IN THE MATTER OF: Buncombe County
D.C. No. 02 J 77
M.L.
John C. Adams for petitioner-appellee Buncombe County
Department of Social Services.
Michael N. Tousey, Attorney for Guardian ad Litem Brent
Battles, for the minor children.
Richard Croutharmel for respondent-appellant mother.
STEELMAN, Judge.
The minor children came to the attention of Buncombe County
Department of Social Services (DSS) in July 2001, when it was
reported that the two minor children and their two older half
siblings were neglected due to lack of proper medical care and
stable housing, and exposure to “constant domestic violence”
between respondent mother and respondent father. After two
subsequent reports of neglect based upon respondent mother's
failure to properly supervise the minor children and failure to
correct any of the deficiencies found in this case, DSS petitioned
to have the children adjudicated neglected on 1 March 2002. Non-
secure custody hearings were conducted on several occasions inMarch 2002, with non-secure custody being continued with DSS.
Respondent mother was granted supervised visitation at the offices
of DSS. Adjudication was set for April 2002.
The district court conducted adjudication and disposition
hearings on 22 April 2002. Respondent mother had to-date failed to
get a drug assessment or treatment, and had not executed a service
or visitation plan. Despite their attempts, DSS and the children's
guardian ad litem had been unable to get in contact with respondent
mother. With the exception of a visit on 27 March 2002, respondent
mother had not visited with the children since they had been in the
custody of DSS. Respondent mother was not in attendance at the 22
April 2002 hearings. The court subsequently adjudicated the
children neglected and ordered that the children remain in the
legal custody of DSS.
While the initial plan of DSS was to reunify the minor
children with respondent mother, the plan was changed in January
2003 when respondent mother failed to take any steps to correct the
conditions that led to the children's removal from the home.
Respondent mother attended only one permanency planning hearing
after the non-secure custody hearing on 25 March 2002. In fact,
she was in jail from 14 October 2002 through 7 January 2003. It
was not until after DSS filed its petition to terminate respondent
mother's parental rights, on 4 September 2003, that respondent
mother began to participate in various rehabilitative programs.
Significantly, her participation in these programs was to comply
with the terms and conditions of her probation, and not necessarilyto reunify her family. Despite participation in the rehabilitative
programs, however, respondent mother still relapsed into drug use
in June and September 2003.
The termination hearing was held on 3 and 6 November 2003
before Judge Gary S. Cash. After hearing the testimony and
reviewing the underlying court orders and adjudication, Judge Cash
entered an order terminating respondent mother's parental rights as
to the two minor children. The trial court found that grounds
existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (3) to
terminate respondent mother's parental rights. The trial court
further found that it was in the best interests of the minor
children to terminate respondent mother's parental rights.
Respondent mother appeals.
A termination of parental rights proceeding is bifurcated. In
the first stage, the adjudicatory stage, the petitioner bears the
burden of proving by clear, cogent, and convincing evidence that
the termination of such rights is warranted. In re McMillon, 143
N.C. App. 402, 408, 546 S.E.2d 169, 173-74 (2001). N.C. Gen. Stat.
§ 7B-1109(e) requires that the trial court during this stage, “take
evidence, find the facts, and . . . adjudicate the existence or
nonexistence of any of the circumstances set forth in G.S. 7B-1111
which authorize the termination of parental rights of the
respondent.” N.C. Gen. Stat. § 7B-1109(e)(2003). Upon the finding
of at least one of the statutory provisions authorizing termination
of parental rights, the court then moves to the second stage of the
termination proceeding, the disposition stage. McMillon, 143 N.C.App. at 408, 546 S.E.2d at 174. In accordance with N.C. Gen. Stat.
§ 7B-1110, the court during this second stage “shall issue an order
terminating the parental rights of such parent,” who has been found
to have fulfilled one of the provisions justifying termination
“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).
On appeal, the dispositive issues are “'“whether the court's
'findings of fact are based upon clear, cogent and convincing
evidence' and whether the 'findings support the conclusions of
law.”'” In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146
(2003)(citations omitted). “So long as the findings of fact
support a conclusion based on [the relevant statute], the order
terminating parental rights must be affirmed.” In re Oghenekevebe,
123 N.C. App. 434, 436, 473 S.E.2d 393, 395-96 (1996).
At the outset, we note that respondent mother has failed to
assign error to any true finding of fact. Instead, she assigned
error to findings of fact 36 and 39 arguing that “they were
actually conclusions of law and not supported by competent evidence
or findings of fact.” Accordingly, the court's findings of fact
are presumed correct and are binding on appeal. See In re Beasley,
147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001). Our review is
therefore limited to whether the trial court's findings of fact
support its conclusions of law.
In the case sub judice, the trial court terminated respondent
mother's parental rights based upon N.C. Gen. Stat. § 7B-1111(a)(1)and (a)(3). Defendant first argues that the trial court erred in
terminating her parental rights based upon N.C. Gen. Stat. § 7B-
1111(a)(1) because there was not sufficient evidence to support
such a conclusion.
N.C. Gen. Stat. § 7B-1111(a)(1) provides that the trial court
may terminate a parent's parental rights based upon neglect if
“[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)(2003). N.C. Gen. Stat. § 7B-101
defines a neglected juvenile as:
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). In instances, where the minor
children have been adjudicated neglected and the parents have not
had custody for a significant period prior to the termination
hearing, the prior adjudication standing alone will not be
sufficient to support termination. In re Brimm, 139 N.C. App. 733,
742, 535 S.E.2d 367, 372 (2000). In Brimm, this Court further
explained that:
[T]he court must take into consideration 'any
evidence of changed conditions in light of the
evidence of prior neglect and the probability
of a repetition of neglect. The determinative
factors must be the best interests of the
child and the fitness of the parent to carefor the child at the time of the termination
proceeding.'
Id. (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232
(1984)).
The trial court, after hearing the evidence, made the
following pertinent findings of fact:
16. That the Respondent Mother has
neglected the minor children pursuant to the
provision of N.C.G.S. 7B-1111(a)(1) in that
the minor children were not receiving proper
care and supervision while living with the
Respondent Mother, and since the minor
children have been removed form [sic] her
care, the Respondent Mother has not addressed
any of the issues which led to the removal of
the minor children from her care.
Specifically, the Respondent Mother continues
to abuse and use illegal substances. She is
not stable and has failed to obtain and
maintain stable employment or living
arrangements. She has abandoned the minor
children, and she has continued to engage in
criminal and anti-social behaviors, which have
resulted in her being incarcerated at times
during the pendency of this action.
Therefore, the minor children would continue
to be neglected if the minor children were
returned to the care of the Respondent Mother.
. . . .
28. That the Buncombe County Department
of Social Services has had continuous custody
of the minor children since March 1, 2002.
Respondent Mother has last had a visit with
the minor children on March 27, 2002. On May
2, 2002, the mother stopped by unannounced and
spoke with the social worker, Ms. Ensley. The
social worker had asked Respondent Mother
during May to obtain a substance abuse
assessment and comply with treatment, to
obtain stable housing, to improve on her
parenting skills and to attend the Women at
Risk program. Ms. Ensley did not hear from
the mother again until January 7, 2003 when
Respondent Mother called her. The Buncombe
County Department of Social Services workerhad tried to contact the mother earlier. The
Respondent Mother had missed two visits in
April but had one visit with the children on
March 27, 2002. On January 7, 2003 Respondent
Mother stated to the social worker that she
had been in jail from October 14, 2002 until
January 7, 2003 and was now in Swain Recovery
Center for substance abuse. That up to this
point Respondent Mother had not complied with
the services offered by the Buncombe County
Department of Social Services. . . .
29. The children who are [the] subject
matter of this action have been in the same
foster care since March of 2002. This is not
a pre-adoptive placement but the children are
doing superbly. The behaviors that the
children originally exhibited when they were
placed into this home included being whinny,
fussy, not having a set routine, and acting
out like slapping, hitting and biting at
daycare. These improper behaviors have now
disappeared and the children are greatly
improved. Respondent Mother did send cards,
letters and gifts to the children while she
was in jail and subsequent thereto and the
social worker has received these but has not
delivered them to the children. Respondent
Mother has not asked for visitation since the
Court has suspended it since it's [sic] order
in January of 2003.
. . . .
31. That Respondent Mother lives in a
two-bedroom mobile home with a friend with
whom she splits her expenses at 35 Brookdale
Road in Asheville, since May or June of 2003.
She has been continually involved with the
Women at Risk Program and the 28th Judicial
District Drug Court Program since her release
from Swain Recovery Center. She had a
substance abuse assessment probably in
December of 2002 while she was incarcerated
and had substance abuse treatment while at
Swain Recovery Center. She has attempted to
obtain parenting classes since she has
completed her Swain Recovery Program by
contacting the Buncombe County Health
Department but has been told that there would
have to be a referral for any such classes by
the Court or by the Buncombe County Departmentof Social Services. The Buncombe County
Department of Social Services has stated to
her that she can not get a referral since
termination of parental rights have been
sought. Respondent Mother attended NA and AA
meetings and currently attends 5 to 7 meetings
a week. She receives medication for a bi-
polar diagnosis and individual counseling
through the services of Blue Ridge Center, the
community mental health center serving this
Judicial District, and she is in the phase two
portion of the Drug Court Program having done
50 hours of community service, three drug
screens each week, individual therapy, and
attending NA/AA meetings each week.
Respondent Motehr [sic] has completed 16 weeks
of group therapy and 20 weeks of substance
abuse counseling. Her use of cocaine has
continued for at least 20 years.
32. That Respondent Mother desires to
have custody of her children so that she might
be able to find a residential placement for
her and her children such as the one operated
by Summit House in Greensboro, North Carolina.
33. That Respondent Mother did not
complete the Pathways Program because she
began to see the father of the children again
and relapsed in her substance abuse. She has
had two relapses in the current year, one in
June after testifying in a stressful criminal
case against an individual who had raped her,
and once in September after she started seeing
[the putative father of the minor children]
again. This last relapse was approximately
six or seven weeks prior to the trial of this
matter. She testifies that she has had no
contact with the father since her last relapse
and intends to get a restraining order. She
is just beginning the ARP Phoenix drug abuse
program here in Asheville. Respondent Mother
also has testified that she felt stable after
Swain recovery treatment but relapse is a
common thing in her recovery. She is taking
individual counseling to help her address the
problems of [the minor children's father] who
she feels has had a negative effect on her
substance abuse recovery.
34. That at the date the petition was
filed herein where the Buncombe CountyDepartment of Social Services was granted
custody of Respondent Mother's children, the
mother was using crack-cocaine and was
involved in a domestic violent relationship
with . . . the father of the children. That,
today, she has had a stable residence for 5 or
6 weeks, does not yet have stable full time
employment and has recently relapsed for a
second time in September of 2003 by again
using crack cocaine for three days, when she
was with [the minor children's father] and
again experiencing some domestic violence.
Prior to that she used crack cocaine for two
days in June of 2003.
35. That the Court finds by clear,
cogent and convincing evidence that . . .
[the] mother of the minor children, continues
to struggle with her addiction to crack-
cocaine. She has made considerable effort to
receive and has received substance abuse
treatment and services in this community. She
does not yet have stable employment; her
housing has been stable for six weeks but
there is no evidence of long-term stability of
housing. The juveniles have not, at the time
of this proceeding, received proper care,
supervision, or discipline from their parents.
There is a showing of a past adjudication of
neglect and there is clear and convincing
evidence of a probability of repetition of
that neglect if the juveniles were to be
returned to their mother due to the recent
history of said parent's relapse to the use of
crack cocaine.
36. That the Court finds by clear,
cogent and convincing evidence that grounds
exist for the termination of parental rights
of Respondent Mother pursuant to N.C.G.S. 7B-
1111 a, (1) and (3) based on the allegations
contained in the motion. The Court will not
find grounds pursuant to N.C.G.S. 7B-1111 a
(2) and (7).
. . . .
39. That it is in the best interest of
the minor children . . . that the parental
rights of Respondent Mother . . . to said
minor children be terminated and the minor
children be released for adoption. Based upon the court's findings, which are presumed correct,
the court concluded:
3. That within the meaning of N.C.G.S.
7B-1111(1) [sic] the Respondent Mother
neglected the minor children when the minor
children were placed in the custody of the
Buncombe County Department of Social Services
on March 1, 2002, and continues to neglect the
minor children in that she has abandoned the
minor children; she has failed to provide any
love, nurturance, or support for the minor
children; she has failed to provide the
personal contact, love, and affection that
inheres in the parental relationship; and, she
has failed to provide a stable living
environment and proper food and clothing for
the children. That . . . [the] mother of the
minor children, continues to struggle with her
addiction to crack-cocaine. She has made
considerable effort to receive and has
received substance abuse treatment and
services in this community. She does not yet
have stable employment; her housing has been
stable for six weeks but there is no evidence
of long-term stability of housing. There is a
reasonable probability of continuing neglect
from the Respondent Mother.
. . . .
11. That grounds exist for the
termination of parental rights and that it is
in the best interest of the minor children . .
. that the parental rights of the Respondent
Mother . . . to said minor children be
terminated and the minor children be released
for adoption.
In the instant case, the minor children were adjudicated
neglected primarily based upon respondent mother's drug abuse and
domestic violence existing between respondent mother and the
putative father of the minor children, which prevented respondent
mother from properly supervising and caring for the minor children.
As a result of that adjudication, the trial court orderedrespondent mother to complete an assessment for substance abuse,
participate successfully in treatment, and to maintain a stable and
clean home environment. The trial court also ordered her to stop
entertaining friends that may pose a risk of abuse or neglect to
the minor children. At the time of the termination hearing,
respondent mother had completed an assessment for drug abuse, and
had even participated in treatment for her dependency issues. The
court found, however, that respondent mother had not taken any of
these steps towards rehabilitation until it was ordered as a
condition of her probation. Moreover, the court found respondent
mother had twice relapsed into drug use, despite having
participated in drug treatment, with the most recent relapse just
six or seven weeks prior to the termination hearing. In fact,
respondent mother was just beginning treatment in yet another
treatment program at the time of hearing. The court also found
respondent mother's living arrangements of only five or six weeks
was not necessarily long-term stable housing, especially since she
did not have stable full time employment and was living with a
friend. Here, the court's findings show respondent mother's drug
addition, the major circumstance which led to the minor children
being adjudicated neglected, still exists. Notwithstanding
respondent mother's attempts to overcome her addiction, the trial
court's findings show she is still struggling in this regard.
Further, respondent mother's continued lack of employment and
uncertainty about future living conditions, support the trial
court's conclusion that the neglect will likely recur. The trialcourt did not, therefore, err in that grounds existed under N.C.
Gen. Stat. § 7B-1111(a)(1) to terminate respondent mother's
parental rights.
Having so concluded, we need not inquire as to the trial
court's conclusion as to grounds existing under N.C. Gen. Stat. §
7B-1111 (a)(3). See Brimm, 139 N.C. App. at 743, 535 S.E.2d at
373. We then move to a consideration of the propriety of the trial
court's finding that it was in the best interest of the children to
terminate respondent mother's parental rights to them.
As argued by respondent mother, though labeled a “finding of
fact,” the best interest determination is more correctly termed a
conclusion of law. To that end, the court's determination that
termination of parental rights would be in the best interest of the
child is reviewed applying an abuse of discretion standard. In re
Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
Here, the trial court's findings tend to show that the court
gave careful consideration of the evidence, arguments of counsel,
and the law as it exists in this jurisdiction. After discussing
the respondent mother's efforts and failures to correct the
conditions that led to the removal of her minor children from the
home, the trial court specifically made findings as to the
improvement that the minor children have made since their placement
in foster care. Based upon those findings, which again are
presumably correct, we conclude that the trial court did not abuse
its discretion in determining that it was in the best interests of
the minor children to terminate respondent mother's parentalrights.
In light of the foregoing, the judgment of the trial court is
affirmed.
AFFIRMED.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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