Appeal by respondents from orders entered 4 February 2002 by
Judge Lonnie W. Carraway in Wayne County District Court. Heard in
the Court of Appeals 21 May 2003.
No brief filed by petitioner or Guardian ad Litem.
Annick Lenoir-Peek for respondent-appellant Linda Martin.
Angela H. Brown for respondent-appellant Glen Martin.
Peter Wood for respondent-appellant Scott Farmer.
MARTIN, Judge.
Respondents Linda Martin and Glen Martin appeal from the
termination of their parental rights as to Lindsey Martin, and
Linda Martin and Scott Allen Farmer appeal from the termination of
their parental rights as to Tayla Brooke Martin. According to the
evidence, Glen and Linda Martin were married on 17 May 1992 and
Lindsey was born to the couple on 19 May 1992. There was plenary
evidence presented that both Glen and Linda Martin were addicted to
and used heroin, and abused other illegal drugs, prior to Lindsey's
birth and continued to do so thereafter. There was also evidence
that they had both tried to stop using heroin in the years afterLindsey's birth and had attended a methadone program, but had never
succeeded in breaking the habit. The Martins lived in Wayne County
in a mobile home they owned, and Glen Martin provided financial
support for the family through construction jobs or a wallcovering
business in which Linda Martin helped him for a few years.
In the summer of 1999, Linda Martin became involved with Scott
Farmer, who also used heroin. She moved in with Scott for some
months, and became pregnant with Tayla Brooke Martin. She left
Scott Farmer's residence during the pregnancy and moved back in
with her husband, but returned to Scott's residence not long before
Tayla was born on 21 July 2000. Lindsey Martin moved with her
mother on each of these occasions. Linda Martin testified that she
was on methadone during her pregnancy with Tayla and also used
heroin, which Scott Farmer procured for her, intravenously. Hours
before Tayla's birth, when Linda Martin had been sent home from the
hospital and was in severe pain, Scott Farmer prepared a dose of
heroin for her and either he or she administered it. After the
birth, Linda and Tayla returned to Scott Farmer's home. On 23
August 2000, the Wayne County Department of Social Services (“DSS”)
substantiated neglect as to both children and removed them from the
care of Linda Martin and Scott Farmer. According to the neglect
petition, DSS became involved with the family because traces of
illegal drugs were found in Tayla's blood and Linda Martin's urine
at the hospital. Linda Martin's twin sister Brenda Thornton also
testified that she called DSS on 23 August because she had
observed, upon visiting her sister at Scott Farmer's home, thatboth Linda Martin and Scott Farmer appeared to be under the
influence of drugs.
DSS placed Tayla with Linda Martin's older sister, Phyllis
Ginn, and placed Lindsey with Glen Martin. On 14 September 2000,
Glen Martin arranged for Lindsey to stay with Brenda Thornton while
he entered a drug rehabilitation facility. After two weeks,
Lindsey was placed with Glen Martin's niece Lisa Mathias and
remained with her family through the termination proceedings. At
some point during the termination proceedings, Tayla was moved to
a placement with Nancy Callentine, a relative of Glen Martin's.
After placing Lindsey with Brenda Thornton in September 2000,
Glen Martin stayed in drug rehabilitation for only a few days and
his testimony indicates that after leaving the facility, he resumed
his heroin habit and used cocaine on occasion. Testimony by
various witnesses and the results of drug screens performed by the
methadone clinic on Linda Martin indicate that she used heroin and
sometimes cocaine on many occasions after August 2000 and was
discharged from the methadone program in March 2001 for failure to
meet its requirements. Josie Allen, the DSS worker in charge of
the cases before this Court, testified that Linda Martin came to
her office only twice before the spring of 2001, and although Glen
Martin came more often, the frequency of his meetings with Ms.
Allen declined until she had no contact with him in December 2000.
Linda Martin's visitation with both children was sporadic; despite
efforts to establish a schedule with the Mathias family, Glen and
Linda Martin would miss visits with Lindsey and request visits offthe schedule, leading to visitation being planned through DSS.
Glen Martin worked on some construction jobs and Linda Martin was
not employed during this period and neither paid child support.
In October 2000, Scott Farmer failed to appear for court
dates, was arrested, and entered a DART drug rehabilitation program
on 3 November, and Linda Martin then moved back in with her
husband. On 16 November 2000, both children were adjudicated
neglected and dependent based upon admissions by Glen and Linda
Martin. Glen Martin took a paternity test on 12 December 2000
which indicated he was not Tayla's father. On 30 December 2000,
Linda Martin took responsibility for an auto accident caused by
Glen Martin; she did so because he had no driver's license at the
time. Because she did not pay the $6,000-$8,000 in restitution
ordered for the accident damage, her driver's license was revoked
and remained so through the termination proceedings. Glen Martin
was incarcerated on 17 January 2001 for a conviction as an habitual
felon based on three convictions for possession of heroin. The
Martins' home was re-possessed in March 2001. After entering
prison, Glen Martin corresponded frequently with both Lisa Mathias
and Lindsey through letters. Glen Martin was in prison during the
termination proceedings and not scheduled for possible release
until 2007.
At some point after Glen Martin went to prison and Scott
Farmer was released from the DART program on 31 January 2001, Linda
Martin and Scott Farmer became involved again, living together at
his residence. Scott Farmer testified that he was told by DSS inAugust 2000 that he had no parental rights to Tayla because he had
neither legitimated her nor acknowledged paternity. Scott Farmer
submitted to a paternity test in December 2000 after Glen Martin
was excluded as the father; the results of the test confirmed that
Scott Farmer was Tayla's father. Josie Allen, the DSS social
worker handling the cases, sent Scott Farmer a certified return
receipt letter advising him of the results in early February 2001.
The return receipt indicates Linda Martin signed for the letter.
She testified that she gave the letter to Scott Farmer two weeks
later. He testified that he responded to it two weeks after that.
Ms. Allen testified that Scott Farmer did not call until after 8
March when DSS was permitted to cease reunification efforts. Scott
Farmer arranged an appointment for 3 April 2001 to work out child
support payments, but failed to attend the meeting. He was
incarcerated on 18 April for probation violation and remained in
jail through the hearings due to felony charges for acts allegedly
committed 1 April. Scott Farmer testified that he bought and used
heroin twice within weeks of his release from the DART program and
bought heroin for Linda Martin once during that period. He pleaded
guilty to two counts of felonious breaking and entering and, at the
time of the termination proceedings, was scheduled for release from
incarceration in mid-2002.
DSS filed petitions to terminate parental rights as to both
children on 27 April 2001, alleging that Linda and Glen Martin had
neglected and continued to neglect Lindsey Martin and Linda Martin
and Scott Farmer neglected and continued to neglect Tayla Martin. Linda Martin managed to stop using drugs in April 2001 and had a
negative voluntary drug screen in June 2001. In April, she lived
with Brenda Thornton for some weeks. She then moved into her
parents' home for some months. While living with her parents, she
held a part-time job for five weeks at a local convenience store,
but was fired for insubordination and failure to account for cash
shortages. She was asked by her mother to move out. After that,
she declined to tell her family or DSS where she was living and did
not provide them with a way to contact her in case of emergency.
The hearings on the petitions for termination of parental rights
commenced 5 September 2001. At one of the hearings in late
October, Linda Martin indicated that she stayed at the Salvation
Army after leaving her parents' home, but had since entered into a
lease for a suitable home and had started a job selling mobile
homes with a local company. She testified that an uncle paid her
rental deposit for the home and that she had been advanced $150 by
her boss and was guaranteed $325 per week as a base salary, with
the chance to earn commissions. After April 2001, Linda Martin
completed parenting classes and attended multiple Narcotics
Anonymous and Alcoholics Anonymous meetings and group and
individual counseling sessions, though her testimony indicated that
her attendance began to drop off in October due to her new job and
the many court hearings. At the time of the termination
proceedings, Linda Martin testified she had begun making child
support payments for each child, but was behind one payment for
Tayla. Other testimony and evidence necessary to an understandingof the cases on appeal will be set forth in the opinion below.
After receiving testimony and evidence over eleven days of
hearings, the district court entered orders terminating
respondents' parental rights as to both children, respectively.
Respondents gave timely notice of appeal.
__________________________________
Linda Martin
Respondent-mother Linda Martin argues the trial court erred in
(1) admitting into evidence photographs taken several years prior
to DSS's initiation of these neglect proceedings, (2) finding and
concluding she had abused her daughter Lindsey when the petition
did not allege abuse, thus failing to give her notice that abuse
was at issue in the case, (3) terminating her parental rights when
she had substantially complied with the district court's previous
orders by the conclusion of the termination proceedings, (4)
concluding that it was in the best interests of Lindsey and Tayla
Martin to terminate her parental rights, (5) finding and concluding
that she would probably remain dependent on heroin for the rest of
her life, (6) finding and concluding that the conditions which
brought on the initial petitions for neglect and dependency had not
changed, and (7) denying her motion for directed verdict at the
close of evidence. After a thorough review of the record and
evidence, we affirm the orders terminating respondent Linda
Martin's parental rights.
Linda Martin first argues the trial court erred in admitting
into evidence certain photographs because they were takenapproximately eight years earlier and thus were not relevant to the
issues in the present case, or that any relevance they had was far
outweighed by the prejudice they would engender. The photographs
depicted Lindsey alone or Lindsey with Glen Martin nude or
partially nude in sexually suggestive poses, Glen Martin placing
his tongue in Lindsey's mouth, and Glen Martin pointing a knife
toward Lindsey in a stabbing motion. Even assuming the admission
of these photographs was error, an issue we do not need to decide,
we hold that their admission was not prejudicial.
The district court found that one of the photographs:
. . . constitutes the preparation of an
obscene photograph as set out in N.C.G.S. 7B-
101(d) and that both Glen and Linda Martin
committed, permitted and encouraged the
commission of the preparation of this obscene
photograph. That Lindsey Martin is an abused
juvenile as defined by N.C.G.S. 7B-101(1) and
that Linda Martin and Glen Martin abused the
juvenile as set out herein.
On this basis, the trial court concluded Lindsey Martin had been
abused by Linda and Glen Martin. However, the district court also
found and concluded that Linda and Glen Martin had neglected
Lindsey. According to G.S. § 7B-1111(a)(1), a court may terminate
parental rights upon a finding that “[t]he parent has abused
or
neglected the juvenile.” N.C. Gen. Stat. § 7B-1111(a)(1) (2003)
(emphasis added). Therefore, the district court had adequate
grounds for terminating Linda Martin's parental rights without
relying on the finding of abuse and thus the admission of the
photograph found to demonstrate abuse was harmless.
As to the other photographs the district court consideredrelevant, it found “[t]he cumulative effect of the last seven
pictures show [sic] a lack of respect for Lindsey Martin to be
reared properly, a lack of respect for her dignity and privacy and
their cumulative effect constitutes neglect by both Linda and Glen
Martin.” Even assuming,
arguendo, that the admission of these
photographs was error, the findings based on them were certainly
not the sole basis for the conclusion of neglect. There was, as
will be discussed below, substantial evidence of more recent
neglect by Linda Martin from which the district court made detailed
findings and these findings provide sufficient support for the
district court's conclusion of neglect and termination of parental
rights. Therefore, the admission of the photographs found to show
neglect by the court was harmless.
Next, Linda Martin contends the finding and conclusion of
abuse constitute reversible error because the petition did not
allege abuse and the lack of notice that abuse was at issue in the
case violated her right to due process. However, the district
court also found and concluded that Lindsey had been neglected by
her parents, an allegation for which Linda Martin had adequate
notice. Because the conclusion of neglect alone provided a
sufficient basis for termination of Linda Martin's parental rights,
see G.S. § 7B-1111(a)(1), any error arising from the district
court's finding and conclusion of abuse despite the absence of an
allegation of abuse in the petition is harmless. This argument is
overruled.
Linda Martin next argues the trial court erred in terminatingher parental rights when she had substantially complied with the
previous orders of the district court. She points to the court's
instructions in its orders issued 16 November 2000, 8 February
2001, and 8 March 2001, that she receive substance abuse treatment,
attend NA/AA meetings, and submit to random drug tests. Although
she admitted to using heroin and other illegal drugs until April
2001, she asserts that based on her “turn-around” since that time,
including ending her substance abuse, attending, and even chairing,
NA and AA meeting groups, and obtaining employment and a suitable
residence for her family, it was “premature” for the district court
to terminate her parental rights. Linda Martin cites no law in
support of this argument. N.C. R. App. P. 28(b)(6) (2003). This
argument is similar to her fifth and sixth arguments, which assert
the district court erred in finding and concluding that she “will,
in all probability, live the rest of her life being dependent on
heroin” and finding and concluding “the conditions which caused the
initial petition of neglect and dependency to be filed have not
changed and there is a high probability of repetition of neglect.”
Therefore, we will address them together.
A proceeding to terminate parental rights consists of two
stages. Under G.S. § 7B-1109, the district court must determine in
the adjudicatory phase whether the petitioner has shown by clear,
cogent, and convincing evidence that at least one of the grounds
for termination listed in G.S. § 7B-1111 exists at the time of the
proceeding. N.C. Gen. Stat. § 7B-1109(e), (f) (2003). G.S. § 7B-
1110 governs the disposition phase, providing that if the districtcourt determines one of the conditions authorizing termination
exists, it must order termination unless it determines in its
discretion that it would not be in the best interests of the child
to terminate parental rights. N.C. Gen. Stat. § 7B-1110(a) (2003);
In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994) (best
interests determination within district court's discretion).
Neglect is one of the grounds for termination of parental rights.
N.C. Gen Stat. § 7B-1111(a) (2003). A neglected juvenile is
defined by G.S. § 7B-101(15) as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, . . . ; or who has been abandoned; . .
. ; or who lives in an environment injurious
to the juvenile's welfare; . . . . In
determining whether a juvenile is a neglected
juvenile, it is relevant whether that juvenile
lives in a home where another juvenile . . .
has been subjected to abuse or neglect by an
adult who regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2003). Linda Martin points to
certain changed conditions as evidence that she is not likely to
repeat her past neglect of her children in the future.
This Court
has recently stated
that:
[w]here, . . . , a child has not been in the
custody of the parent for a significant period
of time prior to the termination hearing, the
trial court must employ a different kind of
analysis to determine whether the evidence
supports a finding of neglect. . . . “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.” Although prior
adjudications of neglect may be admitted and
considered by the trial court, they will
rarely be sufficient, standing alone, to
support a termination of parental rights,
since the petition must establish that neglectexists at the time of hearing. Thus, the
trial court must also consider evidence of
changed conditions in light of the history of
neglect by the parent and the probability of a
repetition of neglect. In addition, visitation
by the parent is a relevant factor in such
cases.
In re Shermer, ___ N.C. App. ___, ___, 576 S.E.2d 403, 407 (2003)
(citations omitted) (emphasis in original). Although there was
evidence that Linda Martin had changed certain relevant aspects of
her life after April 2001, the district court's findings indicate
its concern that she nonetheless did “not have the present ability
to care for” her children. The findings indicate that other
witnesses felt she was not able to care adequately for her
children, that she had recently been asked to leave her parents'
home and did not thereafter provide DSS with any contact
information, that her driver's license had been revoked and she had
developed no plan for getting it back in the near future, that she
only recently obtained employment which she failed to verify, and
that she had failed in the past to maintain stable employment.
Linda Martin did not assign error to the findings that she had
consistently failed after 23 August 2000 to visit with her children
on a regular basis. She also did not assign error to the findings
that she had neglected her children prior to their removal from her
custody by,
inter alia, leaving drug paraphernalia such as syringes
where Lindsey could and did find them, using heroin while pregnant
with Tayla, and sleeping in her bedroom during the afternoon with
the door closed prior to Tayla's birth, leaving Lindsey unattended
after school, and leaving Lindsey alone to care for Tayla in thefirst weeks of her life. There was clear, cogent, and convincing
evidence adduced at the hearings to support these findings.
In terms of her challenge to the specific finding that she
would probably never recover from her heroin addiction, there is
evidence in the record that Linda Martin's heroin abuse began
between 1984 and 1986 and continued until April 2001. Although
there was evidence that she tried to get treatment at points after
Lindsey's birth, primarily through a methadone program, even her
own testimony, which the district court found was not very
credible, indicated that she never managed to stay off heroin for
more than a “couple years” at a time. Therefore, there was clear
and convincing evidence of the likelihood of her relapse in the
future.
Viewing the evidence of the recent changes Linda Martin made
in her life in light of the evidence of her history of neglect and
drug addiction, the trial court did not err in finding Linda Martin
had and would likely continue to neglect her children, thus
establishing grounds for termination of her parental rights. Her
contentions that she did not willfully fail to make reasonable
progress toward correcting the conditions of neglect are founded on
cases that deal with termination of parental rights pursuant to
G.S. § 7B-1111(a)(2), a provision not employed in this case, and do
not address specific findings or conclusions. These arguments are
overruled.
Next, pointing again to evidence of her recent improvement,
Linda Martin contends the trial court abused its discretion inconcluding it was in the best interests of Lindsey and Tayla to
terminate her parental rights. An “[a]buse of discretion is shown
only when the court's decision 'is manifestly unsupported by reason
or is so arbitrary that it could not have been the result of a
reasoned decision.'”
Barton v. Sutton, 152 N.C. App. 706, 710, 568
S.E.2d 264, 266 (2002) (quoting
State v. McDonald, 130 N.C. App.
263, 267, 502 S.E.2d 409, 413 (1998)). Given the evidence of Linda
Martin's illegal drug use and neglect of Lindsey and Tayla, her
history of relapse, and her continued instability after April 2001,
we cannot hold that the district court's decision was unreasonable
or arbitrary. This argument is overruled.
Lastly, Linda Martin argues the district court erred in
denying her motion for a directed verdict at the close of evidence.
“In an action tried without a jury the appropriate motion by which
defendants test the sufficiency of plaintiffs' evidence is by
motion for dismissal” pursuant to Rule 41(b) of the North Carolina
Rules of Civil Procedure.
Neasham v. Day, 34 N.C. App. 53, 54, 237
S.E.2d 287, 288 (1977); N.C. Gen. Stat. § 1A-1, Rule 41(b) (2003).
“The question raised by defendants' motion to dismiss made at the
close of all the evidence is whether any findings of fact could be
made from the evidence which would support a recovery for
plaintiffs. If such findings can be made the motion to dismiss
must be denied.”
Neasham,
34 N.C. App. at 55, 237 S.E.2d at 288-
89. Our review and holdings as to Linda Martin's previous
arguments regarding the findings, conclusions, and disposition of
the district court more than adequately answer this argument. Weaffirm the district court's order terminating Linda Martin's
parental rights to Lindsey Martin and Tayla Brooke Martin.
Glen Martin
Respondent-father Glen Martin argues the district court erred
in (1) making findings of fact unsupported by clear, cogent, and
convincing evidence; (2) concluding, based on these unsupported
findings, that he had neglected Lindsey Martin and thus there were
grounds for termination of his parental rights; (3) failing to
grant his motion for mistrial after it was disclosed that an
attorney who represented him on criminal charges had recently
joined the law firm of counsel for the Guardian ad Litem; and (4)
admitting the Guardian ad Litem report from September 2001 into
evidence when it contained hearsay statements by declarants
unavailable for cross-examination. After a thorough review of the
record and evidence, we affirm the orders terminating Glen Martin's
parental rights.
In his first argument, Glen Martin asserts that several of the
district court's findings are not supported by clear and convincing
evidence. He first challenges the finding that “the only reason
Glen Martin, based on his past history, is not presently abusing
heroin is the fact that he is incarcerated.” However, Glen Martin
did not assign error to other related findings that he “has a
serious addiction to heroin,” which he “started using . . . in 1975
or 1976 and has continued [to] use . . . until he began serving his
present prison sentence,” that after placing Lindsey with family in
September 2000 he stayed in drug rehabilitation for only six days,and that he “was using heroin on a daily basis” and “experimented
with cocaine” prior to entering prison on 17 January 2001. He also
did not assign error to the finding that he was “high on heroin”
when he visited with Lindsey the evening before beginning his
present prison sentence. These findings, as well as the one to
which he assigns error, are supported by clear and convincing
evidence in the record, including Glen Martin's own testimony.
Glen Martin next contends the district court erred in finding
that “as a result of Glen Martin's heroin addiction and his
incarceration resulting from his heroin addiction, [he] is
incapable of providing for the proper care and supervision of
[Lindsey] such that the juvenile is a dependent juvenile within the
meaning of N.C.G.S. 7B-1111[(a)](6) and there is a reasonable
probability that such incapability will continue for the
foreseeable future.” This finding relates to “dependency,” but
does not relate to neglect, a separate ground for termination under
G.S. § 7B-1111(a)(1). Only one ground for termination is required
under G.S. 7B-1111(a). Because Glen Martin was also found to have
neglected Lindsey and failed to correct the conditions leading to
the prior neglect at the time of termination, we need not address
his argument as to the finding of dependency.
Glen Martin also challenges the findings that (1) prior to his
incarceration, he acted in such a way as to evince a lack of
concern for Lindsey that amounted to neglect and (2) he abused and
neglected Lindsey Martin. The first argument is essentially a
repetition of Linda Martin's arguments regarding the photographsfound in their home and the lack of notice that child abuse would
be at issue in the case. Our disposition of Linda Martin's
arguments relating to the photographs and the finding and
conclusion of abuse applies to Glen Martin's arguments as well.
Glen Martin next contends that “[a]side from the old pictures
. . . , there was no evidence anywhere in the transcript or
otherwise that suggested Glen ever lacked concern for Lindsey.”
Citing
In re Phifer, 67 N.C. App. 16, 312 S.E.2d 684 (1984)
(parent's alcoholism alone insufficient for finding of neglect;
must have evidence of adverse impact on child from alcoholism), he
asserts that his past drug use is relevant only to the extent that
it adversely affected Lindsey. We note that Glen Martin did not
assign error to the findings that he assaulted Linda Martin, an
offense to which he pled guilty, in front of Lindsey on one
occasion; that he told Lindsey to run from police officers when the
van in which Glen Martin, a “'drug buddy,'” and Lindsey were riding
was stopped; that he and Linda Martin took Lindsey to Raleigh with
them at 4 a.m. on many school mornings to get their methadone
treatment, negatively affecting her alertness in school even though
they could have made other arrangements for her care; that Lindsey
found drug needles in the Martins' home at least once; that Glen
Martin visited with Lindsey sporadically after she was placed with
the Mathiases; that he never paid child support for her; that he
visited her while high on heroin; and that he committed offenses of
felony possession of heroin while she was in his care for which he
was later convicted. Several of these instances demonstrate theadverse impact of Glen Martin's drug abuse on Lindsey.
See In re
Clark, 72 N.C. App. 118, 323 S.E.2d 754 (1984) (distinguishing
In
re Phifer on the basis of evidence of adverse impact). These
findings were supported by clear and convincing evidence and that
same evidence supports the findings which he challenges. These
arguments are without merit.
In his second major argument, Glen Martin asserts that because
the findings discussed above are not supported by clear and
convincing evidence, the conclusion that Lindsey is a neglected
juvenile within the meaning of the relevant statute and has been
neglected by him must be reversed. We have determined, however,
that the challenged findings were supported by clear and cogent
evidence. Because these findings show Lindsey did not receive
proper care or supervision and lived in an environment injurious to
her welfare, they support the legal conclusion that Lindsey was
neglected by her father. N.C. Gen. Stat. § 7B-101(15) (2003).
Therefore, the adjudication of neglect was not error.
Glen Martin also asserts the district court abused its
discretion in terminating his parental rights at the disposition
phase, pointing especially to testimony characterizing him as a
good father and evidence that he has been corresponding by letter
with Lindsey since his incarceration. Given the evidence of
neglect and the likelihood of repetition of neglect, we cannot hold
the district court's decision was unreasoned or arbitrary.
Barton
v. Sutton, supra.
Glen Martin next argues the trial court erred in denying hismotion for a mistrial after it was disclosed that the attorney who
had represented him on the charges for felony possession and
habitual felon that resulted in his conviction in January 2001 had
since joined the firm of counsel for the Guardian ad Litem. Glen
Martin cites G.S. § 15A-1061, which provides in pertinent part:
Upon motion of a defendant . . . the
judge may declare a mistrial at any time
during the trial. The judge must declare a
mistrial upon the defendant's motion if there
occurs during the trial an error or legal
defect in the proceedings, or conduct inside
or outside the courtroom, resulting in
substantial and irreparable prejudice to the
defendant's case.
N.C. Gen. Stat. § 15A-1061 (2003). Glen Martin asserts that the
failure to adequately investigate for conflicts resulted in
“substantial and irreparable prejudice to his case that could not
be cured.” The resulting prejudice alleged is that information
known to Martin's criminal attorney “may have tainted” the opinions
contained in the Guardian ad Litem's report to the district court,
leading to a “possibility of irreparable prejudice” to his case.
Thus, Glen Martin does not assert that actual prejudice occurred,
just that it might have occurred. “Whether to allow a motion for
mistrial is a decision committed to the sound discretion of the
trial court, and its decision in this regard will not be overturned
on appeal unless an abuse of that discretion is established.”
State v. Ward, 354 N.C. 231, 248, 555 S.E.2d 251, 263 (2001). A
review of the portion of the transcript dealing with the disclosed
conflict indicates that counsel for the Guardian ad Litem came
forward to disclose the conflict the day after learning of it andthe district court questioned him on the record regarding whether
he had either spoken with the attorney about Glen Martin or seen
the file on Glen Martin's criminal case, which he answered in the
negative. Based on the record before us, we cannot hold that the
district court abused its discretion in denying Glen Martin's
motion for mistrial.
Lastly, Glen Martin argues the district court erred in
admitting into evidence the Guardian ad Litem's report to the court
because it contained hearsay statements by declarants who were
unavailable to him for cross-examination. He concedes the report
was submitted for consideration in the dispositional phase of the
termination proceedings. Unlike adjudicatory inquiries, which are
bound by the North Carolina Rules of Evidence pursuant to G.S. §
7B-804, dispositional hearings “may be informal and the court may
consider written reports or other evidence concerning the needs of
the juvenile.” N.C. Gen. Stat. § 7B-901 (2003). Glen Martin cites
no case law or statute imposing limitations on the district court's
consideration of a Guardian ad Litem report containing statements
and information obtained from third persons in determining the best
interests of the child, nor does he point to any specific
“unreliable” or “prejudicial” hearsay contained in the challenged
report. This argument is overruled. We affirm the district
court's order terminating Glen Martin's parental rights to Lindsey
Martin.
Scott Farmer
Respondent-father Scott Farmer first argues the district courterred in granting petitioner's motion to amend the petition to
terminate his parental rights to Tayla Martin to include an
allegation of abandonment under G.S. § 7B-1111(a)(7). We need not
address this argument because the petition also alleged neglect as
grounds for termination and the district court found and concluded
Scott Farmer neglected Tayla Martin. N.C. Gen. Stat. § 7B-
1111(a)(1) (2003).
Scott Farmer also argues the district court erred in denying
his motion for a directed verdict at the close of all the evidence
as to the allegations of neglect and abandonment. Due to our
resolution of his first argument, we need not evaluate his argument
as to the allegation of abandonment. Respondent Farmer also argues
the motion should have been granted as to the allegation of failure
to support under G.S. § 7B-1111(a)(4), but the petition does not
appear to contain any such allegation, nor was there mention of
such allegation in the transcript of the proceedings or order
entered by the district court. Thus, we review his contention only
with respect to the allegation of neglect.
As explained previously, a motion under Rule 41(b) of the
Rules of Civil Procedure made at the close of evidence in a bench
trial raises the question of whether “any findings of fact could be
made from the evidence which would support a recovery for
plaintiffs.”
Neasham,
supra. Thus, respondent Farmer's argument
amounts to a general contention that the evidence could not support
a finding and conclusion of neglect; it is not addressed to
specific findings and conclusions in the district court's order,nor did he assign error to any specific findings or conclusions in
the order. N.C. R. App. P. 10(a), (c)(3) (2003);
Neasham,
supra
(review of Rule 41(b) motion for dismissal did not require
evaluation of specific findings and court would not overlook
defendant's failure to assign error to specific findings).
Respondent Farmer argues that in order to support a finding of
neglect for purposes of terminating parental rights, there must be
evidence of neglect at the time of the termination proceedings,
especially where the respondent-parent has not had custody of the
child for a significant period prior to the hearing.
In re Young,
346 N.C. 244, 485 S.E.2d 612 (1997). In conjunction, he appears to
argue that because he never had custody of Tayla, he could not have
neglected her in the past. He also contends the evidence of his
substance abuse is not sufficient to support a finding of current
neglect without evidence of adverse impact on Tayla.
In re Phifer,
supra. We reject his arguments.
The record contains clear, cogent, and convincing evidence
that respondent Farmer, if not a legal parent at the time, acted as
a “caretaker”,
see G.S. § 7B-101(15) (2003), for Tayla during her
weeks of residency at his home after her birth and that during that
time he did not provide her with proper care and supervision and
placed her in an environment injurious to her welfare by using
heroin, provided her mother Linda Martin with heroin, left her at
home with her mother who often slept during the day and could not
be awakened by Lindsey and thus left infant Tayla to be cared for
by an eight-year-old.
See In re Blackburn, 142 N.C. App. 607, 543S.E.2d 906 (2001) (illegal drug use and inappropriately leaving
child in care of others considered evidence of neglect).
Respondent Farmer cites no law stating, and we find it illogical,
that a neglectful caretaker who later assumes legal parental status
gets to wipe the slate clean. Moreover, between
November 2000 and
2001, he was convicted on various dates of possession of stolen
goods, four counts of breaking and entering, injury to personal
property, two counts of worthless checks, and violated probation
resulting in his incarceration in April 2001.
Some of these
convictions are based on acts committed while Lindsey Martin lived
in Scott Farmer's home but before Tayla's birth and the evidence
indicates Scott Farmer used heroin with Linda Martin during that
period as well.
See N.C. Gen. Stat. § 7B-101(15) (2003) (in
determining whether a child is neglected, it is relevant whether
the child lives in a home where another child was neglected by an
adult who regularly lived there);
In re Blackburn, supra (repeated
criminal behavior and lawlessness considered evidence of neglect).
There is evidence that while in the DART program, respondent
Farmer made an effort to acknowledge paternity of Tayla. However,
he testified that he resumed heroin abuse in the company of Linda
Martin after his release from DART and visited with Tayla only
about four times in the two and a half months between his release
and his incarceration, though his visitation with her was not
restricted. Evidence of past neglect must be viewed in light of
the history of neglect and probability of repetition of neglect.
In re Shermer, supra. Because there was substantial evidence inthe record from which the district court could find and conclude
Tayla was a neglected juvenile as to respondent Farmer, the motion
for dismissal was properly denied. We affirm the district court's
order terminating Scott Farmer's parental rights as to Tayla Brooke
Martin.
Affirmed.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***