IN THE MATTER OF:
M.R.M McDowell County.
M.A.K. Nos. 00 J 93-95
J.S.K.
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for
petitioner-appellee McDowell County Department of Social
Services.
Little, Sheffer & Golsan, P.A., by Andrew Sheffer, for
Guardian Ad Litem of the minor children.
Robert W. Ewing for respondent-appellant.
TIMMONS-GOODSON, Judge.
Ms. M. (“respondent”) appeals an order terminating her
parental rights as the mother of M.R.M., M.A.K. and J.S.K. In
March of 1999, the minor children were placed in the legal and
physical custody of the McDowell County Department of Social
Services (“DSS”). DSS subsequently filed a petition to terminate
the parental rights of respondent alleging that respondent: (1)
neglected the minor children (N.C. Gen. Stat. § 7B-1111(a)(1)); (2)
willfully left the children in foster care or placement outside the
home for more than 12 months without showing to the satisfaction ofthe court that reasonable progress under the circumstances has been
made in correcting those conditions which led to the removal of the
juvenile (N.C. Gen. Stat. § 7B-1111(a)(2)); and (3) failed to pay
a reasonable portion of support for the minor child for a
continuous period of six months after the minor child had been
placed in the custody of DSS (N.C. Gen. Stat. § 7B-1111(a)(3)).
Respondent's parents moved to intervene in the termination of
parental rights proceeding. The trial court denied their motion to
intervene except for the limited purpose of being allowed to
present evidence at the dispositional phase of the termination of
parental rights hearing in the event respondent chose not to
present the evidence that otherwise would be represented by the
maternal grandparents. On 6 August 2002, the trial court
terminated respondent's parental rights based on the statutory
grounds set forth in sections 7B-1111(a)(1) and (a)(2). Respondent
appeals from the order terminating her parental rights.
A termination of parental rights proceeding is conducted in
two stages: (1) the adjudication phase, which is governed by
N.C.G.S. § 7B-1109 and (2) the disposition phase, which is governed
by N.C.G.S. § 7B-1110. See In re Brim, 139 N.C. App. 733, 738, 535
S.E.2d 367, 370 (2000). During the adjudication stage, petitioner
has the burden of proof by clear, cogent, and convincing evidence
that one or more of the statutory grounds set forth in N.C.G.S. §
7B-1111 for termination exists. See N.C. Gen. Stat. §
7B-1109(e)-(f) (2003). The standard of appellate review is whether
the trial court's findings of fact are supported by clear, cogent,and convincing evidence and whether the findings of fact support
the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000)(citing In re Allred, 122 N.C. App. 561, 565,
471 S.E.2d 84, 86 (1996)), disc. review denied, 353 N.C. 374, 547
S.E.2d 9 (2001).
If petitioner meets its burden of proof that grounds for
termination exist, the trial court then moves to the disposition
stages and must consider whether termination is in the best
interests of the child. See N.C. Gen. Stat. § 7B-1110(a) (2003).
The trial court has discretion, if it finds by clear, cogent, and
convincing evidence that at least one of the statutory grounds
exists, to terminate parental rights upon a finding that it would
be in the best interests of the child. In re Blackburn, 142 N.C.
App. 607, 613, 543 S.E.2d 906, 910 (2001). The trial court's
decision to terminate parental rights is reviewed under an abuse of
discretion standard. In re Brim , 139 N.C. App. at 744, 535 S.E.2d
at 373.
Respondent contends the trial court's conclusion that she
neglected her children is not supported by sufficient, competent
evidence or findings of fact. We find the evidence sufficient to
support the order terminating parental rights and affirm the
decision of the trial court.
In this case, the trial court terminated respondent's parental
rights under 7B-1111(a)(1) based upon a finding that the minor
children were “neglected juvenile[s]” within the meaning of N.C.
Gen. Stat. § 7B-101. Section 7B-101(15) defines “neglectedjuvenile” as follows:
A juvenile 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 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). To prove neglect in a
termination case, there must be clear, cogent, and convincing
evidence (1) the juvenile is neglected within the meaning of
N.C.G.S. 7B-101(15), and (2) “the juvenile has sustained 'some
physical, mental, or emotional impairment . . . or [there is] a
substantial risk of such impairment'” as a consequence of the
neglect. In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501
(2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d
898, 901-02 (1993)).
“A finding of neglect sufficient to terminate parental rights
must be based on evidence showing neglect at the time of the
termination proceeding.” In re Young, 346 N.C. 244, 248, 485
S.E.2d 612, 615 (1997)(citing In re Ballard, 311 N.C. 708, 716, 319
S.E.2d 227, 232 (1984)). “[T]ermination of parental rights for
neglect may not be based solely on past conditions which no longer
exist.” Id. “[A] prior adjudication 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.” Ballard, 311
N.C. at 713-14, 319 S.E.2d at 231. If the child has been removed
from the parents' custody before the termination hearing, and thepetitioner presents evidence of prior neglect, including an
adjudication of such neglect, then “[t]he 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.” Id. at 715, 319 S.E.2d at 232. Thus, where
there is no evidence of neglect at the time of
the termination proceeding . . . parental
rights may nonetheless be terminated if there
is a showing of a past adjudication of neglect
and the trial court finds by clear and
convincing evidence a probability of
repetition of neglect if the juvenile were
returned to [his or] her parents.
Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501. The trial court's
decision to terminate parental rights is reviewed on an abuse of
discretion standard. Allred, 122 N.C. App. at 569, 471 S.E.2d at
88.
In support of its conclusion that respondent's parental rights
should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(1),
the trial court entered the following pertinent findings of fact:
14. By order entered May 4, 1999, the minor
children were adjudicated to be neglected
juveniles as defined by N.C. Gen. Stat. § 7A-
517(21), now recodified as N.C. Gen. Stat. §
7B-101(15). . . .
15. At the adjudication and dispositional
hearing held May 4, 1999, the respondent
mother stipulated to the following, among
other facts:
(a) The respondent mother suffers from a
medical condition of chronic migraine
headaches, and has been receiving Social
Security Disability Benefits since November,
1996. The respondent went through Toms
Rehabilitation Hospital Pain Program in
January, 1998 in order to manage her pain fromthe migraine headaches. In the course of
being treated for her migraine headaches, the
respondent mother has been prescribed various
narcotic medicines by various physicians.
(b) In an effort to control her migraine
headaches, the respondent mother has developed
a dependency to narcotic medications, and the
drug dependency coupled with her migraine
headaches has created situations, including
times during January and February, 1999, when
the respondent did not provide proper care and
supervision for the minor children.
(c) The respondent mother is in need of
the development of and adherence to a long-
term program to control her dependency on
narcotic medication so that said respondent
will be able to be attentive to the needs of
the minor children.
. . . .
(f) In or around January and February,
1999, the minor children were not receiving
proper care and supervision due to the drug
dependency of the respondent mother, and were
neglected juveniles as defined by N.C. Gen.
Stat. § 7A-512(21).
. . . .
16. Following a review hearing held September
21, 1999, and based upon the consent of the
parties, the Court found that the social
worker had secured a placement for the
respondent mother at an inpatient treatment
facility but that said respondent had not
followed through with the steps necessary to
attend the facility. The respondent mother
had visited emergency rooms and had been given
narcotic medication on June 8, 1999, July 29,
1999, August 23, 1999 and September 13, 1999,
and had been given Demerol at St. Joseph's
emergency room on August 4, 1999. Among other
things, the Court ordered that in the event
Dr. Acree should recommend it, the respondent
without delay should submit herself to
inpatient treatment at Hebron Colony or such
other facility as may be arranged by the
Department of Social Services, participate in
parenting classes, maintain a residence andkeep her household bills current.
. . . .
20. A permanency planning review hearing was
held June 5, 2000, where evidence was
presented by all parties. Among other
findings, the Court found by clear, cogent and
convincing evidence the following:
. . . .
(c) The Court's prior order of January
14, 2000, relieved the McDowell County
Department of Social Services of the duty to
make reasonable efforts to reunify the minor
children with the respondent mother, but
established a concurrent permanent plan to
continue to consider reunification of the
children with the respondent mother, while
also considering the placement of custody and
guardianship of the minor children with
relatives. The Court order stated that the
respondent mother was being allowed an
opportunity to submit herself to inpatient
treatment at Mt. Hebron Colony and demonstrate
that she is free from any addiction to
narcotic medicine and capable of providing
proper care, supervision and discipline to the
minor children.
(d) Since the review hearing held January
14, 2000, the McDowell County Department of
Social Services, although relieved of the
requirement to work toward reunification with
the respondent, continued to assist the
respondent by obtaining information on
treatment programs that would be free to the
respondent. The social worker found three
programs that would be available to the
respondent, all of the programs being free,
although lasting six months. Upon giving the
information to the respondent, she expressed
concern about the length of the programs, and
did not follow-up to enroll at any of the
programs. The respondent mother has continued
the use of narcotic medicine since January 14,
2000, having received narcotics on, at least,
the following occasions: January 26, 2000,
received Stadol at Memorial Mission Hospital;
February 7, 2000, received Stadol at MemorialMission Hospital; February 10, 2000, received
Stadol on two separate occasions at Memorial
Mission Hospital and received a prescription
for said drug; on February 20, 2000, received
Nubain at Sisters of Mercy; on March 15, 2000,
received Stadol at St. Joseph's Hospital on
two separate occasions; on 28 March, 2000,
received Stadol at St. Joseph's Hospital; on
April 23, 2000, received Nubain at Sisters of
Mercy; on May 2, 2000, received Nubain at
Sisters of Mercy.
In addition to the above occasions where
the respondent received Stadol, there [were]
several documented visits by the respondent to
hospitals where she was seeking narcotic
medicine, but was refused. The Asheville Pain
Clinic noted on a visit April 10, 2000, that
Ms. Moore had used a bottle of Stadol over 24
hours and 30 tablets of Fiorinal over one
weekend.
(e) Although the court order of January
14, 2000, suspended the respondent mother's
visitation with the minor children and gave
the respondent an opportunity to seek
treatment for her substance abuse prior to
this review hearing, the respondent has failed
to take advantage of the free treatment
programs offered to her by the Department of
Social Services.
. . . .
21. The respondent mother testified that
since June, 2000, she has attempted to gain
admittance to treatment programs at Charter
Hospital in South Carolina, and Bridgeway in
North Carolina, without success. The
respondent mother admitted that since June,
2000, when social worker, Nicole Jackson, took
over the case, she has not requested the
assistance of the Department of Social
Services in securing any type of treatment.
. . . .
24. Following the permanency planning hearing
in June, 2000, the social worker contacted
numerous medical providers in Western North
Carolina, but found few medical records for
Ms. [M]. In September, 2001, Ms. [M.] toldthe social worker she was not using narcotic
medicine. The respondent mother told the
social worker she was starting treatment at
Blue Ridge Mental Health in Asheville, N.C.,
and would have her first appointment in
September, 2001. Ms. [M.] advised the social
worker that she was having a psychological
evaluation by Bradford Owen at Blue Ridge
Mental Health.
25. Ms. [M.] quit her treatment at Blue Ridge
Mental Health after eight sessions. In
February, 2002, Bradford Owen forwarded a copy
of his psychological evaluation of Ms. [M.] to
all parties. The psychological evaluation was
completed following sessions with Ms. [M.] on
September 13, 2001 and November 1 , 2001, and
was admitted into evidence by stipulation and
without objection of any party. Mr. Owen, in
his psychological evaluation, concluded that
Ms. [M.] has the personality characteristics,
medical history, and familial addiction/incest
experience that warrant a diagnosis of Opiate
Dependence. The psychologist recommended and
stated his opinion that Ms. [M.] must fully
complete a long-term, intensive substance
abuse treatment program that has an equally
intensive personality disorder treatment
component before being placed in any child
care role. Furthermore, the psychologist
recommended medical oversight of Ms. [M.] by
psychiatrists specialized in treating addicted
clients in order to map out a strategy of
opiate withdrawal and weigh the need for the
use of any other medications given her drug
dependence.
26. Following the psychological evaluation of
Ms. [M.], Ms. [M.] did not participate in
either an out-patient treatment program or in-
patient treatment program with regard to her
narcotic dependence.
27. In January, 2002, the social worker
learned that Ms. [M.] had been obtaining
medical treatment in Tennessee. Upon inquiry,
the social worker found extensive medical
records dating from August, 2000 through
October, 2001, from the Tacoma Adventist
Hospital and Loughlin Memorial Hospital, both
facilities located in Greenville, Tennessee.
The medical records from these facilities wereintroduced into evidence without objection and
the records show extensive prescriptions and
use of narcotic medicines by Ms. [M].
28. The respondent mother's visitation with
the minor children was suspended by order of
the Court entered following hearing on January
14, 2000, until the respondent mother
submitted herself to an inpatient treatment
program and demonstrated that she was free of
addiction to narcotic drugs and capable of
providing proper care and supervision to the
minor children. However, the respondent
mother has chosen to continue to seek drugs as
evidenced by medical records introduced by the
petitioner showing continued drug use through
at least October, 2001. The failure of the
respondent mother to attend an inpatient
treatment program and to continue with her
drug seeking behavior evidences a willfulness
by the respondent mother to forego her
visitation and contact with the minor children
in order to continue her drug dependence.
Respondent has excepted to only finding number twenty-eight,
thus, the remaining findings are presumed to be correct and
supported by the evidence. In re Moore, 306 N.C. 394, 404, 293
S.E.2d 127, 133 (1982). A review of the record and transcript
shows each of the trial court's findings are based upon orders
entered in the case and testimony from DSS social workers Brian
Price and Nicole Jackson. The trial court properly considered both
evidence of neglect by respondent prior to losing custody of the
children (including the prior adjudication of neglect) as well as
evidence of conditions since that time showing a likelihood of
neglect in the future.
At the termination proceeding, respondent had the opportunity
to present evidence relating to before and after the adjudication
of neglect. Respondent testified, and presented some contraryevidence, such as she was not currently taking a narcotic for her
migraine headaches and that her migraines had “gotten noticeably
better.” Respondent's mother confirmed that respondent was not
taking addictive medication for her migraines. However, in
considering all of the circumstances, the evidence of neglect
existing prior to removal of the children from the home and the
conduct of the respondent while the children were in foster care
support the conclusion of the trial court that at the time of the
termination proceeding, the children were neglected under N.C. Gen.
Stat. § 7B-1111. We therefore conclude that the trial court's
findings of facts were based on clear, cogent, and convincing
evidence and thus, the trial court properly found that respondent
had neglected the minor children. See In re Leftwich, 135 N.C.
App. 67, 72, 518 S.E.2d 799, 803 (1999) (affirming termination of
parental rights where respondent mother had made no meaningful
progress in eliminating the conditions that led to the removal of
her children, including failing to enroll in an intensive treatment
program).
Respondent also assigns error to the trial court's finding and
conclusion that it was in the best interest of the child to
terminate respondent's parental rights. Respondent challenges
finding of fact number forty-one, which states that the children's
contact with the maternal grandparents “does not appear to be in
the children's best interest.” Respondent points to the trial
court's 29 July 2002 review order, which found that it was in the
minor children's best interest that the maternal grandparents havevisitation with the children as evidence the trial court abused its
discretion. However, the evidence presented by the petitioner
supports the trial court's conclusion that termination of
respondent's parental rights is in the children's best interest.
The record shows that respondent failed to comply with court
orders, and to make adequate improvement in the issues that led to
the children's removal. Respondent continued her dependency on
narcotics after her children were removed from her custody. The
record further shows, contrary to respondent's assertion, contact
with the maternal grandparents was not in the children's best
interest. At the dispositional stage, the foster parent of M.A.K.
and J.S.K. testified that the children seemed “more agitated”
following visits with the maternal grandparents. The guardian ad
litem testified that J.S.K. told the guardian that he was opposed
to having visitation with the maternal grandparents. After the
conclusion of the dispositional testimony, the trial court
interviewed the minor children and found that J.S.K. did not wish
to have any contact with his maternal grandparents and that M.A.K.
was confused regarding her desire to have contact with the maternal
grandparents. There is competent evidence to support the trial
court's findings of fact and conclusions of law. Moreover, there
is nothing in the record which requires us to upset the exercise of
the trial court's discretion. King v. Allen, 25 N.C. App. 90, 92,
212 S.E.2d 396, 397 (1975). Thus, this assignment of error is
overruled.
Respondent has also challenged the trial court's finding offact number twenty-eight, which is the basis for the trial court
terminating respondent's parental rights under 7B-1111(a)(2).
Because this Court determined the trial court properly terminated
respondent's parental rights under section 7B-1111(a)(1), “we need
not discuss the remaining . . . grounds for termination asserted by
petitioner.” In re Brim, 139 N.C. App. 733, 743, 535 S.E.2d 367,
373 (2000).
In conclusion, we find no prejudicial error in the proceeding
to terminate respondent's parental rights. The order entered by
the trial court is affirmed.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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