An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-204

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

IN RE:
                                 Rowan County
S.M.W.                            No. 98 J 179

    

    Appeal by respondent from order entered 29 July 2003 by Judge William C. Kluttz, Jr. in Rowan County District Court. Heard in the Court of Appeals 17 January 2005.

    E. Blake Evans for petitioner-appellee.

    Robert W. Ewing for respondent-appellant K.M.A.C.

    Attorney Advocate Nancy R. Gaines for Guardian Ad Litem

    GEER, Judge.

    Respondent, the mother of SMW, appeals an order terminating her parental rights. She argues on appeal that the trial court's findings as to neglect of SMW are not supported by the evidence and that those findings are insufficient to support the court's conclusion of law that grounds justifying termination exist. After a careful review of the record, we hold that clear, cogent, and convincing evidence supports the trial court's finding of past neglect and a probability of future neglect based upon (1) a substantial history of domestic violence between respondent and her boyfriend while respondent had custody of SMW, (2) respondent's resumption of a live-in relationship with that boyfriend, and (3) respondent's ongoing drug usage. Because respondent has not further challenged the trial court's conclusion that termination ofrespondent's parental rights is in the best interests of SMW, we affirm the trial court's order.

Facts
    In August 1998, the Rowan County Department of Social Services ("DSS") obtained custody of SMW based on allegations of neglect. In October 1998, the trial court concluded that SMW was a neglected child after finding that SMW had been exposed to an injurious environment as a result of incidents of domestic violence by respondent's boyfriend, Harvey Clay Hurlocker. SMW remained in DSS' custody until January 2001 when SMW was returned to her mother. At that time, Mr. Hurlocker was in prison and respondent had married another man.
    After Mr. Hurlocker was released from prison, however, respondent resumed her relationship with him. Respondent shared a residence with Mr. Hurlocker from 9 February 2001 through 15 May 2002, with SMW living with them for much of that period. Although, initially, there were no reports of domestic disturbances, an incident occurred within five weeks of SMW's return to her mother's custody. Respondent admits that ultimately 16 domestic disturbances were reported to law enforcement during this period.
    DSS again obtained custody of SMW in February 2002. On 13 May 2002, the trial court again adjudicated SMW neglected, with the consent of the parties, based on, among other things, SMW's exposure to frequent domestic violence in the home that respondent shared with Mr. Hurlocker.
    Respondent subsequently testified against Mr. Hurlockerregarding an incident of domestic violence and that testimony led to his being incarcerated again. Since his release, however, respondent has resumed her relationship with him. Although the record contains no evidence of any further reports of domestic violence, the trial court noted that the prior calls to law enforcement were not initiated by respondent, but rather by SMW or her older sister, and the sisters were no longer living with respondent.
    SMW's therapist, Cathy Shelton Reick, a clinical social worker, testified that SMW was diagnosed with attention deficit disorder and post traumatic stress disorder due to the abuse and violence she observed. Reick noted that post traumatic stress disorder can be reactivated if there is not a stable living environment. Reick stated that SMW's diagnosis is treated with ongoing therapy and by teaching the primary care giver how to monitor medication and help the child regulate symptoms. Reick testified that respondent had not been involved with SMW's therapy and respondent admitted she did not attend any of SMW's therapy sessions.
    On 17 September 2002, DSS filed a petition to terminate the parental rights of respondent alleging that she: (1) neglected the minor child (N.C. Gen. Stat. § 7B-1111(a)(1) (2003)) and (2) 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) (2003)) . After the filing of the petition, respondent andHurlocker resided in seven different places. At the hearing, respondent admitted that she was on probation for obtaining a Schedule II controlled substance with another person's prescription and that she tested positive for marijuana on 16 April 2003. Respondent also tested positive for illegal substances on 15 May 2003.
    On 29 July 2003, the trial court terminated respondent's parental rights based on the statutory ground of neglect, as set forth in N.C. Gen. Stat. § 7B-1111(a)(1). The trial court further found that SMW had been in foster care placement for at least 40 of the prior 55 months; that she continues to need ongoing mental health therapy and a nurturing environment; that she would like to be adopted by her present caretaker; and that she is in need of a permanent plan of care at the earliest possible age, which can only be achieved by severing the relationship between SMW and her parents. Accordingly, the trial court concluded that the best interests of the child required termination of the parental rights of her biological parents. Respondent appeals from that order.   (See footnote 1) 
Discussion     
    A termination of parental rights proceeding is conducted in two phases: (1) the adjudication phase, which is governed by N.C. Gen. Stat. § 7B-1109 (2003), and (2) the disposition phase, which is governed by N.C. Gen. Stat. § 7B-1110 (2003). In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication stage, the petitioner has the burden of proving byclear, cogent, and convincing evidence that one or more of the statutory grounds for termination exists as set forth in N.C. Gen. Stat. § 7B-1111 (2003). In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). On appeal, this Court determines whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
     If the trial court concludes that the petitioner has met its burden of proving at least one ground for termination, the trial court proceeds to the dispositional phase and decides whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. This Court reviews that decision under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
    In this case, the trial court terminated respondent's parental rights under N.C. Gen. Stat § 7B-1111(a)(1) based upon a finding that the minor child was a "neglected juvenile" within the meaning of N.C. Gen. Stat. § 7B-101 (2003). Section 7B-101(15) defines "neglected juvenile" 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 oradoption in violation of law.
N.C. Gen. Stat. § 7B-101(15).
    "A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." Young, 346 N.C. at 248, 485 S.E.2d at 615. "[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." In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). Termination may not, however, be based solely on past conditions that no longer exist. Young, 346 N.C. at 248, 485 S.E.2d at 615. If the child has been removed from the parents' custody before the termination hearing, and the petitioner presents evidence of prior neglect, such as an adjudication of 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." Ballard, 311 N.C. 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." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
     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:
        4.    On May 13, 2002, the juvenile . . . was adjudicated neglected, based on improper supervision and an injurious environment in her mother's home, following an incident of domestic violence in the presence of the child involving the mother's boyfriend, Harvey Clay Hurlocker. She was continued in the legal custody of the Rowan County Department of Social Services and placed in foster care.

        5.    The juvenile previously had been adjudicated neglected on October 5, 1998, based on an injurious environment in her mother's home, following incidents of domestic violence involving the mother's boyfriend, Harvey Clay Hurlocker. She was placed in the legal custody of the Rowan County Department of Social Services until custody was returned to her mother on January 8, 2001. At that time, Mr. Hurlocker had been in prison and the juvenile's mother was married to someone else, living in Stanly County, North Carolina. After Mr. Hurlocker's release from prison, the Juvenile's mother resumed her relationship with him. At the adjudication hearing on May 15, 2002, the juvenile's mother admitted that there had been 16 domestic disturbances resulting in calls to law enforcement at the residence in which the juvenile lived, which was shared with Mr. Hurlocker, between February 9, 2001 and May 15, 2002.

        . . . .

        7.    The juvenile's mother was ordered to participate with the juvenile in therapy, as recommended by the juvenile's therapist, and was allowed supervised visitation with the juvenile, to be scheduled and supervised through the Rowan County Department of Social Services.

        8.    The juvenile's mother did not visit with the juvenile and did not contact theDepartment of Social Services until after she had received a notice of a motion for review of the juvenile's custody.

9.    Upon the court's finding . . . that the juvenile's mother had made no efforts toward correcting the conditions leading to the removal of the juvenile, the permanency plan for the juvenile was changed to adoption.

        . . . .

        13.    During the time in which the juvenile has been in legal custody of the Department of Social Services, the juvenile's mother testified against Mr. Hurlocker regarding a domestic violence incident, resulting in his incarceration. Since his release and the resumption of the relationship between him and the juvenile's mother, there have been no reports of further domestic violence; however, the court notes that neither the juvenile nor her older sister has been in the home during that time, and that the previous reports of domestic violence were initiated by, or at the request of, the juvenile or her older sister, who was living in the home at the time.

        14.    Prior to the juvenile being returned to her mother's custody in January, 2001, there were no recent reports of domestic disturbances; however, the first of 16 such reports resumed within five weeks of the juvenile's return home.

        15.    The juvenile's mother had notice of the dates for hearing of this matter. She is on probation as a result of a criminal conviction; one of the conditions of which is that she submit to chemical analysis to detect the presence of illegal controlled substances in her body. Upon request of the Guardian ad Litem, she agreed during the hearing of this matter on May 15, 2003, to submit to such testing and for the results to be released to this court. She submitted urine specimens on May 15 and May 16; the first of which tested positive formarijuana and cocaine; the second test indicated that there was possible alteration of the specimen. A prior test on April 16, 2003 was positive for marijuana.

        16.    The juvenile's mother's past and continued use of illegal controlled substances and the recurring pattern of domestic violence in her home, considered separately and together, indicate a likelihood that such behavior will continue in the future and constitutes a continuing environment that would be injurious [to] the welfare of the juvenile.

        17.    The juvenile has been, and is, neglected by both respondent parents within the meaning of North Carolina General Statutes Sections 7B-101 and 1111.

    Respondent has assigned error only to findings of fact 16 and 17. Accordingly, the remaining findings are presumed to be correct and supported by competent evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). In addition, a review of the record and transcript shows that each of the trial court's findings is based upon competent evidence, including orders entered in the case and testimony from DSS social worker Sandra Porcori, SMW's therapist Cathy Shelton Reick, and respondent herself.
    The prior adjudications and the evidence of domestic violence established the existence of prior neglect. Respondent's repeated loss of custody due to domestic violence, her choice to continue to live with the perpetrator of the domestic violence after he was released from incarceration for domestic violence against her, her ongoing drug use, and her failure to participate in her child's therapy as ordered by the court supported the court's determinationthat there was a probability that neglect would be repeated in the future. The trial court thus properly considered both evidence of past neglect by respondent, as well as evidence of conditions since that time showing a likelihood of neglect in the future.
    Respondent presented some contrary evidence. She testified that she and Mr. Hurlocker had obtained a stable residence that had a separate room for SMW and that she has maintained employment with American Processing. The trial court had both the ability and responsibility to weigh the evidence and could choose to give greater weight to petitioner's evidence indicating a lack of stability, including the mother's continued drug usage despite knowing that she was being tested and that the results would be submitted to the court. Although respondent points to the lack of recent domestic violence, the trial court was free to conclude, as it did, that respondent's and Mr. Hurlocker 's recurring pattern of domestic violence in the home suggested a probability that the domestic violence would recur.
    We, therefore, hold that the trial court's findings of fact were based on clear, cogent, and convincing evidence. We further hold that these findings support the court's conclusion that grounds justifying termination existed under N.C. Gen. Stat. § 7B-1111 (a)(1). See, e.g., Huff, 140 N.C. App. at 299, 536 S.E.2d at 845 ("[W]here a mother chooses to marry a man who has previously abused her child, there is obviously an increased likelihood that the child will suffer further harm if parental rights are not terminated."); In re Leftwich, 135 N.C. App. 67, 72, 518 S.E.2d799, 803 (1999) (trial court could properly find neglect when respondent mother had not made meaningful progress in improving her lifestyle, including continuing to abuse alcohol).
     Respondent has not contended that the trial court erred in the dispositional phase. We, therefore, affirm the trial court's order terminating respondent's parental rights.

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


Footnote: 1
     SMW's father is not a party to this appeal.

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