IN THE MATTER OF:
B.N., M.N., T.N., N.N., Harnett County
M.L.N. Nos. 02 J 23-27
E. Marshall Woodall, for petitioner-appellee Harnett County
Department of Social Services.
Mercedes O. Chut, for respondent-appellant father.
Terry F. Rose, for respondent-appellant mother.
McDaniel & Anderson, L.L.P., by John M. Kirby, for the
Guardian ad Litem-appellee.
CALABRIA, Judge.
Ms. M.A.N. (“mother”) and Mr. M.A.N. (“father”) appeal orders
terminating their parental rights as to B.N., M.N., T.N., N.N., and
M.L.N. (collectively, the “children”). We affirm.
In 1998, the Harnett County Department of Social Services
(“DSS”) investigated two reports for neglect concerning the mother
and the father with respect to their children.
(See footnote 1)
Both of these
reports were unsubstantiated; however, two later reports for
neglect and an environment injurious to the children weresubstantiated. The first substantiated report, which occurred in
2000, involved domestic violence and a situation where the parents
took the children with them to purchase drugs for the father. A
restraining order was necessary to protect the mother from the
father, and case management services were established for the
mother, with whom the children remained. The second substantiated
report for neglect occurred in August of 2001. The children had
ringworms and bug bites for which they had not received medical
care. In addition, the family was living in a dirty camper with a
yard enclosed by a fence in which trash and pigs were located, and
the father had an outstanding warrant for his arrest. The children
were removed from the home, and a family services case plan was
developed.
In January of 2002, the father was released from prison for
approximately three days before he was arrested for new charges and
was sentenced to a minimum term of thirty-five years in prison.
The mother was also arrested but was subsequently released;
however, on 29 January 2002, DSS filed juvenile petitions for
neglect and dependency, and the court entered non-secure custody
orders for all the children. In March of 2002, another DSS family
services case plan instructed the mother to obtain and maintain
employment and provide a stable, safe, drug-free home. In June
2002, a substantially-identical family services case plan was
developed, except this plan indicated the mother had obtained
employment. Nevertheless, on 1 July 2002, the court found the
parents had not made reasonable progress and adjudicated thechildren neglected. Specifically, the court found the children had
a ringworm infestation and bug bites, they did not receive proper
medical care, and they lived in a filthy camper located inside an
enclosed pigpen.
In September of 2002, another family services case plan
required the mother to obtain and maintain full-time employment.
The plan noted the mother had obtained and maintained part-time
employment for approximately six months. On 18 November 2002, the
court entered a disposition order finding that further
reunification efforts would be futile on the basis that DSS had
been providing services since 2001 and the parents did little to
comply with DSS' efforts, particularly after the adjudication in
April of 2002. The trial court ordered a home study of the
paternal grandparents and ordered DSS to file termination
proceedings in the event the home study was not approved. A home
study was performed and not approved.
DSS subsequently filed petitions to terminate the parental
rights of respondents on 24 March 2003, alleging respondents
neglected the minor children as contemplated by N.C. Gen. Stat. §
7B-1111(a)(1) (2003) and willfully left the children in foster care
or placement outside the home for more than twelve months without
showing to the satisfaction of the court that reasonable progress
under the circumstances had been made in correcting those
conditions which led to the removal of the juvenile as contemplated
by N.C. Gen. Stat. § 7B-1111(a)(2) (2003). The paternal
grandparents filed a motion to intervene, which was denied. On 29September 2003, the trial court terminated respondents' parental
rights based on the statutory grounds set forth in N.C. Gen. Stat.
§ 7B-1111(a)(1) and (a)(2). Respondents appeal from the orders
terminating their parental rights.
I. Standard of Review
A termination of parental rights proceeding is comprised of
two stages: adjudication and disposition. In re Faircloth, 153
N.C. App. 565, 575, 571 S.E.2d 65, 72 (2002). “At the adjudicatory
stage, the petitioner has the burden of establishing by clear and
convincing evidence that at least one of the statutory grounds
listed in N.C. Gen. Stat. § 7B-1111 exists.” Id. “If a ground for
termination is so established, the trial court must proceed to the
second [dispositional] stage” and determine “whether termination is
in the best interests of the child.” Id. “Unless the trial court
determines that the best interests of the child require otherwise,
the termination order shall be issued.” Id.
Our standard of review for the adjudication stage of an order
terminating parental rights is limited to determining whether the
trial court's findings of fact are supported by clear, cogent and
convincing evidence. In re Blackburn, 142 N.C. App. 607, 612, 543
S.E.2d 906, 909 (2001). With respect to the dispositional stage,
we review the trial court's ruling only for an abuse of discretion.
Id., 142 N.C. App. at 614, 543 S.E.2d at 911.
II. Mother's Appeal
Only one of the statutory grounds under N.C. Gen. Stat. §
7B-1111(a) is required to support an order terminating parentalrights. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903
(1984). In the instant case, the trial court terminated the
mother's parental rights pursuant to, inter alia, N.C. Gen. Stat.
§ 7B-1111(a)(2), where “[t]he parent has willfully left the
juvenile in foster care or placement outside the home for more than
12 months without showing to the satisfaction of the court that
reasonable progress under the circumstances has been made in
correcting those conditions which led to the removal of the
juvenile.” Willfulness may be found where a parent has failed to
exhibit reasonable progress or a positive response toward the
efforts of DSS. In re Oghenekevebe, 123 N.C. App. 434, 440, 473
S.E.2d 393, 398 (1996). “Implicit in the meaning of positive
response is that not only must positive efforts be made towards
improving the situation, but that these efforts are obtaining or
have obtained positive results.” In re Nolen, 117 N.C. App. 693,
700, 453 S.E.2d 220, 225 (1995).
In the instant case, the lack of a stable and safe home
environment and the lack of employment which would allow the mother
to support her children were the two persistent concerns prompting
intervention by DSS. Both of these concerns were emphasized as
DSS' goals and were reflected in the family services case plans.
Notwithstanding the efforts of DSS, the mother worked only eighteen
hours in any given week despite being in good health. Moreover,
although the mother moved out of the camper, resided with her
mother, and applied for housing with the Sanford Housing Authority,
she was placed on a wait list and never secured adequate housing. While the evidence of record shows the mother obtained some
employment, paid minimal child support for a short period of time
immediately before the termination of parental rights hearing, and
applied a single time for housing, we disagree that the trial
court's findings concerning reasonable progress were improper. The
mother visited the children four times in a four-month period, made
minimal efforts to find suitable housing, and, despite being in
good health, failed to obtain full-time employment. Given this
lack of progress in light of the assistance provided, we hold there
was clear and convincing evidence the mother willfully left the
children in foster care without making reasonable progress to cure
the conditions which led to their removal. Accordingly, we need
not address the mother's arguments as to the other ground found by
the trial court in support of its termination order. The mother's
generalized arguments concerning issues of poverty, her education
level, and her qualifications for skilled labor lack any
evidentiary support.
The mother also asserts the trial court erred in concluding as
a matter of law that it was in the best interests of the children
to terminate her parental rights in the absence of evidence as to
the status of the children at the time of the termination
proceeding. The mother's argument on appeal is devoid of any
citation to supporting authority in violation of N.C. R. App. P.
28(b)(6) (2004). Accordingly, this assignment of error is
overruled. Moreover, having established that grounds for
termination existed given the mother's lack of reasonable progress,we cannot say the trial court abused its discretion in determining
it was in the best interests of the children to terminate the
mother's parental rights.
II. Father's Appeal
The trial court terminated the father's parental rights to the
children pursuant to, inter alia, N.C. Gen. Stat. § 7B-1111(a)(1)
after finding that the father had neglected the children within the
meaning of N.C. Gen. Stat. § 7B-101 (2003). A neglected juvenile
is 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 . . . .” N.C. Gen.
Stat. § 7B-101. Besides considerations regarding the care,
supervision, discipline, and environment, this Court has noted a
trial court may also consider a prior adjudication of neglect, see
In re Beasley, 147 N.C. App. 399, 404, 555 S.E.2d 643, 647 (2001),
and incarceration, see In re Williams, 149 N.C. App. 951, 960-61,
563 S.E.2d 202, 207 (2002).
In the instant case, the evidence at trial supported the
following: (1) the father is currently serving a term of not less
than thirty-five years, (2) the father was released from prison in
January 2002 for only three days before committing the offense for
which he is currently incarcerated and during those three days only
spent approximately three minutes with the children, (3) the father
has not supported the children in any way, (4) the father has not
contacted DSS regarding the status or welfare of the children, (5)
the father offered no placement for the children which was deemedsuitable after a home study by DSS, (6) the children were
previously adjudicated neglected given their living and medical
conditions, and (7) the father had no contact with the children
after his incarceration in January 2002. The trial court made
findings of fact with respect to all but the last of these
enumerated facts.
The majority of the father's arguments concern his parenting
abilities in light of his incarceration and his proffer of his
parents, the paternal grandparents, as placement for the children.
We are unpersuaded. With respect to his incarceration, we note the
father has not contacted DSS or the children. While he testified
that he sent letters to his parents for his children, he also
testified he knew the children did not receive the correspondence
because his parents were unaware of the children's location. He
testified he never contacted DSS because he believed “[t]hey
wouldn't tell me nothing. If I need anything . . . I go to my
attorney. I knew going to [DSS] would be useless.” The father's
forecast, even if genuinely believed, cannot hide the fact that he
simply made no attempt at all to contact DSS or learn of his
children's location or welfare. The father's letters to the
children are also unavailing in light of the fact that he knew they
were not receiving them and undertook no action which would help
assure the letters would reach the children. While incarceration
may impact a parent's ability to undertake traditional parental
action, the father could still contact his children, offer suitableplacement options, and otherwise exert some effort to be involved
in the children's lives.
Given the record evidence, we find no error in the trial
court's termination of the father's parental rights. As the trial
court correctly found, the father was released from prison and,
instead of visiting his children to offer familial support, love,
care, and discipline, the father opted to engage in further
criminal activity to the detriment of his children. While
incarceration cannot, alone, justify terminating a parent's rights,
a parent's choice to engage in actions which will deprive the
children of the benefits of his presence is certainly a factor the
trial court can consider. Simply put, defendant engaged in
criminal activity instead of spending time with his children and
spent only three minutes with his children over the course of three
days when he had the opportunity to be with them. Such facts bear
on the question of neglect. Likewise, the father's failure to
support his children in any way since his incarceration is
relevant. We speak of more than monetary support. As noted
before, the father neither contacted his children directly nor
contacted DSS in any manner to inquire as to their needs or
welfare. Notwithstanding the father's ability or willingness to
provide financial support, the father has taken no meaningful,
affirmative actions in favor of the children. The findings of the
trial court are supported by clear and convincing evidence, and we
find no error in the trial court's adjudication that the father'sparental rights could be terminated for neglect under N.C. Gen.
Stat. § 7B-1111(a)(1).
In his last assignment of error, the father asserts the trial
court erred in failing to conduct a separate, bifurcated hearing as
to whether termination of his parental rights was in the best
interests of the children. This Court has previously expressly
rejected that a termination of parental rights proceeding had to
take place in two separate hearings on the presumption that the
judge knows the law and can “consider the evidence in light of the
applicable legal standard and to determine whether grounds for
termination exist before proceeding to consider evidence relevant
only to the dispositional stage.” In re White, 81 N.C. App. 82,
85, 344 S.E.2d 36, 38 (1986) (citing 1 H. Brandis, North Carolina
Evidence § 4a (2d rev. ed. 1982)). This is true regardless of
whether the trial court verbalizes that it has moved from one phase
to another or whether it occurs in two separate hearings. This
argument is without merit.
The father argues alternatively in this assignment of error
that the trial court never undertook the dispositional phase
concerning the best interests of the children because “no evidence
[was heard] to support a finding or conclusion that termination of
the [father's] parental rights is in [the children's] best
interest.” We disagree. First, the father fails to cite or argue
the correct standard of review, which is whether the trial court
abused its discretion with respect to this phase of the hearing.
Second, we note that at the dispositional stage, “a court isrequired to issue an order of termination unless it determine[s]
that the best interests of the child require that the parental
rights of such parent not be terminated.” In re Parker, 90 N.C.
App. 423, 431, 368 S.E.2d 879, 884 (1988) (citation and internal
quotation marks omitted). Here, the trial court expressly found
that there was a “reasonable probability that the neglect of the
[children] by [their] parents will continue for the foreseeable
future” as well as that termination was in the children's best
interests “in order to provide a safe and permanent home . . . .”
Having found that termination was justified due to neglect and that
such neglect was likely to continue, we find no abuse of discretion
by the trial court in concluding it was in the best interests of
the children to terminate the father's rights. This assignment of
error is overruled.
We have carefully considered respondents' remaining arguments
and find them to be without merit.
Affirmed.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
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