An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-10


Filed: 18 November 2003

JOSHUA NEECE,                         Randolph County
DOB: 9/12/85                        No. 00 J 46

    Appeal by Tracey Whatley, respondent mother, from order entered 11 July 2002 by Judge V. Bradford Long in Randolph County District Court. Heard in the Court of Appeals 27 October 2003.

    T.C. McCahan, for Randolph County Department of Social Services, petitioner-appellee.

    Elizabeth A. Hansen, for Tracey Whatley, respondent-appellant.

    HUDSON, Judge.

    Tracey Whatley (respondent) is the mother of Joshua Neece, a juvenile born on 12 September 1985. She appeals from an order terminating her parental rights.
    The juvenile first came into the custody of the Randolph County Department of Social Services (“DSS”) on 3 October 1996. He was formally adjudicated as neglected by order signed 12 November 1997. DSS filed a petition to terminate parental rights on 3 March 2000 and filed an amended petition on 29 May 2001. The court held the adjudicatory hearing on 12 July 2001. Present for the hearing were counsel for petitioner, counsel for respondent and counsel on behalf of the guardian ad litem. Neither biological parent appeared for the hearing. At the conclusion of the hearing thecourt rendered a decision terminating the parental rights of both parents. The court entered a written order on 11 July 2002. Respondent gave timely notice of appeal and filed the record on appeal on 3 January 2003.
    Respondent first contends the court erred by denying her motion for a continuance of the hearing to permit her attendance. A motion for continuance is ordinarily addressed to the trial court, whose ruling will not be disturbed absent a showing of abuse of discretion. State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). The denial of a motion to continue is grounds for a new trial only when the movant shows that the denial was erroneous and prejudicial to the movant. State v. Walls, 342 N.C. 1, 24-25, 463 S.E.2d 738, 748 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996).
    We conclude the court did not commit error. In denying the motion, the court found that service of notice of the hearing had been unsuccessfully attempted by mail and by personal service on respondent at her last two known addresses. Counsel for respondent stated that he had “tried every address and telephone number that [he knew] of in order to try and get in touch with her, and unsucessfully.” Counsel, who had represented respondent from the beginning, also indicated that he had admonished respondent the last time he saw her on 23 May 2001 to remain in contact with the juvenile and DSS.
    Respondent next contends the court erred by denying her motion to dismiss for insufficient evidence. In a proceeding to terminateparental rights, the court may allow a motion to dismiss made at the close of the petitioner's evidence if it determines that the petitioner has not made a showing of a right to relief or that, even if the petitioner has made a colorable claim, the respondent is entitled to judgment on the merits. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 909 (2001). The motion may be granted only in the clearest case. In re Becker, 111 N.C. App. 85, 92, 431 S.E.2d 820, 825 (1993).
    Petitioner alleged in the amended petition to terminate respondent's parental rights the following grounds: (1) respondent neglected the juvenile; (2) respondent willfully left the juvenile in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress had been made in correcting the conditions which lead to the removal of the juvenile; (3) respondent willfully failed to pay a reasonable portion of the cost of care for the child during a continuous period of at least six months next preceding the filing of the petition; and (4) respondent willfully abandoned the juvenile for a period of at least six consecutive months next preceding the filing of the petition. Any one ground is sufficient to terminate parental rights. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984).
    As defined in N.C. Gen. Stat. § 7B-101(15), a neglected juvenile is one    
        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 providednecessary 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). A juvenile has been abandoned, and thus neglected within the foregoing definition, if the parent withholds her presence, love, care, affection, support and maintenance. In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982). To terminate parental rights on the ground of neglect, the petitioner must present clear, cogent and convincing evidence that (1) the juvenile is neglected within the definition established by N.C. Gen. Stat. § 7B-101(15) and (2) the juvenile has sustained, or has a substantial risk of sustaining, some physical, mental or emotional impairment as a consequence of the neglect. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499, 501 (2000).
    We find ample evidence in the record to support findings of grounds to terminate respondent's parental rights. The evidence shows that when the original juvenile petition was filed alleging the juvenile was neglected, respondent was not providing the juvenile with food and shelter and her whereabouts were unknown. Respondent stipulated in open court on 3 April 1997 that she was guilty of neglecting the juvenile by engaging in excessive drinking and cocaine use, by failing to provide for the care of the child in her absence, and by abandoning the juvenile. The court ordered respondent to seek and maintain gainful employment, establish a clean and safe living environment, seek and obtain a substanceabuse assessment, attend parenting classes, and submit to random drug screening. The testimony of various witnesses established that respondent did not satisfy these requirements.
    Angel Outen, who was the juvenile's foster case social worker, testified that she became involved in the juvenile's case in September 1997. She could not recall respondent ever having a job. Respondent changed residences frequently, often after incarcerations in jail. Respondent started parenting classes but never completed them. Respondent has never contributed to the care of the juvenile since he was removed from her home. On 14 November 1997, 4 February 1998 and 4 September 1998, respondent refused to submit to drug testing. Respondent tested positive for marijuana, cocaine and alcohol on 24 February 1998, 24 March 1998, and 21 April 1998. She tested positive for cocaine on 4 June 1998 and 22 May 2000. Respondent attended only five of 22 visits scheduled with the juvenile from 15 June 1998 to 23 March 2000. Respondent has not visited the juvenile since 23 March 2000. Petitioner offered to provide transportation to these visits but respondent failed to take advantage of the offer.
    Margaret Malpass, a clinical social worker at Randolph County Mental Health who has been responsible for the juvenile's treatment from October 1997 to October 2000, testified that respondent's behavior has had an adverse effect upon the juvenile's emotional health. The juvenile has expressed anger, sadness, emotional pain and disappointment about his mother's false promises to remedy the conditions that led to his removal from the home so he could bereturned to her custody. The juvenile was particularly upset in April 2000 after learning that respondent had cheated on a drug test.
    Doug Zeller, a clinical social worker at the Children's Treatment Center in Laurinburg, a residential treatment facility for emotionally-disturbed juveniles, testified that the juvenile was referred to his facility because of “significant emotional behavioral issues, much of which originated in the home setting.” [T. 6]. During the one and one-half years the juvenile resided at the facility, respondent visited the juvenile at most two times. Respondent wrote letters sporadically, sometimes writing three or four letters per month and then not writing at all for a period of two to four months. During the last three to four months of treatment, the juvenile received no contact, whether in the form of letters, telephone calls or visits, from respondent.
    Sue Allen, the juvenile's therapeutic foster parent for a total of approximately two years, testified that the juvenile became very upset in 2000 when respondent tested positive for drugs. During the time the juvenile resided with her, respondent called only twice and never visited the juvenile.    
    Finally, the juvenile testified that the last time he resided with respondent was when he was the age of twelve. He witnessed his mother consume crack cocaine and drink alcohol in his presence. He often had to clean up her empty liquor bottles. Respondent repeatedly disappointed him by failing to follow through with promises that she would do everything in her power to obtain hisreturn to her home. The last time he saw respondent was approximately one year prior to the hearing. Although respondent mailed him cards while he was in the treatment center at the age of twelve or thirteen, respondent has not mailed any cards to him since that time. The juvenile requested that respondent's parental rights be terminated because he is better able to cope without her involved in his life.
    Finally, respondent contends the court abused its discretion by finding that termination of respondent's parental rights is in the child's best interest. Respondent argues that given the juvenile's advanced age, termination of parental rights serves no useful or valid purpose.
    When grounds for terminating parental rights are present, the court then determines whether it is in the best interests of the child to terminate the parental rights. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 615 (1997). Relevant evidence as to the child's best interests may include facts or circumstances demonstrating the reasonable progress, or lack thereof, of the parent before or after the twelve-month period leading up to the filing of the petition for termination of parental rights. In re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86-87 (2002).
    We cannot say the court abused its discretion given respondent's longstanding history of neglecting the needs of the juvenile and respondent's lack of contact with the juvenile during the months leading to the hearing. As a consequence of her failure to remain in contact and make her whereabouts known to herattorney, respondent failed to appear for the hearing to terminate rights. It is noteworthy that the juvenile, himself, requested that his mother's parental rights be terminated and that he observed that his behavior and emotional health improved when his mother was not involved in his life. Although he turned eighteen in September 2003, we believe that termination of respondent's parental rights serves to prevent respondent from enjoying the rights and privileges that accrue from parenthood, such as the right to inherit and to make decisions regarding medical treatment, which may continue even after he reaches the age of majority, and allows any petition to adopt to proceed.
    We hold the court's findings of fact are grounded on competent evidence and these findings support the court's conclusions of law. The order terminating respondent's parental rights is
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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