Appeal by respondent from order entered 14 July 2003 by Judge
James Honeycutt in Davidson County District Court. Heard in the
Court of Appeals 8 December 2004.
Charles E. Frye, III, for petitioner-appellee Davidson County
Department of Social Services.
Laura B. Beck for Guardian ad Litem-appellee.
Robert T. Newman, Sr., for respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent-mother (“respondent”) appeals the trial court order
terminating her parental rights to her five-year-old son, Douglas.
(See footnote 1)
For the reasons discussed herein, we affirm the trial court order.
The facts and procedural history pertinent to the instant
appeal are as follows: On 16 September 2002, Davidson County
Department of Social Services (“petitioner”) filed a petition to
terminate respondent's parental rights to Douglas. The petition
alleged that sufficient facts existed to terminate respondent's
parental rights to Douglas pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) and (2). The petition contained the following pertinent
allegations: a. On or about September 25, 2000, [Douglas]
was adjudicated as a neglected juvenile
by the Juvenile Court of Davidson County
due to a history of lack of supervision
of [Douglas], limited food supply and
inadequate feeding of [Douglas],
substance abuse and failure to obtain
treatment, multiple criminal charges
which forced other individuals to care
for [Douglas], domestic violence in the
home between the mother and father, and
evidence of a cigarette burn on
[Douglas'] wrist. [Douglas] has special
needs which require patience and
substantial parenting skills.
[Respondent] was making significant
progress toward reunification until
evidence of a positive drug screen for
Cocaine in August 2001 indicated a
substance abuse relapse. [Respondent]
again began to make significant
improvement in that she was working to
fulfill the requirements of the Family
Services Case Plan and, consequently, her
visitation with [Douglas] was increased
to three hours of unsupervised visitation
in March 2002. In May 2002, the
visitation was changed to supervised
because [respondent] did not know how to
set limits for [Douglas] and [respondent]
tested positive for Cocaine during an
unscheduled drug test on May 7, 2002.
[Respondent's] repeated relapses indicate
that she cannot provide proper care and
supervision for [Douglas].
b. [Petitioner] has offered services to
[respondent] in [an] attempt to reunify
this family. However, there has been no
successful and consistent compliance with
plans for reunification. . . . Despite
these services, [respondent] has failed
to demonstrate that she has overcome her
substance abuse problem and that she
could provide a safe, permanent home for
[Douglas].
Respondent filed an answer denying the allegations of the
petition and the case proceeded to trial. After receiving evidence
and hearing argument from both parties, the trial court concludedas a matter of law that sufficient grounds exist to terminate
respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) and (2). After determining that it was in the best
interest of Douglas to do so, the trial court subsequently entered
an order terminating respondent's parental rights on 14 July 2003.
Respondent appeals.
The issues on appeal are whether the trial court erred by:
(I) determining that sufficient grounds exist to terminate
respondent's parental rights; and (II) determining that it was in
Douglas' best interests to terminate respondent's parental rights.
Respondent first argues that the trial court erred by
concluding that sufficient grounds exist to terminate her parental
rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). Respondent
asserts that the trial court's findings of fact are not supported
by competent evidence and do not support the conclusion of law. We
disagree.
Termination of parental rights involves a two-stage process.
In re Howell, 161 N.C. App. 650, 656, 589 S.E.2d 157, 160 (2003).
The trial court first examines the evidence and determines whether
sufficient grounds exist under N.C. Gen. Stat. § 7B-1111 to warrant
termination of parental rights.
Id. The trial court's findings
must be supported by clear, cogent, and convincing evidence.
Id.
at 656, 589 S.E.2d at 160-61. If the trial court determines that
any one of the grounds for termination listed in § 7B-1111 exists,
the trial court may terminate parental rights consistent with thebest interests of the child.
Id. at 656, 589 S.E.2d at 161. The
trial court's decision to terminate parental rights is
discretionary, and “this Court 'should affirm the trial court where
the court's findings of fact are based upon clear, cogent and
convincing evidence and the findings support the conclusions of
law.'”
In re Yocum, 158 N.C. App. 198, 203, 580 S.E.2d 399, 403
(quoting
In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86
(1996)),
aff'd per curium, 357 N.C. 568, 597 S.E.2d 674 (2003).
N.C. Gen. Stat. § 7B-1111(a)(1) (2003) allows the trial court
to terminate a respondent's parental rights upon a finding that
“[t]he parent has abused or neglected the juvenile. The juvenile
shall be deemed . . . 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-101(15) (2003) defines a “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 or
adoption in violation of law.
Where, as in the instant case, “a child has not been in the
custody of the parent for a significant period of time prior to the
termination hearing, the trial court must employ a different kind
of analysis to determine whether the evidence supports a finding of
neglect.”
In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403,
407 (2003). “[T]o require that termination of parental rights bebased only upon evidence of events occurring after a prior
adjudication of neglect which resulted in removal of the child from
the custody of the parents would make it almost impossible to
terminate parental rights on the ground of neglect.”
In re
Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984). Thus,
“[t]he determinative factors must be the best interests of the
child and the fitness of the parent to care for the child
at the
time of the termination proceeding.”
Id. at 715, 319 S.E.2d at 232
(emphasis in original). While evidence of a prior adjudication of
neglect is admissible at a subsequent termination hearing, “[t]he
trial court must also consider evidence of changed conditions in
light of the history of neglect by the parent and the probability
of a repetition of neglect.”
Id.
In the instant case, the trial court made the following
pertinent findings of fact regarding respondent's history of
neglecting Douglas and the probability of respondent neglecting
Douglas in the future:
14. [Petitioner] became involved with
[Douglas] and the parents in February
2000. [Petitioner] began offering
services to the parents, including
substance abuse treatment to
[respondent]. . . . [Petitioner] took
custody of [Douglas] on July 9, 2000. In
September 2000 [Douglas] was adjudicated
neglected and dependent by stipulation of
[respondent]. . . . The adjudication
order recites [petitioner's] involvement
up to that point, including
[respondent's] use of controlled
substances. Said findings included the
following:
a. On July 9, 2000, law enforcement was
called to [petitioner's] residenceas neighbors had heard a baby crying
for over an hour. When officers
arrived at the residence, they were
unable to get anyone to the door.
When they entered the apartment,
they found the eighteen month old
toddler [Douglas] laying on the
floor behind the door, face down.
[Respondent] was found on the couch,
passed out. The officers were
unable to wake [respondent].
b. On July 9, 2000, when questioned why
she was sleeping and not supervising
her son, [respondent] stated that
she had taken a Valium. She was
unable to tell the social worker
when she last fed the child.
c. On July 9, 2000, the social worker
observed what appeared to be a
cigarette burn on [Douglas'] left
wrist. During a Child Medical
Evaluation performed by Dr. Winters
of Thomasville Pediatrics on July
10, 2000 the injury was confirmed as
a cigarette burn.
d. While the case was open for
Treatment Services, the Department
of Social Services received a new
Child Protective Services report on
April 10, 2000. This report alleged
that [Douglas] was being left alone
in the residence. [Petitioner]
found the parents neglectful as a
result of this chronic lack of
supervision.
. . . .
15. [Respondent] admitted in her testimony in
this termination hearing that she has had
a long-term drug and alcohol problem.
She has been in substance abuse treatment
on and off since 2000. . . . She has been
attending group counseling for substance
abuse through the Davidson County Mental
Health over the years, up to the present.
In addition, by her testimony and
attendance sheets introduced into
evidence, she regularly attendsAlcoholics Anonymous (AA) meetings,
including national conferences.
16. In spite of her treatment programs,
[respondent] has had several “relapses”
over the years. She had positive drug
screens for cocaine in August 2001, April
2002 and May 2002. She also had many
negative tests during this time period.
[Respondent] introduced into evidence
many of her negative screens, but none of
her positive tests. [Respondent] also
received two Driving While Intoxicated
(DWI) charges during 2002, which
subsequently resulted in convictions --
in June 2002 in Davidson County, and in
September 2002 in Randolph County. She
will be doing additional mandatory
substance abuse treatment as a result of
these convictions.
17. The plan of care for [Douglas] has
changed over the almost three years he
has been in [petitioner's] custody. . . .
When [respondent] submitted positive drug
screens, the visits went back to being
supervised and the plan has been
termination of parental rights.
18. Although non-payment of support was not
alleged as a ground for termination, the
court received and considered evidence of
the mother's support history as evidence
of her commitment to her child. . . . Her
payment history has been sporadic. As of
the hearing date she was $1,911.00 in
arrears. She has made two large payments
in 2003 . . . and . . . her state tax
refund was intercepted. . . . Even with
this help and employment history, she
owes more support now than when she came
under the [court order].
. . . .
22. The original serious issue in this case,
and the issue which has recurred, is
substance abuse. [Respondent] has had
treatment, periods without indications of
abuse, and several significant relapses.
The most recent relapses were the two
positive drug screens and two DWIconvictions within the past thirteen
months. The Court must determine, from
evidence right up to the present, the
likelihood of [respondent's] relapsing
again and the effect of such behavior on
the plan for the child.
23. [Respondent's] own testimony shows the
Court her attitude toward substance abuse
and substance abuse treatment. Referring
to her attendance at Mental Health, she
said that she is “attending to make the
court system happy.” She said, “I don't
drink.” Referring to one or both of the
DWI cases, she said she was “in the wrong
place at the wrong time.” She said, “I
must have a problem,” so I go to AA. She
said that two of the last three times she
drank alcohol she was arrested for DWI,
and that she just happened to get caught.
She said, referring to one of the DWI
cases, “I was not drunk.” She said that
she attended AA “when I could,” but
sometimes she was “tired” and sometimes
“things come up.” Although [respondent]
acknowledged that she is an alcoholic,
the Court does not believe that
[respondent] really believes that.
[Respondent] also exhibits general denial
of her own responsibility concerning
herself and her child. She said that DSS
workers told her what she was supposed to
do but did not explain those
requirements. However, she was not able
to give specific examples of such
problems. She said that she did not get
visitation, but she never missed a visit.
She only grudgingly acknowledged that one
of her prior caseworkers was the one who
initiated the court hearing that resulted
in her unsupervised visits. She also
acknowledged on cross-examination that
she knew of her child support
responsibility and where to make
payments. She and her witness . . . also
blamed her prior attorney for some
general failure to adequately represent
her.
24. The truth of the matter is that
[respondent] has not understood, and
still does not understand, that
she mustget off drugs and alcohol in order to
remedy the original problem that brought
her and her child before the Court.
[Douglas] has been in [petitioner's]
custody for just short of three years.
Except for a six-week period when a
relative placement was attempted,
[Douglas] has been in foster care since
July 2000. Based upon the evidence of
past substance abuse and [respondent's]
attitude expressed at the hearing, the
Court finds that she is likely to abuse
alcohol or drugs again, as she has during
the past three years. She has not
demonstrated a long-term commitment to
sobriety in comparison to her history of
abuse. If [Douglas] were returned to
[respondent], there is a high likelihood
of recurrence of the conditions that
brought [Douglas] before the Court.
25. [Douglas] has been in the same foster
home during the time this case has been
pending. [Douglas] has special needs in
the area of developmental delays. The
foster parents and [petitioner] have
appropriately addressed these needs
through a pre-school program and in other
ways described in the testimony.
[Douglas] has a stronger bond with the
foster family than with [respondent].
The foster parents have expressed an
interest in adopting [Douglas]. Both
[petitioner] and the GAL . . . are of the
opinion that termination of parental
rights and adoption are in the best
interest of the child.
26. The Court takes judicial notice of the
public policy of this State, as expressed
in N.C.G.S. § 7B-1100, concerning the
need for a permanent plan of care for
juveniles at the earliest possible age,
while protecting the juveniles from
unnecessary severance of the parental
relationship. The Court finds that the
Respondent parents in this case have not
provided and are still not capable of
providing the degree of care which
promotes the physical and emotional well-
being of [Douglas].
(emphasis in original).
During the termination hearing, petitioner offered testimony
from Anna Ryas (“Ryas”) and Twana Robinson (“Robinson”) and
introduced several exhibits into evidence. Ryas, an enforcement
agent at Davidson County Child Support Agency, testified regarding
respondent's sporadic payments for Douglas' child support as well
as petitioner's attempts to withhold respondent's paycheck and tax
returns. Although respondent and Robinson both testified that
respondent was working two jobs at the time of the termination
hearing, Ryas testified that she did not have current verification
of respondent's employment and had not received verification of
employment since 20 September 2002. On appeal, respondent contends
that finding of fact number eighteen is irrelevant to her case, in
that her nonpayment of child support was not alleged as a ground
for termination of her parental rights. However, as the trial
court properly noted, although nonpayment of child support was not
alleged as a ground for termination of respondent's parental
rights, evidence of a respondent's ability yet failure to pay child
support is a factor to consider when determining whether a child is
neglected.
See Yocum, 158 N.C. App. at 204, 580 S.E.2d at 403
(“[R]espondent neglected the minor child's welfare, in that he
never paid any child support for the minor child and did not send
the minor child any gift or other type of acknowledgment on her
birthday.”).
Respondent further contends that findings of fact numbers
twenty-three, twenty-four, and twenty-six are not supported bysufficient evidence.
(See footnote 2)
Specifically, respondent claims that her
records of substance abuse treatment and her own testimony
regarding her substance abuse problems provide conflicting evidence
as to whether she has taken responsibility for her substance abuse
issues or demonstrated a long-term commitment to sobriety.
However, although contrary evidence may be relevant to the trial
court's decision in a termination proceeding, it is not
determinative.
In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d
317, 320 (1988) (“When the court's findings of neglect are
supported by ample, competent evidence, they are binding on appeal,
even though there may be evidence to the contrary.”). Furthermore,
this Court has previously recognized that
The function of trial judges in nonjury trials
is to weigh and determine the credibility of a
witness. The demeanor of a witness on the
stand is always in evidence. All of the
findings of fact regarding respondent's
in-court demeanor, attitude, and credibility,
including her willingness to reunite herself
with her child, are left to the trial judge's
discretion. Therefore, any of the findings of
fact regarding the demeanor of any of the
witnesses are properly left to the
determination of the trial judge, since she
had the opportunity to observe the witnesses.
In re Oghenekevebe, 123 N.C. App. 434, 440-41, 473 S.E.2d 393, 398-
99 (1996) (citations omitted).
Although respondent's enrollment in and attendance at
substance abuse classes demonstrates an interest in rehabilitatingherself, in light of the evidence introduced at trial, we are
unable to conclude that the trial court abused its discretion by
concluding that respondent had neglected Douglas and would likely
continue to neglect Douglas in the future. As discussed above,
petitioner introduced evidence during the termination hearing
indicating that respondent twice tested positive for cocaine prior
to her termination hearing and was twice convicted of driving while
impaired within thirteen months of the hearing. On 28 November
2002, more than two months after the filing of the petition to
terminate her parental rights, respondent was cited for public
intoxication and disruptive behavior. Although respondent
acknowledged that she was an alcoholic, she minimized her
responsibility for her criminal offenses as well as her substance
abuse issues. On cross-examination, she provided the following
testimony:
Yeah, my first DUI was in June. And my second
one was in September. But I'm -- I was just
in the wrong place at the wrong time in my
car, and I know -- I don't drink. I mean I
don't -- I go to Alcoholics Anonymous, I mean
because I feel like you know, I got two DUIs,
yeah, I must have a problem, but I never was -
- I'm not a heavy drinker when I was drinking.
I was just leaving a restaurant after having a
couple of beers and got pulled.
Respondent maintains that the trial court is precluded from
finding neglect based upon her alcohol abuse without first
determining that there was proof of an adverse effect of the abuse
upon Douglas. In support of this contention, respondent cites
In
re Phifer, 67 N.C. App. 16, 25, 312 S.E.2d 684, 689 (1984), in
which this Court held that “[a] finding of fact that a parentabuses alcohol, without proof of adverse impact upon the child, is
not a sufficient basis for an adjudication of termination of
parental rights for neglect.”
(See footnote 3)
We note that, in the instant case,
respondent's abuse of alcohol was not the sole ground upon which
termination was based; as discussed above, the trial court
expressed concern regarding respondent's willingness to provide
financial support for Douglas, respondent's attitude toward
substance abuse treatment, respondent's multiple alcohol-related
criminal offenses, and respondent's positive test results for
cocaine. Furthermore, in
Phifer, we stated that “[i]t is also
significant that petitioner is unable to cite any decision from our
courts supporting the contention that risk of harm is sufficient
grounds for termination.”
Id. at 26, 312 S.E.2d at 690. However,
as discussed above, this Court has since required that the trial
court consider the “probability of a repetition of neglect”
mentioned in
Ballard, and the trial court in the instant case
followed this mandate.
See Shermer, 156 N.C. App. at 286, 576
S.E.2d at 407;
In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d
643, 647 (2001);
In re Brim, 139 N.C. App. 733, 742, 535 S.E.2d
367, 372 (2000). We also find it significant that respondent'sprior adjudication of neglect was based largely upon her substance
abuse, and that in its termination order, the trial court
acknowledged and examined respondent's attempts at changing those
conditions which previously constituted neglect. In the detailed
findings of fact contained within the termination order, the trial
court indicates that although it considered respondent's attempts
to rehabilitate herself, the trial court was unable to conclude
that respondent could offer a proper environment for Douglas more
than three years after the initial adjudication of neglect.
After reviewing the record in the instant case, we conclude
that the trial court's findings of fact were supported by clear,
cogent, and convincing evidence, and we also conclude that the
trial court's findings of fact support its conclusions of law.
Because we have determined that sufficient grounds exist to
terminate respondent's parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(1), we need not consider respondent's arguments
regarding termination of her parental rights pursuant to N.C. Gen.
Stat. § 7B-1111(a)(2).
See In re Shepard, 162 N.C. App. 215, 225,
591 S.E.2d 1, 8 (2004). Thus, we hold that the trial court did not
err in concluding that sufficient grounds exist to terminate
respondent's parental rights, and therefore, we overrule
respondent's first argument.
Respondent next argues that the trial court erred in
determining that it was in Douglas' best interest to terminate
respondent's parental rights. Respondent asserts that petitioner's
evidence failed to establish a compelling reason to terminate herparental rights. We disagree.
Once the trial court determines that any one of the conditions
authorizing termination of parental rights exists, the trial court
is required to issue an order terminating parental rights unless
“the court shall further determine that the best interests of the
juvenile require that . . . parental rights . . . not be
terminated.” N.C. Gen. Stat. § 7B-1110(a) (2003). “The trial
court's decision to terminate parental rights, if based upon a
finding of one or more of the statutory grounds supported by
evidence in the record, is reviewed on an abuse of discretion
standard.”
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).
“Evidence heard or introduced throughout the adjudicatory stage, as
well as any additional evidence, may be considered by the court
during the dispositional stage.”
In re Blackburn, 142 N.C. App.
607, 613, 543 S.E.2d 906, 910 (2001). “It is . . . within the
court's discretion to consider such factors as family integrity in
making its decision of whether termination is in the best interests
of the child[].”
In re Smith, 56 N.C. App. 142, 150, 287 S.E.2d
440, 445,
cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982).
However, “the child[]'s best interests are paramount, not the
rights of the parent.”
Id.
In the instant case, after hearing evidence from both parties,
the trial court determined that it was in Douglas' best interests
to terminate respondent's parental rights. In light of the
evidence presented during the termination proceedings and discussedabove, we are unable to conclude that the trial court's
determination is arbitrary or manifestly unsupported by reason.
During the adjudication portion of the proceedings, Robinson
testified that Douglas is considered “developmentally delayed” and
is “attending a specialized preschool program to address . . . .
delays center[ed] around speech and cognition.” Robinson further
testified that Douglas' foster parents were providing for his
special needs and had expressed interest in adopting him. The
trial court was well within its discretion to conclude that
Douglas' best interests would be served by terminating respondent's
parental rights.
Yocum, 158 N.C. App. at 206, 580 S.E.2d at 404.
Although “[t]he decision of whether to terminate parental rights
should not be relegated to a choice between the natural parent and
the foster family[,]”
In re Nesbitt, 147 N.C. App. 349, 360-61, 555
S.E.2d 659, 667 (2001), in the instant case, the trial court
recognized that respondent's substance abuse problems prevented her
from adequately providing for Douglas' special needs as well as
from forming the parent-child bond necessary to address Douglas'
needs and developmental delays. Thus, we hold that the trial court
did not abuse its discretion in terminating respondent's parental
rights, and, therefore, we overrule respondent's second argument.
Accordingly, we affirm the trial court's order terminating
respondent's parental rights.
Affirmed.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1