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.
TIMMONS-GOODSON, Judge.
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.
Affirmed.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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