IN THE MATTER OF:
JMC Cabarrus County
JDC Nos. 01 J 148-51
SNA
SEC
Kathleen Arundell Widelski for Cabarrus County Department of
Social Services petitioner-appellee.
Robert W. Ewing for SMC respondent-appellant.
McCULLOUGH, Judge.
On 13 July 2001, the Cabarrus County Department of Social
Services (DSS) filed a juvenile petition alleging that four minor
children of SMC (respondent) were neglected and dependent.
Pursuant to that juvenile petition, DSS obtained non-secure custody
of the children, who were then placed either in foster care or
treatment facilities. DSS filed a motion to terminate respondent's
parental rights on 7 November 2001. At adjudicatory hearings on 7
February 2002 and 7 March 2002, DSS presented testimony from social
workers as to the home conditions and from school employees as to
the condition and conduct of the three oldest children.
On the basis of the testimony and reports presented at the
adjudicatory hearings, the trial court found the children wereextremely dirty or exhibited poor hygiene on numerous occasions
from 1989 until their removal from the home. Classmates made fun
of the three oldest children because they smelled of urine and
feces. School employees had given hygiene supplies to the
children, and on at least one occasion a school employee took the
older boy home in order for him to take a bath. The school also
provided a videotape concerning cleanliness for the children. One
school counselor testified to visiting respondent's home
approximately twenty-five to thirty times per year, while a school
social worker testified to making at least thirty contacts with
respondent because of school concerns.
The older boy had been suspended from school for threatening
another student and again for belligerent behavior. He had been
prosecuted for stealing a camera from school in the fourth grade.
The younger boy caused bruising of the older girl and also bit his
older brother. He was in a self-contained classroom because of his
behavior. The older girl was a selective mute and generally
refused to talk to adults prior to being removed from the home.
The trial court found that respondent had been diagnosed with
dysthymic disorder and that her full scale IQ was 67. While she
did appear to understand problems, she did not seem to understand
how to correct them. Respondent seemed unable to absorb
suggestions and did not appear capable of being responsible for the
children. She failed to provide the children lunches for school.
A DSS worker overheard respondent screaming “shut up” repeatedly at
the younger girl when she was still an infant. The trial courtfound that the home had a horrendous smell, that the refrigerator
contained rotten food such as ground beef packs, and that the home
was infested with roaches, flies, and insects. Although DSS once
paid someone to clean respondent's home and its workers had
provided instructional assistance to respondent on how to clean the
home properly, conditions did not improve.
DSS provided a Crisis Unit social worker from July to October
of 2000 to assist respondent in becoming more self-sufficient and
to prevent eviction due to her poor housekeeping. DSS workers
observed laundry packed up against a gas water heater on several
occasions after respondent had been warned of the fire hazard. On
at least eight occasions dating back to 1988, DSS substantiated
reports of neglect against respondent due to lack of supervision
and unsanitary conditions in the home. At the close of the
evidence from DSS and again at the close of all the evidence,
respondent moved to dismiss the petition for insufficiency of the
evidence. The trial court denied the motions. On 14 March 2002,
the trial court rendered its decision and subsequently adjudicated
the four minor children to be neglected and dependent in a 30 May
2002 order.
The trial court conducted a dispositional best interests
hearing on 29 April 2002. Employees from two residential treatment
facilities testified as to the two boys. The trial court found
that the older boy had been diagnosed as bipolar, oppositional and
suffering from post-traumatic stress disorder. He was ultimately
discharged from a Level Two treatment facility due to hisphysically and verbally aggressive behaviors. The younger boy
learned to read and write and also made significant improvement in
his hygiene while at a Level Three treatment facility. He now
attends school regularly and is not aggressive toward adults and
staff.
A foster parent and a foster care social worker testified as
to the two girls. The older girl was below grade level at
placement, but now is on the A/B honor roll. She likes going to
school and interacts with the therapist and others. Her hygiene is
no longer a problem, and she gained sixteen pounds in the first few
months with the foster parent. The younger girl is now a very
healthy two year old.
Respondent testified at the hearing that she has improved the
condition of her house. She indicated the children had been
reasonably good with issues of keeping themselves clean while in
her care. Respondent testified that she did not have incidents of
yelling or stalking by her children like those to which the
treatment facility workers had testified. She asserted that the
children would be better off with her.
The trial court rendered its decision terminating respondent's
parental rights on 14 June 2002 and entered its order on 5 August
2002. In its order, the trial court concluded that
there is a high probability of the repetition
of neglect should the children be returned to
their mother's care. It is also reasonable to
expect that [respondent's] incapability will
continue for the foreseeable future as
demonstrated in the mother's inability to
provide proper care to her children over thelast ten years. Efforts to return the
children to the mother's home would clearly be
futile and would be inconsistent with the
children's health, safety and need for a safe
permanent home within a reasonable period of
time.
After concluding that it was in the children's best interests to
remain in the custody of DSS, the trial court terminated
respondent's parental rights. From the trial court's adjudicatory
and dispositional orders, respondent appealed.
A termination of parental rights proceeding is a two-step
process. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252
(1984). In the adjudicatory stage, the trial court must establish
that at least one ground for the termination of parental rights
listed in N.C. Gen. Stat. § 7B-1111 (2003) exists. See N.C. Gen.
Stat. § 7B-1109(e) (2003). Nine possible grounds for termination
of parental rights are delineated in N.C. Gen. Stat. § 7B-1111(a).
In the adjudicatory stage, the petitioner bears the burden of proof,
and the trial court's “findings of fact shall be based on clear,
cogent, and convincing evidence.” N.C. Gen. Stat. § 7B-1109(f).
Once one or more of the grounds for termination are established, the
trial court must proceed to the dispositional stage where the best
interests of the child are considered. N.C. Gen. Stat. § 7B-1110(a)
(2003). The trial “court shall [then] issue an order terminating
the parental rights . . . unless the court shall further determine
that the best interests of the juvenile require that the parental
rights of the parent not be terminated.” Id.; see also In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). Respondent first contends the trial court erred by denying her
“motion to dismiss because the evidence in the light most favorable
to the petitioner failed to establish by clear, cogent and
convincing evidence that the minor children were in a state of
neglect at the time of the termination proceeding.” Her argument
is unpersuasive.
A motion to dismiss made pursuant to N.C.R. Civ. P. 41(b) at
the close of all the evidence in a bench trial raises the question
of “whether any findings of fact could be made from the evidence
which would support a recovery for [petitioner].” Neasham v. Day,
34 N.C. App. 53, 55, 237 S.E.2d 287, 288-89 (1977). A “court may
terminate the parental rights upon a finding . . . [that] [t]he
parent has . . . neglected the juvenile. The juvenile shall be
deemed to be . . . neglected if the court finds the juvenile to be
. . . a neglected juvenile within the meaning of G.S. 7B-101.” N.C.
Gen. Stat. § 7B-1111(a)(1). A neglected juvenile is “[a] juvenile
who does not receive proper care, supervision, or discipline from
the juvenile's parent . . . or who lives in an environment injurious
to the juvenile's welfare[.]” N.C. Gen. Stat. § 7B-101(15) (2003).
The record before this Court contains clear, cogent, and
convincing evidence to support the trial court's findings that
respondent neglected the children. On eight separate occasions
dating back to 1988, DSS substantiated reports of neglect against
respondent due to her lack of supervision of the children and to the
unsanitary conditions of her home. Respondent concedes in her brief
that “there was considerable evidence to show a long prior historyof neglect . . . [and] that there was evidence of neglect presented
by petitioner as late as July, 2001 . . . .” While she seeks to
argue there is no evidence of neglect after that time because the
children were in non-secure custody until the termination hearing,
her premise is flawed. Where evidence of prior neglect is
presented, “the 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.” In re Ballard, 311 N.C.
708, 715, 319 S.E.2d 227, 232 (1984). The trial court here clearly
made such a determination, having concluded that “[b]ased upon the
history of neglect of the children by the Respondent from 1988
through 2001, there's a high probability of the repetition of
neglect of the children if they would be returned to their mother's
care.” Because there is clear, cogent, and convincing evidence in
the record from which the trial court could find and conclude the
children were neglected juveniles, the trial court properly denied
the motion for dismissal.
Respondent next contends in a related argument that “the trial
court failed to make sufficient findings of fact to support its
conclusion of law that the minor children were in the state of
neglect at the time of the termination hearing.” Although her
observation is correct that the trial court made no findings of
neglect at the time of the termination hearing, her reliance upon
Ballard to support her argument is misplaced. Instead, our Supreme
Court in Ballard stated that “[i]n cases concerning termination of
parental rights based upon neglect, the trial court must considerevidence of changes in conditions up to the time of the hearing.”
In re Bishop, 92 N.C. App. 662, 671, 375 S.E.2d 676, 682 (1989)
(emphasis added). The Supreme Court explicitly held in Ballard
that “to require that termination of parental rights be based only
upon evidence of events occurring after a prior adjudication of
neglect which resulted in removal of the child from the custody of
the parents would make it almost impossible to terminate parental
rights on the ground of neglect.” Ballard, 311 N.C. at 714, 319
S.E.2d at 232. In addition to making numerous findings of fact as
to neglect which occurred between 1988 and July of 2001, the trial
court clearly considered changes in conditions before concluding
“there's a high probability of the repetition of neglect of the
children if they would be returned to their mother's care.” This
argument is overruled.
This Court need not address respondent's final argument in
which she contends “the trial court failed to make sufficient
findings of fact to support its conclusion of law that the
respondent is incapable of parenting her children due to her mental
limitations and that there was a reasonable probability that her
incapability would continue into the foreseeable future.” While
N.C. Gen. Stat. § 7B-1111 provides several grounds for termination
of parental rights, a finding of any one of those grounds is
sufficient to support termination. See In re Williamson, 91 N.C.
App. 668, 680, 373 S.E.2d 317, 323 (1988). Because the trial
court's conclusion that grounds for termination exist under the
neglect subdivision of N.C. Gen. Stat. § 7B-1111(a)(1) is supportedby its findings of fact, this Court need not address whether
termination was proper under the dependency subdivision of N.C.
Gen. Stat. § 7B-1111(a)(6). See In re Davis, 116 N.C. App. 409,
413, 448 S.E.2d 303, 305, disc. review denied, 338 N.C. 516, 452
S.E.2d 808 (1994). The trial court's adjudicatory and dispositional
orders are affirmed.
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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