Appeal by respondent parents from orders dated 14 March 2002
by Judge Michael A. Sabiston in Randolph County District Court.
Heard in the Court of Appeals 16 April 2003.
O'Briant, Bunch, & Robins, by Thomas D. Robins, for
petitioner-appellee Randolph County Department of Social
Services.
Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for
respondent-appellant father.
Daniel F. Read for respondent-appellant mother.
William E. Mathers, Attorney Advocate, for guardian ad litem.
BRYANT, Judge.
Melissa Slabaugh Valdez (respondent-mother) and Lucio Valdez
(respondent-father) (collectively respondents) separately appealfrom orders dated 14 March 2002 terminating their parental rights
over their children Maribel, Jose, Julio, Isabel, and Tiburcio.
(See footnote 1)
Jose and Julio were adjudicated as neglected juveniles in an
order signed on 26 January 1998 based on evidence that Jose was
suffering from starvation and Julio was suffering from a lack of
treatment for medical problems including pneumonia, scabies, and a
staph infection. As a result of this adjudication, Jose was placed
in foster care, and legal custody over Julio was granted to the
Randolph County Department of Social Services (DSS), although he
was eventually placed, on a trial basis, with respondents. In an
order filed 11 May 2000, Maribel, Isabel, and Tiburcio were
adjudicated as neglected juveniles, and Julio was adjudicated
neglected for a second time.
(See footnote 2)
These adjudications were based on
respondents' admissions that the children: had been allowed to ride
unrestrained in a vehicle with respondent-father while he was
intoxicated; lived in unsanitary conditions, which involved, for
example, uneaten food left on the floor of the home; were not
appropriately clothed at school and often found to be dirty; and
were not properly supervised. On the same day, a second order was
filed: (1) granting legal custody of Maribel, Isabel, and Tiburcioto DSS; (2) continuing legal custody of Jose and Julio with DSS;
and (3) removing Maribel, Isabel, Tiburcio, and Julio from
respondents' physical custody. Petitions, dated 29 August 2000,
seeking the termination of respondents' parental rights for all
five children were subsequently filed.
The evidence presented at the termination of parental rights
(TPR) hearing beginning on 29 October 2001 tended to show, among
other things, that the respondents had separated following the
removal of the children from the home. Between April 2000 and
August 2000, there was no indication of where respondent-mother was
living, and DSS had been unable to contact her. Between August
2000 and the date of the hearing, DSS had seven different addresses
for respondent-mother, where she had resided with various friends
or family members. The longest respondent-mother remained at any
one of the addresses was for a period of approximately five months,
between May and October 2001. Respondent-mother had worked
sporadically for short periods but, at the time of the hearing, was
unemployed and reliant on others for transportation, shelter, and
support.
Following the respondents' separation, respondent-father had
moved in with another woman, entering a lease agreement to perform
work around the house in exchange for room and board. Despite
completing an alcohol rehabilitation class, there was evidence he
had continued to consume alcohol, including the night before the
final day of the TPR hearing, at which he did not appear. In
December of 2000 and April of 2001, respondent-father had engagedin acts of domestic violence toward the woman with whom he was
living, although he was not convicted of any criminal offense. DSS
performed a home study that “disapproved” respondent-father's home
for potential placement of the children.
In the orders terminating respondents' parental rights with
respect to Maribel, Julio, Isabel, and Tiburcio, the trial court
found by clear, cogent, and convincing evidence:
The children were removed from [respondents]
because [respondents] failed to provide a safe
environment . . . , failed to provide a clean and
healthy environment for the children, and failed to
provide proper hygiene for the children. . . .
Since the prior adjudications of . . . neglect,
[respondents'] conduct has been such so as to
demonstrate that the conditions which led to the
prior adjudications are still present. There is a
strong probability that there would be a repetition
of that neglect . . . [if] the children were
returned.
. . . .
. . . [Respondents'] activities since the children
were removed . . . show little change in those
circumstances which led to the children's removal,
and show there would be a strong likelihood that
the past history of neglect would be repeated.
Based on these findings, the trial court concluded that
grounds existed to terminate respondents' parental rights over
Maribel, Julio, Isabel, and Tiburcio, “pursuant to the provisions
of [N.C. Gen. Stat. §] 7B-1111(a)(1),” and that it was in the
children's best interests to terminate respondents' parental
rights.
In the order terminating respondents' parental rights with
respect to Jose, the trial court additionally found: [Jose] has been in the custody of [DSS] and placed
in foster care since August of 1997. . . .
Respondents have left [him] in foster care without
showing [to] the satisfaction of the [trial court]
that reasonable progress has been made within 12
months in correcting the conditions that led to the
removal of [Jose].
[Respondents] were ordered in October of 1997, to
maintain a stable residence and a clean, safe
living environment for their children. They have
failed to do this.
From these findings, the trial court concluded that “grounds exist
to terminate the parental rights of [respondents] . . . to Jose
. . . pursuant to the provisions of [N.C. Gen. Stat. §]
7B-1111(a)(2)” and that it was in Jose's best interest to do so.
_______________________________
The issue on respondent-mother's appeal is whether: (I) there
was sufficient evidence to support the finding of fact that there
was a strong probability the conditions leading to the prior
neglect adjudications would continue if the children were returned
to respondent-mother.
(See footnote 3)
The issues on respondent-father's appeal
are whether: (II) the trial court's findings support the conclusion
that respondent-father's parental rights should be terminated and
(III) the trial court abused its discretion in concluding
termination of respondent-father's parental rights was in the
children's best interests.
On an appeal from an order terminating parental rights, theorder will be upheld if the trial court's findings are supported by
the evidence and those findings support the conclusions of law.
See In re Allred, 122 N.C. App. 561, 565, 471 N.C. App. 84, 86
(1996).
Respondent-Mother's Appeal
I
Respondent-mother argues there was insufficient evidence to
support the trial court's finding that there was a strong
probability the conditions leading to neglect of the children would
continue if they were returned to her.
A trial court may terminate parental rights under N.C. Gen.
Stat. § 7B-1111(a)(1) upon a finding of neglect.
See N.C.G.S. §
7B-1111(a)(1) (2001). This finding of neglect, however, must be a
finding that the juveniles were neglected at the time of the
termination proceedings and may not be based solely on a prior
neglect adjudication.
See In re Ballard, 311 N.C. 708, 714-16, 319
S.E.2d 227, 231-32 (1984). When there is no evidence of neglect at
the time of the termination proceedings, “parental rights may
nevertheless be terminated if there is a showing of a past
adjudication of neglect and the trial court finds by clear and
convincing evidence a probability of repetition of neglect if the
juvenile[s] were returned to the parent.”
In re Pope, 144 N.C.
App. 32, 37, 547 S.E.2d 153, 156,
aff'd, 354 N.C. 359, 554 S.E.2d
644 (2001) (per curiam).
In this case, the children were adjudicated as neglected
juveniles prior to this termination proceeding on various groundsincluding: failure to properly feed, clothe, and supervise the
children; failure to provide proper healthcare and sanitary living
conditions; and allowing the children to ride unrestrained in a
vehicle driven by respondent-father while he was intoxicated. The
uncontradicted evidence shows that at the time of the termination
proceedings, respondent-mother was unemployed, had moved around at
least seven times from one temporary residence to another, living
in one place no more than five months, and remained reliant on
others to provide the basic necessities of life, including
temporary living quarters and transportation. This evidence
supports the trial court's findings that there was clear, cogent,
and convincing evidence of a strong probability the conditions
leading to the children being adjudicated as neglected would
continue if they were returned to respondent-mother.
See In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996)
(standard of review from a TPR hearing is whether there was clear,
cogent, and convincing evidence of the existence of grounds to
terminate respondents' parental rights).
Respondent-mother further contends that the trial court's
failure to make findings regarding her efforts to visit with the
children following their removal is evidence that the trial court
improperly considered only evidence of neglect prior to the removal
of the children from her custody instead of at the time of
termination proceedings. A trial court is, however, permitted to
admit and consider evidence of neglect prior to removal as long as
it also considers evidence of changed conditions.
See Ballard, 311N.C. at 715, 319 S.E.2d at 232. In this case, the trial court
properly considered prior evidence of neglect, evidence that those
conditions leading to neglect of the children had or had not
changed, and the danger of the continuation of those conditions if
the children were returned. Thus, the trial court did not err in
finding that there was a strong probability of the repetition of
the conditions leading to the children's neglect if they were
returned.
Respondent-Father's Appeal
II
Respondent-father argues the trial court's conclusion that his
parental rights should be terminated is not supported by the
findings of fact. With respect to Maribel, Julio, Isabel, and
Tiburcio, after a careful review of the record, we conclude that
the trial court's finding of a strong probability that the
conditions of neglect would continue and of the respondents'
failure to correct the conditions that gave rise to the neglect
adjudications support the conclusion that respondents' parental
rights should be terminated based on neglect of the children under
N.C. Gen. Stat. § 7B-1111(a)(1). See In re Parker, 90 N.C. App.
423, 430, 368 S.E.2d 879, 884 (1989).
With respect to Jose, the trial court based its ruling
terminating respondents' parental rights on section 7B-1111(a)(2),
which requires a showing that the parents “willfully left the
juvenile in foster care . . . for more than 12 months without
showing to the satisfaction of the court that reasonable progressunder the circumstances has been made in correcting those
conditions which led to the removal of the juvenile.” N.C.G.S. §
7B-1111(a)(2) (2001). Under this section, willfulness is less than
willful abandonment and does not require a showing of fault.
Oghenekevebe, 123 N.C. App. at 440, 473 S.E.2d at 398. Termination
of parental rights under section 7B-1111(a)(2) may be based on a
finding that parents left their children in foster care for more
than twelve months “without showing reasonable progress or a
positive response toward the diligent efforts of DSS.” Id.
In this case, the trial court found that on the date of the
order in March 2002, Jose had been left in foster care since August
1997 and that respondents had failed to show reasonable progress in
correcting the conditions leading to his removal by failing to
establish a clean and safe living environment as they had been
ordered to do in October 1997. The findings that respondents had
left Jose in foster care for over four years without making
reasonable progress to correct the conditions that led to his
removal, as they had been ordered, are sufficient to justify the
conclusion that grounds for terminating respondents' parental
rights existed under section 7B-1111(a)(2). See id.
III
Respondent-father also contends the trial court erred in
concluding it was in the children's best interest to terminate his
parental rights.
If a trial court finds grounds upon which to terminate
parental rights, the trial court “shall issue an order terminatingthe parental rights . . . unless the [trial] court shall further
determine that the best interests of the juvenile require the
rights of the parent not be terminated.” N.C.G.S. § 7B-1110(a)
(2001). In this case, the trial court properly found grounds for
terminating respondents' parental rights. The trial court heard
extensive testimony of events and circumstances both prior to and
after the removal of the children, and made specific findings of
fact regarding those events and circumstances. Based on this
record, because the trial court properly determined grounds
supporting the termination of parental rights, it did not abuse its
discretion in concluding it was in the children's best interests to
terminate those parental rights. See In re Guynn, 113 N.C. App.
114, 120, 437 S.E.2d 532, 536 (1993) (trial court's conclusion to
terminate parental rights after finding grounds to do so is
reviewed for abuse of discretion). Accordingly, the trial court
did not err in terminating respondents' parental rights.
Affirmed.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
Footnote: 1