Appeal by respondent from orders dated 23 April 2003,
nunc pro
tunc 27 August 2003 by Judge Douglas B. Sasser in District Court,
Brunswick County. Heard in the Court of Appeals 13 September 2004.
Fairley, Jess, Isenberg & Green, by Elva L. Jess and Paula H.
Greene, for petitioner-appellee.
Peter Wood for respondent-appellant.
McGEE, Judge.
Respondent appeals from orders entered 23 April 2003, nunc pro
tunc 27 August 2003, terminating her parental rights to her
daughter, T.D.C.
The evidence at the termination hearing tended to show that
Brunswick County Department of Social Services (petitioner) filed
a petition alleging that T.D.C. was a neglected child. T.D.C. was
adjudicated a neglected child in an order entered 8 February 2002
in which the trial court made the following findings of fact:
2. That [respondent] has not had consistent
housing over the past several months and
has relied upon the kindness of friends,
relatives and agencies to provide for she
[sic] and [T.D.C.]. . . .
3. That [T.D.C.] has, on occasion, been
improperly bathed and clothed by
[respondent] and has been placed in
diapers that were three times too largefor her. That on two separate occasions
[T.D.C.] came into the custody of
[petitioner] from [respondent's] home
suffering from an infestation of head
lice. That [T.D.C] was left with the
babysitter with a bottle full of
clabbered milk, with a nipple that was
unclean.
4. That [respondent] has failed to provide
proper care or supervision of [T.D.C.],
often not responding to [T.D.C.'s] cries
in the night.
In a subsequent disposition order, the trial court ordered
respondent to complete parenting classes and a money management
class. In a review order entered 15 April 2002, respondent was
ordered to follow all recommendations from a psychological
evaluation as well as comply with all activities listed in a family
services case plan. The family services case plan required that
respondent maintain housing.
Respondent, with HUD assistance, obtained housing but was
evicted on 31 May 2002. Respondent was evicted because she allowed
P.R., T.D.C.'s purported father, to live in the home after his
release from prison. Respondent then applied for public housing in
Scotland County but did not find a place to live within the
permitted amount of time. At the time of the termination hearing,
respondent was living with her father and stepmother. Pursuant to
a home study conducted in January 2002, petitioner had rejected the
home of respondent's father and stepmother as appropriate for
placement of T.D.C. In addition, respondent was the victim of an
earlier substantiated instance of physical abuse inflicted by her
father. Dr. Jerry Sloan (Dr. Sloan), a psychologist, evaluated
respondent on 23 May 2002. In his evaluation, entered into
evidence at trial, Dr. Sloan diagnosed respondent with borderline
personality disorder, learning disability in reading and written
language, and adjustment disorder with depressed mood. Dr. Sloan's
report contained the following observations:
[Respondent] has a short attention span and is
easily distracted, and she has difficulty
focusing and maintaining concentration if her
child or others are present. . . .
. . . .
Casework staff is impressed with her lack of
knowledge of child development and her
confusion when given simple, basic
instructions, repeated several times. . . .
. . . .
[I]t appears that [respondent's] knowledge of
basic child development principles and
children's needs is very poor.
. . . .
[Respondent] has a history of a neglectful and
inappropriate family background, with family
members who have used drugs in her presence
and have allowed her to use drugs while she
was pregnant. . . . [Respondent] appears
unwilling and unable to accept the
responsibility for her own behavior. . . .
Her own personality is so poorly developed and
her basic level of immaturity is so severe
that it appears unlikely that she will be able
to assume full responsibility for the care of
her child in the foreseeable future.
Dr. Sloan recommended that respondent undergo a trial of
psychotropic medication to address her psychiatric symptoms.
Petitioner filed a petition dated 21 November 2002 to
terminate the parental rights of respondent and P.R. The trialcourt found that respondent had violated court orders by failing to
complete parenting and money management classes, by not complying
with the recommendations of her psychological evaluation, and by
not maintaining housing. Based upon these findings of fact, the
trial court concluded in an order entered 23 April 2003, nunc pro
tunc 27 August 2003, that "grounds exist pursuant to N.C.G.S. § 7B-
1111 (a)(1),(a)(3), (a)(5) and (a)(7) to terminate" respondent's
and P.R.'s parental rights. In a disposition order entered 23
April 2003, nunc pro tunc 27 August 2003, the trial court
determined that it was in the best interest of T.D.C. that
respondent's and P.R.'s parental rights be terminated. Respondent
appeals; P.R. does not appeal.
I.
A termination of parental rights proceeding has two stages.
In re Johnston, 151 N.C. App. 728, 731, 567 S.E.2d 219, 220 (2002);
see also N.C. Gen. Stat. § 7B-1111 (2003) and N.C. Gen. Stat. § 7B-
1110 (2003). The first stage is the adjudicatory stage, where the
trial court determines whether grounds exist to terminate parental
rights under N.C. Gen. Stat. § 7B-1111.
Johnston, 151 N.C. App. at
731, 567 S.E.2d at 220-21.
If one or more of the grounds for
termination is established, the trial court proceeds to the
disposition stage where the trial court determines whether it is in
the best interests of the child to terminate parental rights.
Id.
at 731, 567 S.E.2d at 221.
Respondent first assigns error to the trial court's finding of
fact and conclusion of law that respondent neglected T.D.C. Wereview 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 McMillon, 143 N.C. App.
402, 408, 546 S.E.2d 169, 174,
disc. review denied, 354 N.C. 218,
554 S.E.2d 341 (2001). If the trial court's findings of fact are
supported by clear and convincing evidence, they are binding on
appeal, even where there exists evidence to the contrary.
In re
Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).
In this case, the trial court made the following finding of
fact:
10. That the mother, [respondent], has
continued to neglect [T.D.C.] by failing
to comply with the prior orders of this
Court in that she has failed to complete
a money-management program, failed to
follow the recommendations of her
psychological evaluation and failed to
maintain suitable housing. Pursuant to
N.C.G.S. §7B-1111(a) grounds exist for
the termination of parental rights.
The trial court then made the following conclusion of law:
2. Grounds exist pursuant to N.C.G.S. §7B-
1111(a)(1), (a)(3), (a)(5) and (a)(7) to
terminate the parental rights of
[respondent and P.R.].
N.C. Gen. Stat. § 7B-1111(a)(1) provides that a trial court
may terminate parental rights when a parent has neglected a
juvenile within the meaning of N.C. Gen. Stat. § 7B-101. N.C. Gen.
Stat. § 7B-101(15) (2003) defines a neglected juvenile, in
pertinent part, as one "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[.]" At the time of the termination hearing, T.D.C. had not been in
respondent's custody for seventeen months. "[A] prior adjudication
of neglect, standing alone, is insufficient to support termination
when the parents have been deprived of custody for a significant
period of time before the proceeding."
In re Bluebird, 105 N.C.
App. 42, 48, 411 S.E.2d 820, 823 (1992). In such a case, "the
trial court must 'make an independent determination of whether
neglect authorizing termination of the respondent's parental rights
existed at the time of the termination hearing.'"
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) (quoting
In re Ballard, 311 N.C.
708, 716, 319 S.E.2d 227, 233 (1984)). In making this independent
determination of neglect, "'[t]he trial court must consider
evidence of changed conditions . . . in light of the history of
neglect by the parents and the probability of a repetition of
neglect.'"
Ballard, 311 N.C. at 714, 319 S.E.2d at 231 (quoting
In
re Wardship of Bender, 170 Ind. App. 274, 285, 352 N.E.2d 797, 804
(1976)).
Respondent argues that at the time of the termination hearing,
there was no evidence respondent had neglected T.D.C. or, that if
neglect had occurred, that there was a probability of a repetition
of neglect.
We first consider whether T.D.C. was neglected at the time of
the termination hearing. A child is neglected at the time of a
termination hearing when the child's parents have failed to correct
the conditions which led to an original finding of neglect.
Davis,116 N.C. App. at 413-14, 448 S.E.2d at 306. In
Davis, the
respondent-parents were ordered to receive counseling and take
parenting classes in order to correct the conditions which led to
the previous findings that their child was neglected.
Id. at 410,
448 S.E.2d at 303-04. The respondent-parents were also required to
have a "stable house" and "stable job[s]."
Id. at 410, 448 S.E.2d
at 304. Although the respondent-parents had lived in the same
residence for approximately five months prior to the order
terminating rights, they had only sporadic employment and did not
consistently attend counseling.
Id. at 410-11, 448 S.E.2d at 304.
In addition, the mother-respondent only completed a parenting class
after the petitioner gave notice that the permanent plan was
changed from reunification to termination.
Id. at 410, 448 S.E.2d
at 304. Our Court held that this failure to address the conditions
that led to the child's removal from the home was neglect at the
time of the termination hearing because the respondent-parents did
not provide "proper care, supervision, or discipline" and did not
correct the environment that was "injurious to [their child's]
welfare."
Id. at 413-14, 448 S.E.2d at 306. Viewing the neglect
in
Davis in light of the history of neglect, a lack of changed
conditions, and the probability of repetition of neglect, we held
that clear, cogent, and convincing evidence supported termination
of the respondents' parental rights.
Id. at 414, 448 S.E.2d at
306.
Under
Davis, we find that T.D.C. was neglected at the time of
the termination hearing. Respondent failed to comply with numerouscourt orders that sought to address the conditions that led to
previous findings that T.D.C. was neglected. Respondent admitted
at the termination hearing that she failed to complete the money
management program and failed to follow the recommendations of her
psychological evaluation. In our present case, respondent, as in
Davis, did not attend parenting classes until after reunification
efforts were terminated and the trial court had ordered that
petitioner should pursue termination of parental rights.
Finally, respondent did not maintain housing. She was evicted
from public housing and was residing with her father, against whom
she had a substantiated instance of physical abuse, and whose home
was previously rejected for placement of T.D.C. Since respondent
failed to correct the conditions that led to the previous finding
that T.D.C. was neglected, we hold that T.D.C. was neglected by
respondent at the time of the termination hearing.
We next consider respondent's argument that there was no
evidence of a probability of repetition of neglect. In support of
her argument, respondent points to her testimony that she was
adequately caring for her seven-week old infant, L.C., at the time
of the termination hearing. However, the evidence showed that
respondent had failed to address the conditions that led to
T.D.C.'s removal in the first place. In addition, respondent was
living in a home in which it was inappropriate for T.D.C. to live.
Therefore, despite respondent's ability to adequately care for
L.C., we find that there was a probability of a repetition of
neglect of T.D.C. Considering T.D.C.'s neglected status in the light of the
history of neglect, the lack of changed circumstances, and the
probability of a repetition of neglect, we find that there was
clear, cogent, and convincing evidence supporting the trial court's
finding of fact and conclusion of law that respondent neglected
T.D.C.
Since we have determined that the trial court's findings
support a conclusion that grounds for termination existed under
N.C. Gen. Stat. § 7B-1111(a)(1), we need not consider respondent's
assignments of error challenging termination on other grounds.
In
re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403-04,
aff'd per
curiam, 357 N.C. 568, 597 S.E.2d 674 (2003).
II.
Respondent next assigns error to the trial court's following
conclusion of law:
2. Grounds exist pursuant to N.C.G.S. §7B-
1111(a)(1), (a)(3), (a)(5) and (a)(7) to
terminate the parental rights of the
Respondents.
Respondent argues that this conclusion of law is fatally
deficient because it is "vague, ambiguous and is not supported by
the evidence." Respondent states that it is "difficult, if not
impossible, to discern what the [trial] court intended in its
conclusion of law" since it made "no effort to distinguish between
the mother and father[.]"
As stated previously, we review conclusions of law for whether
they are supported by the findings of fact.
McMillon, 143 N.C.
App. at 408, 546 S.E.2d at 174. We find that the above conclusionis supported by the following findings of fact:
9. That the father, [P.R.], and any unknown
father has continued to neglect [T.D.C.]
by failing to have any contact with
[T.D.C.] whatsoever.
10. That the mother, [respondent], has
continued to neglect [T.D.C.] by failing
to comply with the prior orders of this
Court . . . . Pursuant to N.C.G.S. §7B-
1111(a) grounds exist for the termination
of parental rights.
. . . .
13. That the mother, [respondent], has had
the ability to provide support for at
least a portion of the time that [T.D.C.]
has been in foster care, but has failed
to do so for a continuous period of six
(6) months next preceding the filing of
this petition.
. . . .
16. That [P.R.] and any unknown father have
withheld their presence, love, care,
opportunity to display filial affection
and have willfully neglected to lend
support and maintenance for the benefit
of [T.D.C.].
17. That [P.R.] and any unknown father have
failed to contact [petitioner] or [the]
Guardian Ad Litem for six (6) consecutive
months immediately preceding the filing
of this action, thus, [P.R.] and any
unknown father have abandoned [T.D.C.].
18. [T.D.C.] was born out of wedlock and the
father, P.R., or any unknown father, has
not, prior to the filing of this
petition: established paternity
judicially or by affidavit, legitimated
[T.D.C.] in any way, or provided
substantial support or consistent care
with respect to [T.D.C. and respondent].
These findings of fact clearly support the conclusion of law
that grounds existed to terminate parental rights to T.D.C.pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), 7B-1111(a)(3), 7B-
1111(a)(5) and 7B-1111(a)(7). When the trial court's findings of
fact and conclusions of law are read as a whole, it is clear which
ground for termination was applicable to each parent. Although
unartfully drafted, the conclusion of law is not a fatal defect
meriting reversal.
III.
Respondent's final assignment of error contends that the trial
court did not adequately consider changed circumstances in its
disposition order and therefore abused its discretion in
terminating respondent's parental rights.
If grounds for termination exist, the trial court must order
termination of parental rights unless termination is not in the
best interests of the child. N.C. Gen. Stat. § 7B-1110(a);
In re
Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). When
determining the best interests of a child, the trial court must
consider all relevant and competent evidence, including the
parent's changed circumstances.
In re Shue, 311 N.C. 586, 597, 319
S.E.2d 567, 574 (1984).
We review a trial court's termination of
parental rights for abuse of discretion.
Anderson, 151 N.C. App.
at 98, 564 S.E.2d at 602.
Respondent argues that the trial court erred in terminating
respondent's parental rights because her circumstances had changed
since the filing of the petition. Respondent again points to her
testimony that she was adequately caring for L.C. at the time of
the termination hearing. We do not find that this testimony showssufficient changed circumstances such that it would be in T.D.C.'s
best interests not to terminate respondent's parental rights.
Although respondent's testimony tends to show that she had not
encountered any problems in caring for L.C., her seven-week old
infant, the testimony does not indicate that the circumstances
leading to T.D.C.'s removal from respondent's home had changed at
all. Therefore, we do not find that the trial court abused its
discretion in terminating respondent's parental rights.
Affirmed.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).
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