IN THE MATTER OF:
C.A.A.
S.Y.C., Caldwell County
Minor Children Nos. 02J14, 02J15
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.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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