Appeal by respondents from orders entered 5 June 2001 by Judge
Christopher Bragg in Anson County District Court. Heard in the
Court of Appeals 11 June 2002.
Paul S. Prelipp for petitioner-appellee.
James V. Carneval and Melanie Wade Goodwin for respondents-
appellants.
TIMMONS-GOODSON, Judge.
Michelle Oxendine and Johnny Oxendine (“respondents”), the
natural parents of Travis Allen Oxendine (“Travis”), appeal from an
order adjudicating Travis neglected and awarding custody of Travis
to the Anson County Department of Social Services (“DSS”) and an
order terminating parental rights. For the reasons stated herein,
we affirm the orders of the trial court.
On 18 January 2000, DSS filed a petition alleging Travis had
been neglected by respondents and a second petition requesting thatthe parental rights of respondents be terminated based on neglect.
On 6 September 2000 and 20 September 2000, the petition alleging
neglect and the petition for termination of parental rights were
heard before the trial court. The evidence presented before the
proceeding revealed that Travis was suffering from numerous health
problems including: a tumor located on his leg, a kidney
condition, cerebral palsy, and rhabodomyosarcoma, a form of cancer
of the soft tissue. The cancer required continuous treatment,
several surgeries, chemotherapy and radiation therapy. Daniel
McMahon, M.D. (“Dr. McMahon”), the treating pediatric oncologist
for Travis, developed and implemented a course of treatment for
Travis. Dr. McMahon met personally with respondents and stressed
the importance of proper nutrition in order for Travis to maintain
his weight and strength. He also informed the respondents that
that it was imperative that Travis attend his regularly scheduled
appointments for treatment. Despite this information, Travis
suffered an extreme amount of weight loss, dehydration, weakness
and often came to the hospital “very dirty.” Travis had also
missed several of his scheduled treatment appointments. On 25
November 1998, Travis was hospitalized for several weeks to regain
weight and strength before he could resume chemotherapy. Jennifer
Horsley, a medical social worker, had numerous conversations with
respondents about Travis' missed appointments and referred the
matter to DSS in response to respondents' non-compliance with the
treatment plan. On 27 November 1998, DSS filed a petition for
neglect. Thereafter, Travis was placed in foster-care. On 10 March 1999, respondents stipulated to a finding of
medical neglect. On 18 January 2000, DSS filed a petition for
termination of parental rights. Based on the evidence presented at
the termination hearing, the trial court made the following
pertinent findings of fact:
51. That on March 10, 1999 Johnny and
Michelle Oxendine by and through their
attorneys in open court stipulated as to a
finding of medical neglect as alleged in the
Petition dated November 27, 1998.
54. That the parents of the minor child have
up until the date of this hearing continued to
miss necessary medical appointments for their
minor child with no back up plan in place.
58. That due to the parent[s'] lack of
reliability, the foster mother took over the
responsibility of taking the minor child to
all of his doctor's appointments and
treatments in Charlotte. That upon the foster
mother's assumption of these duties the child
never missed an appointment and responded well
to the therapy provided to him.
65. That with the exception of one fifty
dollar payment the parents of the minor child,
Travis Allen Oxendine, have not paid a
reasonable portion of the cost of the care for
their minor child although physically and
financially able to do so.
69. That the ability of the mother and father
to understand the severity of their son's
condition and course of care is questionable.
70. That the mother and father were not able
to carry through with the child's treatment
regimen or with the Family Services Case Plan
even after the minor child was removed from
the home.
72. That on June 23, 1999, this Court
relieved the Department of Social Services
from further efforts to reunify the minor
child with his parents, Johnny and Michelle
Oxendine, since the respondent parents had notmade substantial progress in correcting the
conditions which led to the removal of the
minor child from his home on November 27,
1998; that the Department of Social Services
has used reasonable efforts to provide
reunification services with the minor child
and the Respondent parents to no avail.
77. That the foster mother has spent an
enormous amount of time with the minor child
and has been an incredible influence on the
child's progress.
79. That the minor child is thriving in
foster care and has completed his cancer
treatment which will require close follow up
and monitoring.
82. That neither parent has contacted the
physician to inquire about Travis' medical
condition and the mother has called only two
times since September 1999 to inquire about
Travis' medical condition.
83. That the Respondent mother is seen
regularly at the Department of Social Services
and does not inquire about the medical welfare
of her child.
Based on the above-stated findings, the trial court concluded
that: (1) respondents willfully left the minor child in foster care
for more than twelve months without showing to the satisfaction of
the Court reasonable progress under the circumstances has been made
within twelve months in correcting those conditions which led to
the removal of Travis; (2) respondents failed to provide the minor
child with proper care and supervision in that he was not provided
necessary medical care with respect to his ongoing medical needs
and treatments. Further, that there is a high probability of
repetition of neglect and strong likelihood that such conditions
will continue for the foreseeable future and have continued through
the time of this hearing; and (3) it was in the best interests ofthe minor child for respondents' parental rights to be terminated.
The trial court therefore terminated respondents' parental rights
as to Travis on 5 June 2001. Respondents appeal from this order.
In their first assignment of error, respondents contend that
the trial court erred by finding medical neglect sufficient to
support termination of parental rights. We disagree.
The termination of parental rights statute provides for a two-
stage termination proceeding: the adjudication stage and the
disposition stage.
In re Young, 346 N.C. 244, 247, 485 S.E.2d 612,
614 (1997). “At the adjudication stage, the party petitioning for
termination of parental rights must demonstrate by clear, cogent,
and convincing evidence that one or more of the grounds warranting
termination, as set forth in section 7A-289.32 of our North
Carolina General Statutes, exist.”
In re Leftwich, 135 N.C. App.
67, 71, 518 S.E.2d 799, 802 (1999). If one or more of the grounds
for terminating parental rights are shown, the court moves to the
disposition stage to determine whether it is in the best interests
of the child to terminate parental rights.
Id. Our standard of
review in termination of parental rights cases is whether the
“court's findings of fact are based upon clear, cogent, and
convincing evidence” and whether the “findings support the
conclusions of law.”
In re Allred, 122 N.C. App. 561, 565, 471
S.E.2d 84, 86 (1996). If the trial court's decision is supported
by the evidence, the findings are binding on appeal, even if there
is evidence to the contrary.
In re Williamson, 91 N.C. App. 668,674, 373 S.E.2d 317, 320 (1988).
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)(2001), a court may
terminate parental rights upon a finding that the parent has
neglected his or her child. Neglect, within the meaning of N.C.
Gen. Stat. § 7B-101(15)(2001), constitutes one of the grounds that
may support termination of parental rights. A “neglected juvenile”
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; . . . .
N.C. Gen. Stat. § 7B-101(15).
Respondents argue that the trial court erred by finding
neglect sufficient to support termination of parental rights absent
evidence showing neglect at the time of the termination proceeding.
Respondents argue that the trial court did not consider the
improvements in Travis' medical condition at the time of the
termination proceeding. We disagree.
“A finding of neglect sufficient to terminate parental rights
must be based on evidence showing neglect at the time of the
termination proceeding.”
Young, 346 N.C. at 248, 485 S.E.2d at
615. A “trial court's order must reflect that the termination of
parental rights for neglect was based on an independent
determination of existing neglect or a determination that
conditions exist which will in all probability precipitate a
repetition of neglect.”
In re Stewart Children, 82 N.C. App. 651,654, 347 S.E.2d 495, 497 (1986). The determinative factors must be
the “best interests of the child, and the fitness of the parent to
care for the child
at the time of the termination proceeding.”
In
re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232
(1984)(alteration in original).
In the instant case, the trial court's conclusion that grounds
existed for termination of respondents' parental rights was
supported by the record. The trial court properly considered both
evidence of neglect by respondents prior to losing custody of
Travis as well as evidence of conditions since that time, revealing
a likelihood of neglect in the future. The record is replete with
evidence that respondents have not accepted the responsibility
needed to provide the care, support, and medical support that
Travis requires in light of his present health conditions. The
trial court specifically found:
54. That the parents of the minor child have
up until the date of this hearing continued to
miss necessary medical appointments for their
minor child with no back up plan in place.
55. That Johnny and Michelle Oxendine have
never been able to articulate any sort of back
up plan for Travis's care and treatment
despite the urging and assistance of the
Department of Social Services.
60. That the parents have been very
inconsistent with visitation and do not
normally call to check on Travis or his
current health status.
69. That the ability of the mother and father
to understand the severity of their son's
condition and course of care and treatment is
questionable.
74. That the parents have not taken theinitiative in connection with the
reunification with the child and that they are
dependent on others concerning the care of
their child.
80. That the minor child will need continued
special assistance, speech therapy, mentoring,
monitoring and follow up care for the rest of
his life.
82. That neither parents has contacted the
physician to inquire about Travis' medical
condition and the mother has called only two
times since September 1999 to inquire about
Travis' medical condition.
Based upon these findings, the trial court properly concluded
that neglect existed at the time of the proceeding and that there
was a reasonable probability and strong likelihood that such
conditions would continue in the future. We therefore hold that
the trial court made a determination, independent of the prior
stipulation and adjudication of neglect, that termination of
parental rights was in the best interest of the child at the time
of the hearing.
In their next assignment of error, respondents contend that
the trial court erred by allowing evidence of respondents'
community fund-raising efforts for the benefit of Travis. This
argument is without merit.
Respondents dispute the relevance and prejudicial nature of
the testimony by Mary Kendall, a DSS Child Protective Services
supervisor, which led the court to enter the following findings of
fact:
66. That the parents of the minor child
distributed donation cans at local convenience
stores seeking money to help a family with a
sick child. None of the monies collected wereever paid to support their minor child, Travis
Allen Oxendine.
67. That in addition to their minor child,
Travis Allen Oxendine, the Oxendines had their
other six children living in the home.
N.C. Gen. Stat. § 8C-1, Rule 401 (2001) defines relevant
evidence as “evidence having any tendency to make the existence of
any fact of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
In the instant case, DSS petitioned the court to terminate parental
rights on the grounds of neglect as well as the respondents'
willful “failure to pay a reasonable portion of the costs of care
of the child while in custody of the Anson County Department of
Social Services although the parents were physically and
financially able to do so.” Clearly, the evidence is relevant as
it tends to show that respondents had the opportunity to pay a
reasonable portion of the costs of Travis' care, even through funds
of another source, and failed to do so. However, we note that even
if the testimony was not relevant, it was not prejudicial since the
trial court's findings support termination of respondents' parental
grounds based on grounds of neglect. This assignment of error is
therefore overruled.
By their next two assignments of error, respondents contend
that the trial court erred when it concluded that their parental
rights should be terminated pursuant to section 7B-1111(a) of our
statutes because: (1) respondents “willfully left the [minor child]
in foster care or placement outside the home for more than 12
months without showing to the satisfaction of the court thatreasonable progress” had been made in correcting conditions that
led to the minor child's removal and (2) respondents have willfully
failed for a “continuous period of six months next preceding the
filing of the petition” to “pay a reasonable portion of the cost of
care for the [minor child] although physically and financially able
to do so.” However, this Court has held that “a valid finding on
one statutorily enumerated ground is sufficient to support an order
terminating parental rights.”
Stewart, 82 N.C. App. at 655, 347
S.E.2d at 498. Since we have determined that the trial court's
findings support termination of respondents' parental rights based
on grounds of neglect, “we need not address the respondents'
assignments of error challenging the sufficiency of the evidence to
terminate, based on other statutory grounds.”
Id.
In conclusion, we hold that the trial court's findings of fact
were supported by the evidence, and that the trial court's
conclusions were supported by the findings of fact. We therefore
affirm the order of the trial court.
Affirmed.
Judges GREENE and HUNTER concur.
Report per Rule 30(e).
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