In the Matter of: D.S. & D.M.S., (03-572) 05/04/2004

Appeal by respondent from order entered 17 September 2002 by Judge Yvonne Mims Evans in Mecklenburg County District Court. Heard in the Court of Appeals 28 January 2004.

    Mecklenburg County Attorney Marvin A. Bethune, by Associate County Attorney J. Edward Yeager, Jr., for petitioner-appellee.

    Leslie C. Rawls, for respondent-appellant.

    No brief filed on behalf of the Guardian Ad Litem.

    GEER, Judge.

    Respondent C.D., the mother of the minor children, appeals from the trial court's order terminating her parental rights. Because we hold that the trial court's findings of fact supported its conclusions of law and the trial court did not abuse its discretion in concluding that termination of respondent's parental rights was in the best interest of the children, we affirm.
    In appealing from the order terminating her parental rights, respondent did not assign error to the trial court's findings of fact apart from general statements that "[t]he trial court erred by finding facts that are not supported by the evidence" and that thecourt's "finding that grounds exist to terminat[e] Appellant- Mother's parental rights . . . is not supported by clear and convincing evidence." It is, however, well-established that "[a] single assignment [of error] generally challenging the sufficiency of the evidence to support numerous findings of fact, as here, is broadside and ineffective." Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985).
    Since respondent did not specifically assign error to any of the trial court's many findings of fact supporting its order, those findings are deemed to be supported by competent evidence and are conclusive on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal."). Those findings and the trial court's other prior unchallenged orders establish the following facts.
    Respondent has a history of substance abuse, including while she was pregnant. On 18 May 2001, respondent had just completed a substance abuse detoxification program and enrolled in a residential treatment facility in Charlotte, North Carolina. The following day, on 19 May 2001, respondent gave birth to twins D.S. and D.M.S. ("the children"). The children were both diagnosed with in utero growth retardation, prompting the Mecklenburg County Department of Social Services ("DSS") to become involved.    Respondent acknowledged to DSS that there was a history of domestic violence between the mother and the children's putative father, K.S.   (See footnote 1) She reported to DSS that she had moved to Mecklenburg County to escape K.S. Nevertheless, on 2 June 2001, respondent left her residential facility with K.S. and her newborn children and did not return until late the next day.
    On 4 June 2001, DSS filed a petition alleging that the children were neglected and dependent. The district court entered a non-secure custody order finding a substantial risk to the children of injury or abuse and granting DSS immediate custody of the children.
    The district court entered an order on 5 September 2001 adjudicating the children as neglected and dependent. Respondent had stipulated that she had a history of substance abuse, that she entered into a protection plan providing that she would comply with a substance abuse treatment program, that she left the residential program with K.S. for a day (taking the children with her), and that she was ultimately discharged from the program with no other residence. The dispositional hearing order directed that two issues be resolved in order to achieve reunification: domestic violence and the mother's substance abuse. The order required that the mother "come to Mecklenburg County to address her Substance Abuse [and] Mental Health Issues, or provide a reasonable alternative."    DSS social worker Chellye Hudson began working with respondent in June 2001 and together they developed a case plan. In that case plan, respondent agreed to complete domestic violence treatment, obtain and maintain appropriate housing, obtain and maintain stable employment, visit with the children on a regular basis, complete parenting classes, successfully complete substance abuse treatment, and maintain sobriety.
    During the period of 27 June 2001 through 13 September 2001, respondent never completed the domestic violence counseling, never attended parenting classes, and never obtained employment. Although respondent moved to Robeson County to live with K.S.'s mother, she did return for some visits with the children. Respondent was, however, "under the influence" during at least one visit. Respondent attended some substance abuse treatment programs in different facilities, but never completed the treatment.
    Stephanie Butler served as the social worker for the family from September 2001 through 11 January 2002. During that period, respondent moved from Robeson County to Cumberland County because of another incident of domestic violence by K.S. that resulted in his being charged with kidnapping. Although respondent lived with a fiancé until sometime in January 2002, they had an argument and she moved in with her mother. Respondent never obtained employment or housing that would permit her to provide a home for her children. She only visited her children on three occasions and provided no evidence of attending parenting classes. Although respondent attended substance abuse counseling through theCumberland County Mental Health Agency, she admitted to Ms. Butler that she had relapsed.
    In a permanency planning hearing order filed 20 December 2001 (following a hearing on 10 December 2001), the district court found that "[t]he respondent mother has made no progress on her case plan and has stated she has been unable to make progress due to a medical condition." The court granted the mother an additional three months to demonstrate progress on the court-ordered case plan.
    Bridget Happney was assigned as the social worker in January 2002. She had limited contact with respondent. Respondent moved first to Rocky Mount and then back to Charlotte to a "three- quarters" home called Oxford House. Respondent never provided Ms. Happney with evidence of having successfully completed substance abuse treatment, parenting classes, or domestic violence counseling. She failed to obtain employment or housing such that she could care for her children.
     After a review hearing, the court entered an order on 6 March 2002 changing the children's permanent plan to adoption and directing DSS to file a petition to terminate respondent's parental rights. Accordingly, on 13 March 2002, DSS filed petitions to terminate respondent's parental rights as to both children.
    Respondent obtained substance abuse treatment for approximately 28 days in April and May 2002. She subsequently relapsed.      The district court conducted hearings on the petitions on 11 July 2002 and 6 September 2002. At the hearing in September, respondent had been sober for approximately two months and had been employed for approximately two months. She had previously been employed with the Little Learners' Childcare Center for three months, but she voluntarily left because of a personal conflict with her supervisor. She had not by the date of the hearing attended domestic violence counseling or parenting classes. She was living with a friend, but acknowledged that the housing was not appropriate for her children.
    On 17 September 2002, the district court entered an order terminating respondent's parental rights to both children. From that order, respondent filed written notice of appeal to this Court on 18 September 2002.

    Because respondent did not assign error to any specific findings of fact, the sole question properly before this Court as to the adjudicatory phase is whether the trial court's conclusions of law are supported by its findings of fact. Although the trial court did not refer to a specific statutory ground, it appears that the trial court terminated respondent's rights based on N.C. Gen. Stat. § 7B-1111(a)(1) (2003).
    Under N.C. Gen. Stat. § 7B-1111(a)(1), the court may terminate parental rights upon a finding that "[t]he parent has abused or neglected the juvenile." A child is considered neglected "if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101." Id. N.C. Gen. Stat. § 7B-101(15) in turn defines a neglected child as:
        A juvenile who does not receive proper care, supervision, or discipline from the juvenile'sparent, . . .; 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 or adoption in violation of law.

N.C. Gen. Stat. § 7B-101(15) (2003).
    In deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child "at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (emphasis omitted). When, however, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, "requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). In those circumstances, a trial court may find that grounds for termination exist upon a showing of a "history of neglect by the parent and the probability of a repetition of neglect." Id.
    We hold that the trial court's findings were sufficient to establish neglect under N.C. Gen. Stat. § 7B-1111(a)(1). The findings establish a history of neglect in light of respondent's drug usage during her pregnancy, her departure with K.S. and the newborn twins from her residential treatment program despite K.S.'s history of domestic violence, and the prior adjudication of neglect based on respondent's stipulation to the material facts. See Ballard, 311 N.C. at 713-14, 319 S.E.2d at 231 ("[A] prioradjudication 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.").
    With respect to the probability of a repetition of neglect, the trial court found respondent "has not demonstrated that she can maintain sobriety for any period of time or that she can maintain stability with respect to housing and employment for any period of time." The court specifically found that respondent had "provided the [c]ourt no reason why she could not have been employed or provided for the children's care." Further, the findings establish that respondent has failed to comply fully with any aspect of the agreed-upon case plan and she has visited her children on only a limited basis (including on one occasion when she was under the influence of a drug). Visitation by the parent is a relevant factor in determining the probability of a repetition of neglect. Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407.
    The trial court's detailed findings of fact demonstrate that it engaged in the required analysis to determine whether, in light of current conditions, the prior neglect would likely be repeated. Even though respondent failed to assign error to these findings, we have reviewed the record and determined that the material aspects of the findings are supported by clear, cogent, and convincing evidence. They are also adequate to support the trial court's conclusion that respondent has neglected the children. See In re Davis, 116 N.C. App. 409, 414, 448 S.E.2d 303, 306, disc. review denied, 338 N.C. 516, 452 S.E.2d 808 (1994) (parents' failure to"obtain[ ] continued counseling, a stable home, stable employment, and [attend] parenting classes" sufficient to show a probability that neglect would be repeated if child were returned to the care of the parents). Since a court need only determine that one statutory ground exists in order to move to the dispositional stage, N.C. Gen. Stat. § 7B-1111(a), we need not address the second ground on which the trial court based its decision to terminate respondent's parental rights.
    In her second assignment of error, respondent contends that "[t]he trial court abused its discretion by finding that the best interest of the children [was] served by terminating Appellant- Mother's parental rights." The termination of parental rights statute provides:
        Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.

N.C. Gen. Stat. § 7B-1110(a) (2003). Our appellate courts have construed the language of the statute to vest discretion in the trial court to decide, when in the best interests of the child, to terminate parental rights. Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. "Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage." Id. (applying predecessor statute).     Respondent argues that the court abused its discretion in terminating her rights given evidence of her ongoing efforts to address her substance abuse, her approximately two months of sobriety, and her recent employment. An abuse of discretion "is shown only when the court's decision 'is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" Barton v. Sutton, 152 N.C. App. 706, 710, 568 S.E.2d 264, 266 (2002) (quoting State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)).
    In light of the evidence of respondent's repeated relapse into substance abuse, her complete inability to obtain appropriate housing for her children, her continued instability regarding housing and employment, and her limited visitation with her children, we cannot hold that the district court's decision was unreasonable or arbitrary. Moreover, Ms. Happney, the social worker assigned to this case from 9 January 2002 until the trial on 6 September 2002, testified that adoption was in the children's best interest, because:
        The children have been in custody for over 12 months . . . . Mom has not worked on the case plan. The children have been in the same foster home since they came into custody at two weeks old. They've bonded with their foster family. . . . These children need a stable and permanent home, and that can be provided for them through adoption.

See In re Howell, __ N.C. App. __, __, 589 S.E.2d 157, 161 (2003) ("The trial court did not abuse its discretion in deciding [the child's] best interests would be served by terminating respondent's parental rights and allowing [the child] to be adopted by thefoster parents who had cared for her since three weeks after her birth.").

    Affirmed.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1