On writ of certiorari filed by respondent mother to review
order filed 21 October 2002 by Judge Joseph M. Buckner in Orange
County District Court. Heard in the Court of Appeals 29 October
2003.
Northern Blue, L.L.P., by Carol J. Holcomb and Samantha H.
Cabe, for petitioner-appellee.
Rebekah W. Davis for respondent-appellant.
BRYANT, Judge.
Bonita Stanford (respondent) seeks review by writ of
certiorari of an order filed 21 October 2002 terminating her
parental rights over her daughter, Brianna Stanford (the child).
On 17 July 2001, seventeen-year-old respondent enrolled at
Hope Meadows, a residential substance abuse treatment program in
Orange County, North Carolina. While there, respondent gave birth
to the child on 12 August 2001. On 10 November 2001, respondent
prematurely left the program with the child even though she did not
have provisions or housing plans for the child. The next day, she
used cocaine. Two days later, the Orange County Department of
Social Services (DSS) took custody of the child under a non-secure
order. On 16 November 2001, a consent order was entered findingthe child to be dependent pursuant to N.C. Gen. Stat. § 7B-101(9)
and allowing DSS to continue to have custody of the child. On 15
and 17 November 2001, respondent had supervised visits with the
child.
With the help of DSS, respondent enrolled in a two-year
substance abuse treatment program in Asheville, North Carolina on
21 November 2001. Nine days later, she left the program despite
warnings from the program staff and DSS that her departure would
frustrate her reunification efforts. In December 2001, respondent
informed DSS that she was receiving outpatient substance abuse
services in Catawba County, North Carolina.
On 17 January 2002, an adjudication hearing was held,
resulting in an order filed 1 March 2002 finding the child to be
dependent. After the adjudication hearing, respondent moved to
South Carolina. She contacted a treatment program there but did
not enroll. Later, she moved back to Catawba County.
While the child was in DSS custody, Joan Hunt, the maternal
grandmother, began visiting the child on a bi-weekly basis and was
interested in having custody of the child. Respondent came to one
of those visits arranged for Ms. Hunt. At a 18 April 2002 hearing,
where respondent was absent, the trial court denied the request to
give Ms. Hunt custody due to a negative home study and allowed DSS
to cease reunification efforts.
At the 19 September 2002 termination hearing, where respondent
was again absent, the trial court rejected her counsel's motion to
continue and proceeded with the hearing. A staff member of DSStestified that respondent needed to enroll in a residential
substance abuse program, that the outpatient services she
reportedly received in Catawba County were inappropriate in light
of her needs, and that she had not met her goals for substance
abuse and mental health treatments, stability, and self-sustenance.
A foster parent, who had cared for the child for ten months, also
testified that he and his family were willing to adopt the child.
In an order filed 21 October 2002, the trial court terminated
respondent's parental rights on the grounds of neglect and
dependency.
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The issues are whether the trial court erred in: (I) denying
respondent's motion to continue the termination hearing; (II)
concluding respondent neglected her child; (III) permitting the
admission of allegedly hearsay statements in the DSS record; and
(IV) concluding that termination of parental rights was in the best
interest of the child.
I
Respondent first argues the trial court erred in denying her
motion to continue the termination hearing. Respondent stated in
her brief to this Court that because of her absence at the hearing,
evidence of her efforts to participate in treatments for substance
abuse and mental health and to obtain employment could not be
verified.
“A motion to continue is addressed to the
court's sound discretion and will not be
disturbed on appeal in the absence of abuse of
discretion. Continuances are not favored and
the party seeking a continuance has the burden
of showing sufficient grounds for it. The
chief consideration is whether granting or
denying a continuance will further substantial
justice.”
In re Humphrey, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003)
(emphasis added) (citation omitted) (affirming the trial court's
denial of the respondent's motion to continue the termination of
parental rights hearing when she could not provide evidence to
justify her absence from the hearing). In the instant case,
respondent provided no justification for her absence from the
termination hearing. Therefore, respondent failed to meet her
burden of demonstrating sufficient grounds for a continuance, and
the trial court did not abuse its discretion in denying
respondent's motion for continuance.
II
Respondent next contends the trial court's conclusion that
respondent neglected her child was not supported by clear, cogent,
and convincing evidence. We disagree.
A trial court may terminate the parental rights of a parent
upon a finding that she has neglected the juvenile within the
meaning of N.C. Gen. Stat. § 7B-101. N.C.G.S. § 7B-1111(a)(1)
(2003). As defined in N.C. Gen. Stat. § 7B-101, a neglected
juvenile is a “juvenile who does not receive proper care,
supervision, or discipline from the juvenile's parent . . . ; or
who has been abandoned.” N.C.G.S. § 7B-101(15) (2003). “'The
petitioner seeking termination bears the burden of showing by
clear, cogent and convincing evidence that such neglect exists atthe time of the termination proceeding,'”
In re Leftwich, 135 N.C.
App. 67, 71-72, 518 S.E.2d 799, 803 (1999) (citation omitted), and
that there is some physical, mental, or emotional impairment or a
substantial risk of such impairment of the juvenile as a result of
neglect,
In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340
(2003). On appeal, the trial court's findings of fact are binding
“where there is some evidence to support those findings, even
though the evidence might sustain findings to the contrary.”
In re
Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984).
In the instant case, the trial court found:
7. The juvenile was born while [r]espondent
. . . was a resident at Hope Meadows, a
facility which treats people with
substance abuse issues. . . .
8. [DSS] received a referral which led to
the filing of a juvenile petition on
November 10, 2001. The substance of the
referral was that [respondent] left Hope
Meadows with her baby . . . .
9. After leaving Hope Meadows, [respondent]
admitted to the Social Worker that she
had used drugs, had no provisions for the
baby, [and] had no housing or plans. She
admitted that her temporary residence was
not appropriate for a child.
. . . .
12. The last contact [DSS] had with
[r]espondent[] was January 9, 2002 when
she attended a Permanency Planning
meeting. She has not seen the juvenile,
nor inquired of her for the past eight
(8) months.
13. By failing to address her substance abuse
and drug addictions and by not making any
attempts at regaining custody of her
daughter, [r]espondent has demonstrated
her unwillingness and inability to be aparent.
These findings of fact are supported by the evidence. Respondent
had refused to complete several residential substance abuse
treatment programs after the birth of her child, against the advice
of DSS that the programs were appropriate to her needs and
necessary to her parent-child reunification goals. Besides the
problem of substance abuse, she also failed to receive mental
health treatment and maintain self-sustenance and stability.
Therefore, at the time of the termination proceeding, respondent
had not made meaningful progress in eliminating the conditions that
previously led to the removal of her child.
See Leftwich, 135 N.C.
App. at 72, 518 S.E.2d at 803 (affirming the trial court's order
terminating a mother's parental rights based on neglect and noting
that she refused to enroll in a residential treatment facility for
alcohol abuse and had not made meaningful progress in eliminating
that and other problems);
In re Bluebird, 105 N.C. App. 42, 48, 411
S.E.2d 820, 823 (1992) (affirming the trial court's order
terminating a mother's parental rights based on neglect and noting
that she failed to respond to the suggestions of DSS as to how she
could regain custody of her son and to avail herself of the
services to remedy the problems which caused her son to be placed
in DSS custody).
Evidence of neglect also includes respondent's lack of contact
with the child and concern for the child's welfare. As found by
the trial court, respondent had not seen nor inquired of her child
for the eight months before the termination of parental rightshearing.
See Bluebird, 105 N.C. App. at 48, 411 S.E.2d at 823
(noting the respondent attempted to contact her child and DSS only
two times during the eighteen-month period when the child was in
foster care). In addition, she did not participate in the
permanency planning review and termination hearings and provided no
justification for her absence.
Therefore, the trial court's order terminating respondent's
parental rights is supported by clear, cogent, and convincing
evidence that respondent's neglect of her child existed at the time
of the termination proceeding and that the child faced a
substantial risk of impairment as a result of the neglect. Having
concluded the trial court's determination of neglect is supported
by the evidence, we need not reach respondent's contention that the
trial court's finding as to dependence was not supported by clear,
cogent, and convincing evidence.
See In re Swisher, 74 N.C. App.
239, 246, 328 S.E.2d 33, 37 (1985).
III
Respondent further argues the trial court erred in admitting
hearsay statements in the court record prepared by DSS for the
hearing. The statements, made by Hope Meadows staff and recited in
the termination order, characterized respondent as impulsive,
immature, unable to care for her child, and not ready to stop using
drugs.
“Where there is competent evidence to support the court's
findings, the admission of incompetent evidence is not
prejudicial.”
In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d169, 175 (2001) (holding the admission of hearsay testimony of two
social workers was not prejudicial because the evidence, exclusive
of the testimony, supported the trial court's findings) (citing
In
re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996)). In
this case, the statements made by Hope Meadows staff were hearsay
and erroneously admitted; however, the error was not prejudicial
because the trial court's findings were otherwise supported by
clear, cogent, and convincing evidence, as indicated above.
Accordingly, the admission of the statements was not prejudicial,
and respondent's assignment of error is therefore overruled.
IV
Respondent finally contends the trial court erred in
concluding that the termination of parental rights was in the best
interest of the child. Specifically, respondent argues she is
becoming mature and has the support of her mother.
Termination of parental rights is a two-stage
proceeding. At the adjudication stage the
petitioner must show by clear, cogent and
convincing evidence that grounds exist to
terminate parental rights. If one or more of
the grounds listed . . . are shown, then the
court moves to the dispositional stage “to
determine whether it is in the best interest
of the child to terminate the parental
rights.”
In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000)
(citation omitted
). The trial court's determination of the child's
best interest is to be reviewed under an abuse of discretion
standard.
See id. at 745, 535 S.E.2d at 374.
The evidence does not support respondent's argument that
preserving her parental rights would be in the child's bestinterest. Respondent does not present persuasive evidence of
becoming mature and responsible. Moreover, the evidence indicated
the child's foster parents had cared for the child for the past ten
months and desired to adopt her. In their care, the child was
happy, healthy, and attached to the family.
See id. at 744-45, 535
S.E.2d 373-74 (holding the trial court did not abuse its discretion
in terminating the respondent's parental rights, based on the
evidence that the child had developed a close bond with the foster
family and that the respondent had not demonstrated she could
adequately provide for the needs of the child).
For the reasons herein, we hold the trial court did not abuse
its discretion in terminating respondent's parental rights.
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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