An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-727


Filed: 6 April 2004

    JMC                             Cabarrus County
    JDC                             Nos. 01 J 148-51

    Appeal by respondent from orders entered 30 May 2002 and 5 August 2002 by Judge Michael G. Knox in Cabarrus County District Court. Heard in the Court of Appeals 15 March 2004.

    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.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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