An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1525

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2003

IN THE MATTER OF:

JAQUANA SHANEKE LEAK GAINEY            Guilford County                                     No. 01 J 24
    

    Appeal by respondent from order entered 9 April 2002 by Judge Wendy Enochs in Guilford County Superior Court. Heard in the Court of Appeals 30 June 2003.

    Guilford County Attorney's Office, by Deputy County Attorney Michael K. Newby, for petitioner Guilford County Department of Social Services.

    Rebekah W. Davis for respondent-appellant Anna Marie Gainey.


    TYSON, Judge.

    

I. Background

    Anna Marie Gainey (respondent) appeals an order terminating her parental rights as the mother of Jaquana Shaneke Leak Gainey, born 7 September 1990. On or about 24 January 2001, the minor child was placed in the legal and physical custody of the Guilford County Department of Social Services (“DSS”). DSS subsequently filed a petition to terminate the parental rights of respondent alleging that respondent: (1) neglected the minor child; (2) failed to pay a reasonable portion of support for the minor child for a continuous period of six months after the minor child had been placed in the custody of DSS; and (3) was incapable ofproviding the proper care and supervision of the minor child such that the minor child was dependent. On 9 April 2002, the trial court terminated respondent's parental rights based on the statutory grounds set forth in N.C. Gen. Stat. § 7B-1111(a)(1) (2001). Respondent appeals from the order terminating her parental rights.
II. Issue

    Respondent contends the trial court's conclusion that she neglected her daughter is not supported by sufficient, competent evidence or findings of fact. Respondent also assigns error to the trial court's finding and concluding that it was in the best interest of the child to terminate respondent's parental rights.
III. Termination

    A termination of parental rights proceeding is conducted in two phases: (1) the adjudication phase which is governed by N.C.G.S. § 7B-1109 and (2) the disposition phase which is governed by N.C.G.S. § 7B-1110. See In re Brim, 139 N.C. App. 733, 738, 535 S.E.2d 367, 370 (2000). During the adjudication stage, petitioner has the burden of proof by clear, cogent, and convincing evidence that one or more of the statutory grounds set forth in N.C. Gen. Stat. § 7B-1111 for termination exists. See N.C. Gen. Stat. § 7B-1109(e)-(f). The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. rev. denied, 353 N.C. 374, 547 S.E.2d 9(2001).
    If petitioner meets its burden of proof that grounds for termination exist, the trial court then moves to the disposition phase and must consider whether termination is in the best interests of the child. See N.C. Gen. Stat. § 7B-1110(a). The trial court has discretion, if it finds by clear, cogent, and convincing evidence that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the best interests of the child. In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Brim , 139 N.C. App. at 744, 535 S.E.2d at 373.
IV. Neglect

    We find the evidence sufficient to support the order terminating parental rights and affirm the decision of the trial court.
    In this case, the trial court terminated respondent's parental rights under the 7B-1111(a)(1) based upon a finding that the minor child was a “neglected juvenile” within the meaning of N.C. Gen. Stat. § 7B-101. Section 7B-101(15) defines "neglected juvenile" 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 oradoption in violation of law . . . .

N.C. Gen. Stat. § 7B-101(15). To prove neglect in a termination case, there must be clear, cogent, and convincing evidence (1) the juvenile is neglected within the meaning of N.C.G.S. 7B-101(15), and (2) “the juvenile has sustained 'some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment'” as a consequence of the neglect. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
    “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). “[T]ermination of parental rights for neglect may not be based solely on past conditions which no longer exist." Id. “[A] prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect." In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). If the child has been removed from the parents' custody before the termination hearing, and the petitioner presents evidence of prior neglect, including an adjudication of such neglect, then “[t]he trial court must also 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. Thus, where “there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless beterminated 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 were returned to [his or] her parents.” In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000). The trial court's decision to terminate parental rights is reviewed on an abuse of discretion standard. In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).
    In support of its conclusion that respondent's parental rights should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), the trial court entered the following findings of fact:
        2. . . . the Court specifically finds that the respondent mother has been known to the agency since the 1980's. She has had a case in treatment on and off since that time with a pattern of erratic and delusional behavior where the respondent mother complains of sexual abuse of first another juvenile and then this juvenile by various persons. All of the allegations have been unsubstantiated but the mother has persisted in her beliefs. During these long periods of erratic and delusional behavior have been followed by intervals of lucidity and previously none of respondent's children have been in the Department of Social Services' care. However, in the year 2000 allegations were investigated by the Department of Social Services that respondent mother had removed this juvenile from school and was possibly withholding water from the juvenile believing it had been poisoned by demons. Further, the respondent mother was refusing to allow her family or the DSS investigator to see and speak with the juvenile to insure her safety. The respondent mother barricaded herself and the child in her house and necessitating police intervention in order to gain access to the child.

        3. The Court finds that the juvenile was adjudicated neglected and dependent on May 14, 2001 and the respondent mother was ordered to execute a service agreement and comply withall its terms.

                        . . .

        6. The respondent failed to comply with the June 14 service agreement in that she never provided information concerning her residence, never gave medical releases or information concerning her medication; never provided releases for her medical providers and while she eventually went to a psychological evaluation she later insisted that someone had taken her place and therefore the evaluation was invalid and she subsequently failed to comply with the recommendations of the evaluation.

                        . . .

        8. The respondent mother failed to fully comply with the terms of [the 1 October 2001] service agreement also. Although the social worker was given her current residence and she signed releases for information concerning her mental health treatment and she also recently has provided employment information and allowed the social worker to make one home visit. She has, however, consistently not taken all of her prescribed medication and has not complied with the recommended Mental Health treatment as she refused to participate in intensive group treatment.

        9. The Court finds her failure to fully comply with Mental Health treatment is most significant as respondent has long been diagnosed with significant mental illness and has experienced numerous hospitalizations. . . .

        10. The Court finds that the respondent mother was originally diagnosed as having a bipolar disorder with psychotic features but after her latest John Umstead admission her diagnosis changed to one of paranoid schizophrenic. The Court finds that this is a life-long debilitating mental illness which significantly impacts her ability to adequately parent. Further the Court finds that only through therapy and strict medications designed to deal with the various facets of this disorder could an individualsuccessfully function as a parent with this illness.

        11. The Court finds that the respondent has been offered a comprehensive program called PACT to help her successfully deal with this illness but she has refused to participate. Further, the Court finds that she refuses to take all of her medication in particularly the medication that would assist in her coping with the delusional behavior as she refuses to accept that she suffers from dilutions [sic]. Further, the Court finds that she refuses to participate in intensive group therapy.

        12. The Court finds that the respondent has not fully cooperated with the Department of Social Services during the time that the juvenile has been in custody. Specifically that she has made numerous allegations against the social workers while they were working with her and these allegations include that they have either sexually molested the juvenile or facilitated other persons in doing so. Also, she has alleged that social workers have struck her with an automobile or have stolen personal property belonging to her. Further, she has engaged in inappropriate activity at the Department of Social Services Building including attempting to forcible [sic] remove the juvenile during a visit and has gone to the juvenile's school although in violation of court orders. Also, she has filed various lawsuits against numerous individuals including in the Department of Social Services' workers and in fact continues to file and participate in such actions up to the date of this trial.

        13. The Department of Social Services has attempted to work with the respondent mother by changing social workers on two separate occasions and has held meetings both with respondent, her attorney and Guardian Ad Litem in order to [diffuse] the situation without success.

        14. The Court also finds that during visitation with the juvenile, the respondent mother engaged in inappropriate activity such as standing over her, constantly questioning her in an irrational and disturbing manner,taking food from her, and insisting that visitation take place outside during extremely hot weather. Further, that much of the inappropriate behavior directed towards the various social workers was done by the respondent mother in front of the juvenile. The Court finds that this is inappropriate behavior. The Court notes that visitation ceased in this case in August after the incident described above.

        15. Further, the Court finds that without full compliance with the prescribed medication, and cooperation with both Mental Health professionals and the Department of Social Services' workers, the respondent mother could not foreseeable [sic] be able to adequately parent this juvenile in the future and that therefore she has made little if any progress towards reunifying with this juvenile at this time.

        16. The Court finds that it is in the best interest of the juvenile that the parental rights for this respondent mother be terminated. In particular, the Court finds that this juvenile is in a stable placement where she is doing well. The Court also finds that it is in the best interest of the juvenile to have a stable, secure environment, and that this environment is currently provided by the relative placement who is a potential adoptive placement.

    Respondent has not excepted to any of these findings, and they are presumed to be correct and supported by the evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). Nevertheless, after a review of the record, we determine these findings are based upon orders entered in the case and testimony and reports of DSS foster care social worker Rorie Staton, DSS supervisors Heather Skeens and Kristine Ficca, DSS social worker Nedra Turner, and clinical psychologist Dr. Michael McCullough.
    We conclude the trial court's findings are supported by clear,cogent and convincing evidence. We further hold that these findings support the court's conclusion that Anna Marie Gainey was subject to having her parental rights terminated pursuant to N.C. Gen. Stat. § 7B-1111 (1). See, e.g., In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984)(court may conclude child is neglected when a parent is unable to adequately provide for his/her child's physical and economic needs due to mental infirmity or to willfulness, it appearing that the parent is not able to correct those inadequate conditions within a reasonable time); In re Leftwich, 135 N.C. App. 67, 518 S.E.2d 799 (1999)(respondent mother had made no meaningful progress in eliminating the conditions that led to the removal of her children, including failing to enroll in an intensive treatment program).

V. Best Interests

    The evidence tended to show that after diligent efforts by DSS, respondent was not able to demonstrate that she could adequately provide for the needs of the child. Dr. McCullough specifically testified that respondent has a severe mental illness that would be expected to interfere with her parenting. He further testified that without taking her medications and following through with treatment, he did not think respondent would be able to function as a parent in the foreseeable future. Social worker Turner testified that the minor child had been placed with her aunt; that the minor child has become bonded with her aunt and enjoys living with her; that the minor child is on the A/B honor roll since being in school; and that the aunt has indicated shewould adopt the minor child and the minor child “seemed excited about it”. Based on the record, we cannot say that the trial court abused its discretion in finding and concluding that it was in the minor child's best interest to terminate respondent's parental rights. This assignment of error is overruled.
VI. Conclusion

    We find no prejudicial error in the proceeding to terminate respondent's parental rights. The order entered by the trial court is affirmed.
    Affirmed.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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