An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1019


Filed: 2 August 2005

IN THE MATTER OF:                     Wayne County
    T.M.K., T.Q.M.M., and T.M.M.        No. 03-J-108, 03-J-109 ,
                                          &nb sp;                          

    Appeal by respondent from judgment dated 8 April 2004 by Judge Rose V. Williams in Wayne County District Court. Heard in the Court of Appeals 3 March 2005.

    Baddour, Parker, Hine & Orander, P.C., by E.B. Borden Parker, for Wayne County Department of Social Services, petitioner- appellee.

    Everett, Womble, Finan & Lawrence, LLP, by Timothy I. Finan, for Guardian ad Litem, petitioner-appellee.
    Susan J. Hall for respondent-appellant.

    BRYANT, Judge.

    V.M.   (See footnote 1)  (respondent-mother) appeals from the 8 April 2004 termination of her parental rights with respect to her three children: T.M.K., age 7 ; T.Q.M.M., age 4; and T.M.M, age 8 .
    Respondent mother is twenty-five years old. Wayne County Department of Social Services (petitioner-WCDSS) originally filed a Juvenile Petition on 24 April 2002 alleging all three children tobe neglected and dependent. On 13 June 2002 the trial court adjudicated the children neglected and dependent on the grounds that respondent inappropriately disciplined her children, inappropriately supervised her children, and abused alcohol and drugs. Respondent was found to have inappropriately disciplined her children when she held T.Q.M.M. by the arm, spanked and beat her with a belt that left marks and scars on T.Q.M.M . Respondent made statements to T.Q.M.M. that respondent was tired of T.Q.M.M. and would be glad when the child was gone. Respondent was found to have had inappropriately supervised her children when she left T.M.M., at age seven, alone at home on the front porch.
    On 13 June 2002 the trial court ordered respondent to undergo drug abuse treatment and demonstrate skills learned through her participation in parenting classes. During this time the trial court placed the children in the home of M.M., the children's maternal great-aunt, at the respondent's request. Respondent was to schedule any visits with the children 48 hours in advance with M.M. Respondent successfully completed her drug abuse treatment and tested negative several times post-treatment. Respondent complied with the parenting workbook, but failed to demonstrate to the trial court what she learned or that she had implemented the skills from the workbook. Respondent failed to complete domestic violence treatment, which was also court-ordered.     At the termination of parental rights hearing , respondent admitted to concerns raised in the WCDSS Juvenile Petition (e.g. spanking T.Q.M.M. with a belt and using drugs and alcohol). On 8 April 2004, respondent's parental rights were terminated. The permanency plan is for the children to be adopted by M.M. Respondent appeals.

    On appeal respondent raises two issues: whether the trial court erred (I) in concluding respondent neglected the children and (II) in concluding it was in the children's best interest to terminate respondent's parental rights.
    The standard for appellate review in a termination of parental rights matter is whether the trial judge's findings of fact are supported by clear, cogent, and convincing evidence, and whether these findings support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). A court's finding of one statutory ground for termination, if supported by competent evidence, will support an order terminating parental rights. In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995). The court's decision to terminate parental rights, if based upon a finding of one or more of the statutory grounds supported by t heevidence in the record, is reviewed on an abuse of discretion standard. In re Brim, 139 N.C. App. 733, 744, 535 S.E.2d 367, 373 (2000).
    A “neglected juvenile” is defined 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.

N.C. Gen. Stat. § 7B-101(15) (2003). “Neglect may be manifested in ways less tangible than failure to provide physical necessities. Therefore, on the question of neglect, the trial judge may consider, in addition, a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.” In re Pierce, 67 N.C. App. 257, 263, 312 S.E.2d 900, 904 (1984) (quoting In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982)). “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted).
    In the present case, the trial court found:
        23.    [V.M.] placed her youngest child, T.M.K. with [M.M.] when the juvenile was ten monthsold along with the siblings of this child and left the state for several months. . . .  25.     That many relatives of [V.M.] live in Johnston County. She, however, moved to Wayne County to get away from her relatives. 26.     That after [V.M.] moved to Wayne County, she was investigated by the Wayne County Department of Social Services and she voluntarily placed [the children] with [M.M.] who lives in Johnston County. . . .  28.     [V.M. was kicked out of 11th grade in high school,] has no educational job training . . .[and] has only consulted with individuals at Wayne Community College and is not registered and does not have any definite date on which she would start any additional education. . . .  29.     [V.M.] is not employed but testified that she would start employment on this date when she got out of court at Kentucky Fried Chicken. . . . 30.     [V.M.] testified that she quit jobs when she got tired of them. . . .  34.      [V.M.] paid no support to [M.M. while the children lived with M.M., although] she has had the ability to do so at some times by working. . . .  38.     [V.M.] has in fact visited the juvenilesan average of 48 minutes per month since the juveniles were placed in the home of [M.M.], although she had unlimited opportunity to have supervised visits in the home of [M.M.]. 39.     [V.M.] fights with [M.M.] . . . [and] has not inquired about the health, behavior or other needs of the children and her refusal to cooperate with [M.M.] is disturbing to the [c]ourt because it shows a lack of the maturity necessary to raise the children with proper care. . . .  43.     [V.M.] was ordered to attend . . . training . . . for domestic violence [prevention]. . . but quit. . . . The [c]ourt has no way to know if [V.M.] could protect herself or her children from perpetrators of domestic violence in the future. 44.     [V.M.] took the shot records and social security cards of the children from [M.M.] who needed the documents to provide medical care for the children, and has, for reasons unknown to the [c]ourt, refused to give them back. . . . This action is not responsible conduct in the best interest of the children and again evidences a lack of maturity and responsibility the children require. . . .  54.     [V.M.] has shown negligence and irresponsible conduct and a lack of attention to her children since they were removed from her care by the [c]ourt. 55.     [V.M.] has shown the [c]ourt no way that she can support her children if they were returned to her and although she said she had a job that started today, she has been in [c]ourt all day. . . .  60.     [V.M.'s] children have somewhat of a bond with her except her eldest child, T.M.M., who was beaten by [V.M.], seems to have some fear of being with [V.M.]. 61.     That it is unlikely reunification will take place between the juvenile[s] and the mother in the foreseeable future. 62.     That the children have a very good bond with [M.M.] They have received good care from [M.M.] and have a steady home life. . . .  65.     That the grounds exist to terminate the parental rights of [V.M.] with respect to [these juveniles]. The ground existed at the time of the filing of the petition, they existed at the time of trial and are likely to continue.

    The trial court made specific findings supporting respondent's ability to care for her children. While respondent managed to complete some of the court-ordered assignments between the 13 June 2002 neglect adjudication hearing and the 8 March 2004 disposition hearing, she did not fully comply with the trial court's orders. Respondent dropped out of domestic violence prevention classes, after admitting to having repeatedly beaten her children. She was unable to demonstrate whether she gleaned any parenting skills needed to raise her children, in order to succeed in providing the children with a home like the one M.M. has been providing in absence of the respondent. The trial court found that respondentfailed to financially assist M.M. with the care of her children when respondent was able to do so. Further, the trial court found respondent had also inexplicably impeded M.M. from providing the children with basic medical care by depriving M.M. of the necessary documentation. The trial court found this conduct showed respondent lacked the requisite maturity to show her ability to properly care for her children. Based on clear, cogent and convincing evidence, the trial court did not err in determining respondent has and continues to neglect her children. This assignment of error is overruled.
    Respondent next argues the trial court abused its discretion in concluding that termination of respondent's rights was in the best interest of the children.
    “[T]o require that termination of parental rights be based 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). Therefore, “[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 (emphasisin original). If the petitioner proves that one or more grounds for termination exist, the trial court moves to the disposition phase at which time the trial court determines whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110 (2003); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). The standard of review on appeal is abuse of discretion. In re Yocum, 158 N.C. App. 198, 206, 580 S.E.2d 399, 403 (2003); In re Brim, 139 N.C. App. 733, 744, 535 S.E.2d 367, 373-74 (2000). N.C.G.S. § 7B-1110 states:
        (a)     Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated. . . .  (b)    Should the court conclude that, irrespective of the existence of one or more circumstance authorizing termination of parental rights, the best interests of the juvenile require that rights should not be terminated, the court shall dismiss the petition or deny the motion, but only after setting forth the facts and conclusions upon which the dismissal or denial is based.

N.C.G.S. § 7B-1110 (2003) (emphasis added) .     
    Respondent argues it was not in the children's best interests for her parental rights to be terminated. We disagree. Withrespect to respondent, the trial court found she has had limited, intermittent visits with the children, has not consistently maintained a job, has not demonstrated improved parenting skills, and has not completed domestic violence prevention courses. The trial court found clear indications respondent is either unwilling or incapable of assuming the responsibilities associated with the proper care of her children. With respect to M.M., the trial court found M.M. has a good bond with the children, has been providing stability, medical care and consistent supervision for respondent's children, with little, if any, assistance or cooperation from respondent. Therefore, the trial court concluded “the best interests of the juveniles will be promoted and served by terminating parental rights.” Here, the trial court, in its discretion, set out detailed findings from substantial and competent evidence which support the conclusion that it is in the best interest of the three children to terminate respondent's parental rights.     
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e)

Footnote: 1
    Initials have been used throughout to protect the identity of the juveniles.

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