An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1244


Filed: 15 July 2003

IN THE MATTER OF:                    Iredell County            
                                No. 97 J 6

    Appeal by respondent from judgment entered 21 February 2002 by Judge James Honeycutt in Iredell County District Court. Heard in the Court of Appeals 24 April 2003.

    Janet K. Ledbetter, for respondent-appellant.

    Thomas R. Young, for petitioner-appellee.

    Crosswhite, Edwards and Crosswhite, P.A., by Andrea Edwards, for Guardian ad Litem-appellee.

    LEVINSON, Judge.

    On 16 January 1997, the Iredell County Department of Social Services (DSS) (petitioner) filed its first juvenile petition in this case, wherein it alleged the minor child was neglected and dependent. The minor child was subsequently adjudicated to be neglected and abused, and on 20 March 1997, pursuant to court order DSS assumed custody of her. The minor child was returned to the care of her mother, respondent Janice Duncan, on 26 October 2000. On 20 June 2001, petitioner filed a new juvenile petition alleging the minor child was neglected, and she was taken into petitioner's custody. On 19 July 2001, the minor child was again adjudicated to be neglected. Following a dispositional hearing, the trial courtordered petitioner to retain custody of the minor child and cease reunification efforts.
    On 24 October 2001, petitioner moved to terminate the parental rights of respondent in the minor child. Following a hearing, on 25 February 2002, the trial court terminated the parental rights of respondent. Respondent gave timely notice of appeal.

    Where the trial court is the trier of fact, it is empowered to assign weight to the evidence presented at trial. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397-98 (1996). If there is competent evidence to support the trial court's findings of fact and conclusions of law, then they are binding on appeal even where there exists evidence to the contrary. Id. “On appeal, the standard of review from a trial court's decision in a parental termination case is whether there existed clear, cogent, and convincing evidence of the existence of grounds to terminate respondent's parental rights.” Id. (quoting In re Becker, 111 N.C. App. 85, 92, 431 S.E.2d 820, 825 (1993)).
    A proceeding for termination of parental rights involves a two part inquiry. First, the trial court “shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent.” N.C.G.S. § 7B-1109(e) (2001). Second, upon a finding “that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating theparental rights of such parent . . . unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.” N.C.G.S. § 7B-1110(a) (2001). Although the court is required to apply different evidentiary standards at each of the two stages of adjudication and disposition, there is no requirement that the stages be conducted at two separate hearings. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, cert. denied, 318 N.C. 283, 347 S.E.2d 470 (1986).
    N.C.G.S. § 7B-1111 (2001) provides, in pertinent part, that a trial court may, in its discretion, terminate parental rights upon finding any one of the following:
        (a)(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.

        . . . .

        (a)(9) The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home.

N.C.G.S. § 7B-1111(a)(1) and (9) (2001). A finding of any one of the enumerated grounds is sufficient to support the termination of parental rights. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984).
    The trial court found, in part:        10. Clear, cogent and convincing facts sufficient to establish grounds to terminate the Respondent Mother's parental rights have been provided to the Court which the Court specifically recites as follows:

        . . . .

        (c) A TPR action was filed as to both parents, the same being involuntarily dismissed in April 1998 as to the mother while termination of parental rights was granted as to Tim Kale [the minor child's father].

        . . . .

        (f) The Respondent Mother's parental rights have been terminated as to three other children named in the motion. . . . Of six total children born to mom, including [the minor child], none is now residing with her, all having been adopted except [the minor child].

        (g) The orders and reports received into evidence document that substance abuse by mother and Tim Kale has been a long-term concern of the Department of Social Services, the [Guardian Ad Litem] and the Court. Both the Respondent Mother and Tim Kale have been ordered repeatedly to obtain and follow through with substance treatment as far back as 1998. The mother has never completed the recommended treatment, and has scarcely attended recommended AA meetings. She still expresses no commitment to do so, stating to the Court that she abstains from alcohol without formal treatment. Although Petitioners have failed to prove that mom regularly consumes alcohol, they have proved that she continues to have regular contact with [Tim Kale], a chronic alcoholic by the mother's own admission. The mother understands and believes that a person who has been diagnosed an alcoholic will continue to be . . . afflicted with alcoholism throughout their life. Nonetheless, she minimizes the application of her general belief to the specific facts of her life.

        (h) The Respondent Mother has no adequate concept of the effect of Tim Kale and hisalcoholism on herself or [the minor child] even while acknowledging that, in the past, her relationship with Tim Kale was not good for [the minor child] and has led to episodes of domestic violence which the child has observed on multiple occasions. She understands that Tim Kale has been ordered to have to contact with the child. However she does not have the will or ability to keep him away from the child. She justifies her actions by making statements such as, “He's her father,” even though his parental rights were terminated years ago.

        (i) The Respondent Mother acknowledges that Tim Kale is still a part of her life, a fact that was confirmed by testimony from witnesses who have seen Tim around the mother's home within the past month. The Mother further acknowledged that Tim Kale receives some of his mail at her home which strongly suggests that he resides with the mother, although [the Mother] denies this. Further, the mother has admitted that [the minor child] had been around Tim Kale when he was intoxicated and that she had gone to the trouble of taking the child to visit Tim Kale on one occasion. The mother cannot appreciate that Mr. Kale has not changed his conduct and will not change his conduct and that because of this, he continues to be a threat to the safety of the child.

        (j) The last time the Department of Social Services took custody of the child was the result of a domestic violence incident between the mother and Tim Kale during June 2001. [The Mother] minimizes the extent of the violence and its effect on the child, stating to the Court, in reference to Tim Kale, “he doesn't mean to do what he does;” “everyone's not perfect;” and that she has only been hit “a few times.” [The Mother] states that she can overlook his conduct and has urged the child to do the same, explaining to the child that, “Daddy gets angry when he has too much to drink.” [The Mother] claims that [the minor child] understands what she is trying to convey to her concerning Mr. Kale.

        (k) The Court finds that, overall, the child has been exposed to Tim Kale's alcoholism and temper in the past and this has been    detrimental to the child. Because of [the Mother's] lack of commitment to staying away from Mr. Kale, it is likely that the child would be exposed to alcohol and violence if the child were ever returned to mom, there being a repetition of the conditions that led to prior findings of neglect.

    Respondent contends the trial court erred by finding sufficient grounds to terminate her parental rights. Respondent, citing In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), argues the trial court erred in failing to “consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” Id. at 715, 319 S.E.2d at 232. Ballard mandates “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.” Id. In sum, respondent argues she has “done everything required by the Iredell County DSS except keep Tim Kale away from [the minor child].”
    The trial court's finding of fact 10(l) reflects that it did consider respondent's progress, wherein it explicitly found:
        The Respondent Mother has made progress in her personal situation over the years. She has maintained employment at a Wendy's Restaurant for several years. She has also maintained a residence, a mobile home, at Jane Sowers Road in Statesville, North Carolina. Additionally, she did attend parenting classes as ordered and cooperated with the Family Preservation program, participated in psychological evaluations[, and] has paid child support. Ms. Duncan had a vehicle at one point but it was seized when Tim Kale was arrested on a DWI charge while operating that vehicle.    Respondent's inability to keep the minor child from Tim Kale was one of the grounds enunciated by the trial court in determining that sufficient grounds existed to terminate respondent's parental rights. Tim Kale previously had his parental rights to the minor child terminated, and respondent has had her parental rights terminated as to three other children. Respondent admitted Tim Kale is an alcoholic and has physically abused her in the presence of the minor child. Respondent's unwillingness to keep the minor child from Tim Kale in conjunction with prior parental rights terminations create sufficient grounds to justify the termination of her parental rights as to the minor child pursuant to G.S. § 7B- 1111(a)(9). Furthermore, the trial court was presented with ample evidence of respondent's long history of drug abuse and neglect of the minor child. This evidence supports the trial court's termination of respondent's parental rights pursuant to G.S. § 7B- 1111(a)(1).
    The trial court concluded, in part:
        Clear, cogent and convincing evidence has been received which supports grounds for termination of the Respondent Mother's parental rights, to wit, that the minor child has been neglected within the meaning of 7B- 101 and that the parental rights of the Respondent Mother have been terminated by a court of competent jurisdiction in respect to Aingie Jean Sipes, Bryan Charles Sipes, Thomas Ray Kale, all former children of Respondent Mother and the Mother lacks the ability and willingness to establish a safe home.

    On this record, we find the trial court did not fail to consider “the best interests of the child and the fitness of the parent to care for the child at the time of the terminationproceeding” and did not err in concluding there were sufficient grounds to terminate respondent's parental rights. Ballard, 311 N.C. at 715, 319 S.E.2d at 232. This assignment of error, therefore, is overruled.
    Next, respondent contends the trial court “failed to recognize and give weight to the Constitutional protection afforded to family relationships by the Fourteenth Amendment.” The Fourteenth Amendment provides heightened protection against government interference with a parent's fundamental right to make decisions concerning the care, custody, and control of her children. Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558 (1972). That heightened protection allows a presumption that a parent will act in her child's best interests. Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). However, “justification for the paramount status [afforded a parent] is eviscerated when [that] parent's conduct is inconsistent with the presumption or when a parent 'fails to shoulder the responsibilities that are attendant to rearing a child.'” Owenby v. Young, __ N.C. App. __, __, 579 S.E.2d 264, 266 (2003) (quoting Price, 346 N.C. at 79, 484 S.E.2d at 534). “Once a court determines that a parent has actually engaged in conduct inconsistent with the protected status, the 'best interest of the child' test may be applied without offending the Due Process Clause.” Id. at __, 579 S.E.2d at 267 (quoting Price, 346 N.C. at 79, 484 S.E.2d at 534).    The trial court afforded ample deference to respondent's due process rights and did not err in finding there was sufficient evidence of grounds for the termination her parental rights. This assignment of error, therefore, is overruled.
    Respondent contends the trial court erred in terminating her parental rights as the “overriding purpose of the North Carolina Juvenile Code” is the “reunification of a child with the natural parent.” As support for this proposition, she cites N.C.G.S. § 7B- 100(4) (2001), which states, in pertinent part, the purpose of the juvenile code is to “provide standards for the removal, when necessary, of juveniles from their home and for the return of juveniles to their homes consistent with preventing the unnecessary or inappropriate separation of juveniles from their parents.” Respondent, however, fails to recognize that the same chapter to which she cites specifically provides for the procedure for termination of parental rights followed by the trial court in this case. N.C.G.S. § 7B-1100, et seq. (2001). We find respondent's argument without merit.
    Next, respondent argues the trial court erred “when it used the standard of preponderance of the evidence and ignored the clear, cogent and convincing evidence standard mandated by N.C.G.S. § 7B-1109(f).” Respondent's argument is without merit. The trial court explicitly stated that its findings were based upon “[c]lear, cogent and convincing facts.” Respondent's basis for asserting thetrial court's findings were not based on clear, cogent, and convincing evidence turns on the erroneous assumption that finding 10(l) is inconsistent with the trial court's other findings. Upon review, we find ample evidence from which the trial court could find that respondent neglected the child pursuant G.S. § 7B- 1111(a)(1) and has had her parental rights terminated as to her other children and lacks the ability or willingness to establish a safe home for the minor child pursuant to G.S. § 7B-1111(a)(9). We find this assignment of error without merit, and it is, therefore, overruled.
    Lastly, respondent contends the trial court erred in failing to conduct a “two-step process required by N.C.G.S. § 7B-1109 and N.C.G.S. § 7B-1110.” We agree with respondent that termination proceedings require a two part inquiry, an adjudicatory stage pursuant to G.S. § 7B-1109 and a dispositional stage pursuant to G.S. § 7B-1110. See In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). However, it is a long standing rule of this State that trial courts need not conduct two separate hearings for the adjudicatory and dispositional stages. See In re White, 81 N.C. App. at 85, 344 S.E.2d at 38. Here, although the trial court received both adjudicatory and dispositional evidence during the same hearing, it properly conducted both inquiries required by chapter 7B. First, it found by clear and convincing evidence sufficient grounds to terminate respondent's parental rights. See G.S. § 7B-1109. Then, it proceeded to determine that terminationwas in the minor child's best interests. See G.S. § 7B-1110. We find no error in the trial court's proceedings.
    Upon careful review, we find respondent's remaining assignments of error without merit. They are, therefore, overruled.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

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