An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1203


Filed: 15 July 2003


CAMERON DOYLE                    Gaston County
                            No. 99 J 98

    Appeal by petitioner from judgment entered 11 December 2001 by Judge Dennis Redwing in Gaston County Superior Court. Heard in the Court of Appeals 21 May 2003.

    WOMBLE CARLYLE SANDRIDGE & RICE, A Professional Limited Liability Company, by D. Christopher Howard, for petitioner appellant.

    Brynne Vanhettinga, Esq., for respondent appellee.


    The Gaston County Guardian Ad Litem Program (“petitioner”) appeals from the judgment of the trial court dismissing a petition to terminate the parental rights of Tammy (“Tammy”) and James Derrick Doyle (“James”) (collectively referred to as, “respondents”). For the reasons set forth herein, we affirm the judgment of the trial court.
    Cameron Doyle (“juvenile”) is the minor child of respondents. Juvenile was born on 15 January 1993. Shortly after his birth, the Gaston County Department of Social Services (“DSS”), was granted custody of juvenile when he tested positive for cocaine. At that time, juvenile's two siblings were also taken into custody by DSS. The siblings are not the subject of the matter before this Court.     In 1996, respondents were granted physical custody of juvenile; however, he was again placed in the custody of DSS in 1998. On 16 March 1998, the district court issued an order entitled “Need for Continued Custody” (“the order”), which allowed DSS to continue custody of juvenile. The order further provided that respondents were to obtain treatment for substance abuse, and establish a home appropriate for the return of juvenile. Respondents failed to comply with the order. As a result, the district court entered a second order on 28 June 1998, which declared that juvenile was a “neglected juvenile.” After the June, 1998 order was entered, a dispositional hearing was held on 3 September 1998. At the dispositional hearing, the court ordered respondents to enter into a service agreement with DSS and make the following changes in order to regain physical custody of juvenile:
        If Respondent/mother or Respondent/father desires to regain custody of the juvenile[], they shall obtain drug treatment and abstain from use of drugs, obtain gainful employment, establish a household and submit to a home study which must be positive, participate in vocational rehabilitation and submit to random drug testing. In addition, the Respondent/father shall continue with his mental health treatment and follow all recommendations of his therapist. The Respondent/parents must comply with the visitation schedule and if the Respondent/parents miss one visit without an emergency, then visits will be terminated.

    Again, respondents failed to make the necessary changes to regain custody of juvenile. Thereafter, DSS submitted a report to the court detailing respondents' lack of progress in complying with the goals set out for reunification. The DSS report stated thatany “efforts to reunite the family clearly would be futile or inconsistent with . . . juvenile's safety and need for a safe, permanent home within a reasonable period of time.” In February, 1999, the court entered an order to cease reunification of the family.
    On 10 March 1999, petitioner filed a petition to terminate the parental rights of respondents. The matter came before the trial court on 14 November 2001 and was heard over the course of two days. At the time of the hearing, juvenile remained in foster care. Tammy was present at the termination hearing and was represented by counsel. James did not participate in the proceedings. During the hearing, there was lengthy testimony regarding information contained in the court file concerning the family's history with DSS. Based on the evidence presented at the hearing, the trial court then made the following pertinent findings of fact:
        2. That the Petition herein alleges the following grounds for termination of the parental rights of the respondents:
            The mother and father have neglected the child in that they have caused the juvenile to live in an environment injurious . . . in that the parents are long term users of crack cocaine and marijuana . . .
            The mother and father have willfully left the child in foster care for more than 12 months . . . without showing reasonable progress . . . in that parents have a history of substance abuse and relapse, as well as suicide attempts and chronic neglect.
                    . . . The parents . . . have willfully failed to pay a reasonable portion of the cost of care for the child . . . in that they have paid no support or monies toward medical co-pays although requests have been made by DSS for them to do so.
        3. That a cease reunification order was entered by the Court in the abuse and neglect case in February, 1999. The Department's agent testified that the Department has no knowledge of respondent parents' activities after that time. No evidence was presented of neglect at the time of the termination proceeding.
        . . . .
        6. In the 12 month period preceding the filing of the petition herein, there is no evidence of chronic neglect. The evidence before the Court is that respondent mother made several attempts to contact the Department, even following a move to Lexington, North Carolina. Respondent mother testified without contradiction that she obtained transportation, even though she had no driver's license, in order to have visitations with her child. She repeatedly contacted the Department for instructions regarding the steps necessary to achieve reunification, and was told that no such instructions would be given her because of the cease reunification order which had been issued. Thereafter, the communications she received from the Department were periodic notices stating that new case workers were assigned to her case. She was unable to make contact with them.
        7. Within the relevant twelve month period, there is some evidence that respondent mother consumed marijuana early within that period. However, the evidence is also uncontradicted that she stopped doing this, and that there was no further drug use. There was no evidence of a relapse.
        8. Respondent mother testified that child support amounts were being garnished from her income at the rate of $16 per week. There was no evidence of the cost of care for the child;no evidence of what a reasonable portion of those costs of care might be; and no evidence of any demand for the reimbursement of medical co-pays or of any noncompliance with any such request.
        9. Upon motion by respondent at the end of all the evidence, the Court finds that, of the three counts alleged in the petition, evidence of any grounds upon which to proceed is either nonexistent or insufficient as a matter of law.

Based on the above-stated findings, the trial court entered the following conclusion of law:
        2. That the Petitioner has failed to show, by clear, strong and convincing evidence, facts sufficient to proceed upon the grounds alleged in the Petition.

The trial court therefore dismissed the petition filed by petitioner. From this judgment, petitioner appeals.


    Petitioner argues on appeal that the trial court erred in (1) failing to determine whether respondents made “reasonable progress,” and (2) failing to find evidence of “chronic neglect.” For the reasons stated herein, we affirm the judgment of the trial court.
    A proceeding for termination of parental rights involves two stages: (1) the adjudicatory stage, governed by section 7B-1109, and (2) the dispositional stage, governed by section 7B-1110. See N.C. Gen. Stat. §§ 7B-1109, 7B-1110 (2001); In re Huff, 140 N.C. App. 288, 290, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). At the adjudication stage, the petitioner must show by “clear, cogent and convincing evidence” theexistence of one or more of the statutory grounds for termination of parental rights set forth in section 7B-1111. N.C. Gen. Stat. § 7B-1109(e) and (f) (2001); In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). The clear, cogent and convincing evidentiary standard is a greater standard than the preponderance of the evidence standard, but not as rigorous as the proof beyond a reasonable doubt requirement. See Montgomery at 109-110, 316 S.E.2d at 252. The trial court may terminate the parental rights on the basis of several grounds, and “[a] finding of any one of the . . . separately enumerated grounds is sufficient to support a termination.” In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). In a termination proceeding, this Court “should affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law.” In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).
    Petitioner first assigns error to the trial court's interpretation of “within twelve months” as established in section 7B-1111(a)(2) of the North Carolina General Statutes. See N.C. Gen. Stat. § 7B-1111(a)(2) (2001). Specifically, petitioner contends that the trial court improperly excluded testimony regarding the lack of progress made by respondents in correcting conditions which led to juvenile's removal. Petitioner asserts that the trial court was required to examine evidence from March, 1999 through the date of the termination of parental rights hearing. We disagree.    Under section 7B-1111(a)(2) of our General Statutes,
        The court may terminate the parental rights upon a finding of one or more of the following:
        . . . .
        (2) The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made within 12 months in correcting those conditions which led to the removal of the juvenile.

N.C. Gen. Stat. § 7B-1111(a)(2) (emphasis added). The petitioner has the burden to establish that no reasonable progress existed during the relevant time period, In re Harris, 87 N.C. App. 179, 185, 360 S.E.2d 485, 488 (1987), and respondents have a duty to show a positive response to DSS efforts to help them improve the situation which led to the removal of the child. See In re Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676, 682 (1989).
    In the instant case, the following colloquy took place in the trial court:
        [Counsel for Petitioner]: . . . in 7(b)- 1111.2 . . . it doesn't say twelve months from the date of the proceeding in that particular statute. It doesn't say twelve months from the date of filing. It says for a period of twelve months, which I assume to be the twelve months after DSS has taken custody. . . .
        . . . .
        The Court: Common sense would tell me that it's twelve months prior to the filing of the petition, and that's what I [am] going to proceed under.
    Our Supreme Court recently held that “the twelve-month standard [is] within 12 months from the time the petition for termination of parental rights is filed with the trial court.” See In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81, 86 (2002) (concluding “that evidence gleaned from the twelve-month period immediately preceding the petition would provide the trial court with the most recent facts and circumstances exhibiting a parent's progress or lack thereof”). Upon finding adequate grounds for termination of parental rights, either party may offer relevant evidence as to the child's best interests. Id. “Such evidence may therefore include facts or circumstances demonstrating either: (1) the reasonable progress of the parent, or (2) the parent's lack of reasonable progress that occurred before or after the twelve-month period leading up to the filing of the petition for termination of parental rights.” Id. at 76, 565 S.E.2d at 86-87.
    In the instant case, the trial court failed to find adequate grounds for the termination of respondents' parental rights. In light of Pierce, the trial court was only required to consider evidence pertaining to reasonable progress within the relevant time period, which was prior to 10 March 1999, the date DSS petitioned the court to terminate respondents' parental rights. Therefore, the trial court correctly examined the time period from 10 March 1998 to 10 March 1999. Accordingly, this assignment of error is overruled.     
    Petitioner next argues that the trial court erred by concluding that there was “no evidence of chronic neglect.” Specifically, petitioner contends that the trial court failed to consider evidence of past abuse, neglect and the probability of future neglect. We disagree.
    “On appeal, when a trial court's order is reviewed as not being supported by the evidence we look to see whether there is clear, cogent, and convincing competent evidence to support the findings.” In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609 (1982). “The trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom. If a different inference may be drawn from the evidence, he alone determines which inferences to draw and which to reject.” In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985). Under section 7B-1111(a)(1) of the North Carolina General Statutes, a “neglected” juvenile is defined as follows:
        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.

N.C. Gen. Stat. § 7B-101(15) (2001). “Termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist.” In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 231-232 (1984) (emphasis added). “[E]vidence of neglect by a parent prior to losing custody of a child -- including an adjudication of such neglect -- is admissible in subsequent proceedings to terminate parental rights.” Id. “Thetrial court must consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” See id.
    While petitioner, in the case sub judice, is correct in arguing that the trial court should consider respondents' history of abuse and neglect, the petitioner fails to recognize that the trial court must also consider changed circumstances. We note that the record does indeed reveal that the trial court considered evidence of past abuse and neglect. Debbie Hensley (“Hensley”), a supervisor at DSS, gave lengthy testimony regarding respondents' history with DSS dating back to February, 1992. The only evidence presented by petitioner was based solely on respondents' past involvement with DSS. Hensley provided testimony that petitioner had no knowledge of respondents' activities after February, 1999. The majority of evidence provided by petitioner focused on Tammy's drug use; however, there was no evidence that Tammy had taken a drug test after November, 1998. Furthermore, the results of the November, 1998 drug test were not available to the court. On direct examination, Tammy gave the following testimony:
        Q: Have you talked to Debbie Hensley in the past two years?
        A: Not to my knowledge. I don't think I have in the past two years. I mean I've got letter -- I got a letter from her saying that she would no longer be the social worker, that she got a new job. That somebody else was going to be the social worker. And when I called, they were no longer the social worker. Somebody else was. I've probably had six or seven social workers that I've never met, but I get a letter saying that the social worker's changed.
    As stated supra, the trial judge determines the weight to be given to the evidence and the inferences to be drawn from the testimony. Here, after hearing testimony, the trial judge determined that the evidence presented by petitioner of neglect was “either nonexistent or insufficient as a matter of law” to support the allegation of neglect. We decline to disturb that conclusion on appeal. Accordingly, we overrule petitioner's final assignment of error.
    For the foregoing reasons, we affirm the order of the trial court dismissing the petition to terminate parental rights.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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