An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-640


Filed: 19 April 2005

    S.Y.C.,                            Caldwell County
    Minor Children                        Nos. 02J14, 02J15

    Appeal by respondent-father from orders entered 17 November 2003 by Judge Robert M. Brady in Caldwell County District Court. Heard in the Court of Appeals 11 April 2005.

    Lauren Vaughan for Caldwell County Department of Social Services petitioner appellee; and Attorney Advocate Elizabeth M. Spillman, for the Caldwell County Guardian Ad Litem Program.

    Robert W. Ewing for respondent-appellant.


    McCULLOUGH, Judge.

    Respondent is the father of minor child, S.Y.C., born 31 May 1996. He is not the father of minor child, C.A.A., born 1 June 1999. The mother of both minor children is not a party to this appeal.
    The evidence tends to show that Caldwell County Department of Social Services (DSS) became involved in this case in October 2001 after receiving reports that the mother had been seen hitting two- year-old C.A.A. on the head and upper body with her hand. Thereafter, DSS received an additional report that the mother had left C.A.A. in the home without supervision and failed to enroll five-year-old S.Y.C. in school. On 18 December 2001, the mothersigned a voluntary adoption relinquishment for the minor children because she was moving to Connecticut and told DSS agents that she could not take the children with her. The mother revoked the relinquishment on the very next day. She then signed a voluntary placement agreement with DSS, and the minor children were placed in foster care when the mother left the state. At this time, DSS could not locate respondent-father.
    On 25 January 2002, DSS obtained a non-secure custody order for the minor children, whereupon DSS immediately filed a neglect and dependency petition. Respondent-father finally contacted DSS on 4 February 2002, when he returned from Laredo, Texas, where he had resided since crossing the border from Mexico.
    The neglect and dependency petitions were adjudicated on 6 March 2002. Both the mother and respondent-father were present at the adjudication hearing. Based upon the stipulations of the mother and respondent-father, the trial court adjudicated the minor children neglected. The trial court specifically found that the mother had been evicted from her residence in Caldwell County, that she was unemployed, and that she had no means to provide for the minor children. The court also found that the mother had not been in contact with DSS (or the minor children) since she placed the children with the department; that she provided dishonest information to DSS regarding her employment and living situation; and that her future plans in that regard were uncertain. As a result, the trial court ordered that the minor children's custody be placed with DSS. DSS voluntarily dismissed the allegations ofdependency without prejudice.
    The goal after the 5 April 2002 adjudication and disposition orders was reunification and to that end, the mother and respondent-father were ordered by the court to the following : (1) complete psychological examination; (2) attend parenting and nurturing classes; (3) submit to random drug testing; (4) gain consistent employment; (5) pay child support; (6) take ESL classes if available through their employment; (7) not partake in any criminal activities; and (8) submit to substance abuse evaluations if there is evidence of any drug usage in the drug screens. Several review hearings were held. On 8 January 2003, the court ordered that reunification efforts cease after the parents failed to make sufficient progress. DSS then moved forward with plans to have the children adopted.
    Thereafter, on 21 February 2003, DSS filed a petition to terminate the parental rights of the mother as to both of the minor children, and the parental rights of respondent-father as to S.Y.C. The evidence tended to show that respondent-father had complied with the court's orders in October and November 2002 by completing the required psychological evaluations and having negative drug tests. In addition, respondent-father attended, but did not complete or graduate, from the required parenting classes.
    DSS lost contact with respondent-father for a time and it was reported that he had left the county to work in Charlotte, North Carolina and then New Jersey. Between November 2002 and 11 April 2003, respondent-father made no attempt to inquire about S.Y.C.,nor did he pay any child support for her. In short, respondent- father made no attempt to meet any of the goals set forth in his case plan or the court's orders. It was not until 11 April 2003, in response to the service of process by publication in the termination proceeding, that respondent-father contacted DSS. The mother had last visited DSS on 20 November 2002 to tell the social worker that she intended to visit Honduras for a month.
    Respondent-father was present at the final permanency planning hearing on 25 June 2003--just before the hearing on the petition for termination of parental rights commenced on 26 August 2003. Though respondent-father was present at the 26 August 2003 termination hearing, when the hearing resumed on 15 October 2003, respondent-father was not present. From the time between March 2002 and the onset of the termination hearing in August 2003, respondent-father had resided in at least nine residences. He failed to maintain consistent contact with DSS and apprise DSS where he was residing. In addition, between January 2002 and the initiation of the termination proceedings in August 2003, respondent-father had worked at numerous different jobs. Despite his working, however, respondent-father was $3,041.15 in arrears on his support obligation to S.Y.C. Significantly, respondent-father never re-enrolled in parenting classes.
    After hearing the evidence and arguments of counsel, the trial court determined that grounds existed under N.C. Gen. Stat. § 7B- 1111(a)(1) and (a)(2) (2003) to terminate respondent-father's parental rights as to S.Y.C. The court also determined during thedispositional phase of the proceeding that it was in the best interests of S.Y.C. that respondent-father's parental rights be terminated. Respondent-father 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, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). Under N.C. Gen. Stat. § 7B- 1109(e) the trial court is required to “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 (2003), 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).
    On appeal, the dispositive issue is “'whether the court's “findings of fact are based upon clear, cogent and convincingevidence” 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, 396 (1996).     
    In the case sub judice, the trial court terminated respondent- father's parental rights based upon N.C. Gen. Stat. § 7B-1111(a)(1) and (a)(2). Respondent-father first argues that the trial court erred in terminating his 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). N.C. Gen. Stat. § 7B-101(15) (2003) 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.
In instances, where the minor children have been adjudicated neglected and the parents have not had custody for a significantperiod prior to the termination hearing, the prior adjudication standing alone will not be sufficient to support termination. In re Brim, 139 N.C. App. 733, 742, 535 S.E.2d 367, 372 (2000). This Court in Brim further explained,
        the 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 care for 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)).
    In the instant case, the trial court made the following pertinent findings:
                5.    The Court is familiar with the file in this matter and has been involved with these juveniles since the issuance of the Non-Secure Custody Order, which was issued by the undersigned. Throughout the pendency of the underlying petition alleging neglect, the parents have come and gone; sometimes being present for hearings and other times not being present for scheduled reviews. At times, one parent would be present but not the other one. Both named parents were absent from the county for an extended period of time and failed to act in a manner consistent with their Constitutionally protected status as parents.

                        6.    Neither named Respondent parent appears to understand what is wrong with their actions which caused the children to be placed in the custody of the Petitioner. They do not, even as of the hearings in this matter, understand what is wrong with leaving their children and then returning months later to pick back upwith the lives of their children. They saw no conflict between their actions and absences and the responsibilities of being parents. Neither parent has provided reasonable support for the children. Their lack of understanding exists despite the presence of Spanish language translators to assist them in these matters.

                7.    On March 6, 2002, the juveniles were determined to be neglected juveniles based on the stipulations by both named Respondent parents that the allegations of the petition were true. The juveniles have remained in foster care for at least fifteen months without the Respondent parents making progress in correcting the circumstances which resulted in their coming into foster care. The named Respondent parents failed to comply with the requirements of the case plan which was created to assist them in acquiring the skills to allow them to appropriately parent the juveniles. Neither named Respondent parent has complied with recommended treatments to address issues identified in their respective psychological evaluations. They have continued to commit criminal acts in that, during the pendency of this action, the Respondent mother was charged with assaulting the social worker in this matter. The mother received a prayer for judgment continued in that matter. The Respondent father is not present in Court for the final hearing on the adjudication of the Petition to terminate parental rights having failed to appear in District Criminal Court in Caldwell County the day before such final hearing. Such appearance in criminal court was to answer a charge of Misdemeanor Probation Violation. Upon his failure to appear, a warrant for his arrest was issued. The Court confirmed that he was not in jail at the time the adjudicatory hearing was called to resume.

                8.    Neither parent has maintained stable housing or consistent employment duringthe time this matter has been before the Court. Neither parent has contributed to the support of the juveniles despite being physically able to obtain and maintain employment.

        . . . .

                11.    The named Respondent father did obtain a psychological evaluation but failed to follow the recommendations to treatment. He failed to appear for an appointment with the Department to receive the information from the evaluation despite the fact that the Department had arranged for a qualified translator to be present for such meeting to explain the requirements of the evaluation to him. He failed to complete parenting classes which were intended to assist him in learning how to appropriately parent his child. He failed to maintain a stable, appropriate residence.

                12.    Despite the services offered and accessed by the Respondent parents they remain in the same or similar situations as when the Petitioner first became involved with the family. The Respondent parents were briefly exposed to new ideas for parenting their children but were unable to demonstrate that they could apply these parenting techniques in their family setting.

                13.    The named Respondent parents have failed to address the circumstances which caused the juveniles to come into the custody of the Petitioner and it is unlikely that they will address those issues in the foreseeable future.

                14.    The Respondent parents have allowed the children to remain in foster care or out of home placement for a period in excess of twelve months prior to the filing of this Petition without addressing to the satisfaction of the Court the issues and conditions which resulted in their being placed in the custody of the Petitioner.                 15.    The juveniles were adjudicated as neglected juveniles by the Court on March 6, 2002 based upon the stipulation by the Respondent parents that the allegations of the Petition were true. The neglect of the juveniles continues as of the hearings on the Petition filed seeking to terminate the parental rights of the Respondent parents.

        . . . .

                18.    [Respondent-father] has a history of criminal conduct and some domestic violence with the Respondent mother. He did not comply with the requirements of the case plan. He has no stable residence and frequently resides with his extended family or disappears for periods of time when his whereabouts are unknown.
                19.    [Respondent-father] has left his child [S.Y.C.] in foster care or out of home placement for a period in excess of one year to-wit since January 25, 2002, and failed to show to the satisfaction of the Court that he has made reasonable progress to address the conditions which resulted in the child being placed into foster care. He has failed to successfully address his ineffective parenting style despite participation in Nurturing Classes; he has failed to recognize and address the issues of domestic violence which were part of his relationship with the Respondent mother and he has failed to avoid participating in criminal activities which result in his being charged and required to appear in court.

                20.    [Respondent-father] has neglected his child in the past and such neglect continues as of the date of this hearing based upon his conduct in failing to obtain appropriate counselling, his lack of ability to implement appropriate parenting skills despite attending classes to assist him in those skills and his unwillingness to understand the impact and effect of his domesticviolence and criminal behavior on the juvenile.

    Based upon those findings, the court concluded that S.Y.C. is and was a neglected juvenile within the meaning of N.C. Gen. Stat. § 7B-101(15). Specifically, the court concluded,
                4.    . . . The respondent-[father] neglected [S.Y.C.] which resulted in [her] custody being placed with the Caldwell County Department of Social Services and that such neglect of the juvenile[] continues to exist at the time of this hearing.

                5.    That the respondent-[father] ha[s] left the juvenile[] placed out of the home since January 25, 2002 without correcting the conditions which resulted in the juvenile[] being placed out of the home[;] and that [he] previously failed to provide proper care, supervision, housing, education and nurture for the juvenile[].
    Though respondent-father may argue to the contrary, the evidence of record tends to show that he has done little to correct the conditions that originally led to his minor child, S.Y.C., being removed from the home. He and the mother still move around quite often, having resided in at least nine residences since the DSS social worker became involved in this case in March 2002. Similarly, respondent-father has failed to maintain stable employment and consistently pay child support. Respondent-father has had little or no personal contact with the minor child, S.Y.C., and has failed to participate in and/or benefit from various court- ordered services offered to him. Though respondent-father did enroll in parenting classes, he did not complete them all and has shown an inability to apply those concepts taught during thecourse. In addition, though respondent-father did complete the psychological evaluation required by the trial court, he failed to return to the psychologist to discuss the results of the evaluation, so that he could follow the recommendations of the evaluation.
    To this end, we conclude that the court's findings in this regard are supported by clear, cogent and convincing evidence. Moreover, those findings wholly support the court's conclusion that S.Y.C., who was previously adjudicated neglected, is still a neglected juvenile, within the meaning of N.C. Gen. Stat. § 7B- 101(9), based upon additional evidence existing at the time of the termination proceeding.
    Having so concluded, the Court need not pass upon respondent father's claim that the trial court erred in finding and concluding that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(2) to terminate his parental rights. See Baker, 158 N.C. App. at 497, 581 S.E.2d at 148. We move, then, to determine whether the court abused its discretion in concluding that it was in the best interests of the minor child, S.Y.C., to terminate respondent- father's parental rights. See In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995) (providing that an abuse of discretion standard is utilized in determining whether the trial court properly terminated the parental rights of a respondent parent).
    Here, the trial court's findings tend to show that the court carefully considered the evidence, arguments of counsel, and the law as it exists in this jurisdiction. After making specificfindings as to respondent-father's efforts and failures to correct the conditions that led to the removal of the minor child from the home, the trial court specifically made a finding as to the improvement that the minor child has made since her placement in foster care. Based upon these findings, we conclude that the trial court did not abuse its discretion in determining that it was in the best interests of the minor child to terminate respondent- father's parental rights.
    In light of the foregoing, the adjudication and dispositional orders of the trial court are affirmed.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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