An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1303

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2003

IN RE:    MARIBEL VALDEZ            Randolph County
         DOB: 08-06-98            No. 00 J 178
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IN RE:    JOSE VALDEZ                Randolph County
        DOB: 05-10-97            No. 00 J 179
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IN RE:    JULIO VALDEZ            Randolph County
        DOB: 08-06-96            No. 00 J 180
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IN RE:    ISABEL VALDEZ            Randolph County
        DOB: 10-04-93            No. 00 J 181
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IN RE:    TIBURCIO VALDEZ            Randolph County
        DOB: 11-16-92            No. 00 J 182

            

    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.

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    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
    In her notice of appeal, respondent-mother fails to state the specific orders from which she appeals and is thus in violation of Rule 3 of the Rules of Appellate Procedure. See N.C.R. App. P. 3. This violation subjects her appeal to dismissal. We, however, elect to treat her appeal as a petition for writ of certiorari to review the orders terminating her parental rights under Rule 21 of the North Carolina Rules of Appellate Procedure, which we hereby grant. See N.C.R. App. P. 21.
Footnote: 2
    The parties do not appeal any of the neglect adjudications.Footnote: 3
    Respondent-mother also argues the trial court failed to enumerate grounds for terminating her parental rights. We reject this argument as the trial court clearly stated the statutory sections upon which it was relying as grounds for terminating her parental rights.

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