitted that the
allegations of the petition were true and
therefore the child was neglected and
dependent. The Respondent, mother, did not
appear for any subsequent hearing in the
matter until appearing today for the hearing
on the petition to terminate her parental
rights.
5. The Respondent, mother, has failed to
comply with the prior Court orders regarding
her treatment plan; she has failed to comply
with the requirement to attend NA/AA; she has
failed to successfully complete nurturing
classes which were determined to be necessary
to allow her to learn how to appropriately
parent the minor child; and she failed to
obtain a psychological evaluation as ordered
by the Court.
6. The Respondent, mother, tested positive
for cocaine in May, 2000, during the pendency
of the case; further, the Respondent mother
has used alcohol and marijuana since the
positive drug screen in May, 2000.
7. The Respondent, mother, has worked
sporadically though she is presently employed
at Wendy's where she has worked since
November, 2000.
8. The Respondent, mother, has previously
neglected the minor child and continues to do
so at this time. She has made no inquiry
regarding her daughter since May, 2000, except
for one time following the service on her of
the termination of parental rights petition in
November, 2000.
9. The Respondent, mother, appeared bruised
and bloody at the placement for her daughterin May, 2000 in an attempt to see her daughter
but she offered no explanation of what had
caused her injuries and was refused access to
her daughter at that time. She made no
further inquiry of the Department of Social
Services regarding visitation with her child.
. . .
12. Since . . . the service of the
termination of parental rights petition the
Respondent, mother, did seek employment and
did begin attending NA/AA missing only a few
meetings due to work or transportation issues.
The Respondent, mother, claims to be substance
free and further claims that she has been
substance free since . . . November . . . but
she offers no verification of this claim.
13. The Respondent, mother, as of the date of
this hearing, has not scheduled a
psychological evaluation, has not scheduled
in-patient treatment for her substance abuse
problems; has not scheduled to participate in
Nurturing Classes or taken any other steps to
comply with the prior orders entered by this
Court.
14. On December 14, 2000, the Respondent,
mother, did contact the Department of Social
Services in an attempt to arrange a visit with
the minor child but was advised that a visit
could not be scheduled. Since Christmas, the
Respondent, mother, did send a Christmas
present for the minor child through a third
party. These were the only such attempts made
by the Respondent, mother, throughout the
pendency of the action regarding the welfare
of the minor child.
15. The Respondent, mother, has paid no child
support for the benefit of the minor child
though she is able-bodied, capable of
providing support and has been employed since
November, 2000 and had the financial means to
do so. There was no obligation established
which would have established an amount of
support due from the Respondent, mother.
The trial court concluded,
inter alia:
. . .
4. That the juvenile is and was a neglected
child within the meaning of the N.C.G.S. § 7B-
101(15). Respondent parent neglected the
juvenile which resulted in her custody being
placed with the Caldwell County Department of
Social Services and that such neglect of the
juvenile continues to exist at the time of
this hearing.
5. That the juvenile is and was a dependent
child within the meaning of the N.C.G.S. § 7B-
101(9). Respondent mother allowed the child
to be determined to be a dependent child and
subsequently left her in the care of an
unrelated third party when the Respondent
mother relapsed in her use of illegal
substances which resulted in the child being
placed in the custody of the Caldwell County
Department of Social Services and that such
dependency continues as of the time of the
hearing in this matter.
. . .
8. That the Respondent, mother, has left the
juvenile in foster care since May, 2000
without correcting the conditions which
resulted in the juvenile being placed in
foster care; that she did not initiate any
contact with the Department and the Department
had no formal address for her, that she
abandoned the juvenile and that she previously
failed to provide proper care, supervision,
housing, education and nurture for the
juvenile.
Therefore the Court concludes as a matter
of law that grounds exist pursuant to N.C.G.S.
§ 7B-1111(1) and (6) to terminate the
parental rights of Betty Renee DeGuzman in and
to her minor child, Darianna Cheyenne
DeGuzman.
The trial court determined that the best interests of the minor
child would be served by the termination of respondent's parental
rights.
____________
Appellate review of an order terminating one's parental rights
requires the reviewing court to determine whether the trial court's
findings are supported by clear, cogent, and convincing evidence,
and whether those findings support the trial court's conclusion of
law that grounds for termination exist.
In re McMillon, 143 N.C.
App. 402, 546 S.E.2d 169,
disc. review denied, 354 N.C. 218, 554
S.E.2d 341 (2001). If so, the decision as to whether to terminate
parental rights is discretionary.
In re Montgomery, 311 N.C. 101,
316 S.E.2d 246 (1984). The burden of proof in termination of
parental rights cases is on the petitioner, who must prove facts
justifying termination with “clear and convincing evidence.” N.C.
Gen. Stat. § 7B-1111(b) (2001). If the petitioner carries its
burden, the trial court must then determine if termination is in
the best interests of the child.
McMillon, 143 N.C. App. at 408,
546 S.E.2d at 174. The trial court “has discretion, if it finds
that at least one of the statutory grounds exists, to terminate
parental rights upon a finding that it would be in the child's best
interests.”
Id. (citations omitted);
See also N.C. Gen. Stat. §
7B-1110(a) (2002). The trial court's decision to terminate
parental rights is reviewed for abuse of discretion.
McMillon,
supra. It is fundamental that the scope of appellate review “is
confined to a consideration of those assignments of error set out
in the record on appeal.” N.C.R. App. P. 10(a);
Koufman v.
Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991). In the present case,
respondent's sole assignment of error reads:
Respondent mother assigns as error:
1. The Court's Conclusion of Law No. 8, on
the ground that there are no Findings of Fact
which support the conclusion that the
Respondent Mother's parental rights should be
terminated.
In her brief, however, respondent attempts to argue that the trial
court's findings of neglect and dependency are not supported by
clear, cogent, and convincing evidence. We will not consider the
argument, because respondent has not assigned error to any of the
trial court's findings of fact and they are, therefore, deemed to
be supported by clear, cogent, and convincing evidence and are
conclusive on appeal.
In re Tyson, 76 N.C. App. 411,
333 S.E.2d
554 (1985). Thus, we review only the issues of whether the
findings support the trial court's conclusion that grounds exist to
terminate respondent's parental rights and its discretionary
decision that such termination is in the best interests of the
minor child.
G.S. § 7B-1111(a) provides that the trial court “may terminate
the parental rights upon a finding of one or more of the
following:”
(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.
. . .
(6) That the parent is incapable of providing
for the proper care and supervision of the
juvenile, such that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101, and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
Incapability under this subdivision may be the
result of substance abuse, mental retardation,mental illness, organic brain syndrome, or any
other similar cause or condition.
G.S. § 7B-101(15) defines “neglected juvenile” in part as one “who
does not receive proper care, supervision, or discipline from the
juvenile's parent, guardian, custodian, or caretaker; or who has
been abandoned . . . .” A “dependent juvenile” is one
in need of assistance or placement because the
juvenile has no parent, guardian, or custodian
responsible for the juvenile's care or
supervision or whose parent, guardian, or
custodian is unable to provide for the care or
supervision and lacks an appropriate
alternative child care arrangement.
N.C. Gen. Stat. § 7B-101(9).
The trial court's findings of respondent's substance abuse,
her failure to comply with the trial court's orders regarding
treatment to enable her to resume her parenting responsibilities,
her leaving the child in the care of an unrelated party and making
no inquiry concerning the child for an extended period of time, and
her minimal attempts to make contact with and visit the child
support its conclusions that the child was both neglected and
dependent within the meaning of the statutes. Furthermore, in view
of our review of the testimony in this case; the trial court's
findings, all of which are conclusively deemed to be supported by
clear, cogent, and convincing evidence; and our determination that
the trial court properly concluded that grounds for termination
existed, we discern no abuse of discretion in the trial court's
determination that it was in the minor child's best interests that
respondent mother's parental rights be terminated. The order of
the trial court is affirmed. Affirmed.
Judges TYSON and THOMAS concur.
Report per Rule 30(e).
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