NO. COA04-204
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)
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