IN THE MATTER OF:
J.B. and A.B.,
Nos. 03 J 88 and 03 J 89
Janet K. Ledbetter, for respondent-appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by John E. Pueschel, for guardian-ad-litem.
Respondent is the mother of J.B., a fourteen-year-old girl born on 20 March 1991, and A.B., a thirteen-year-old boy born on 7 March 1992 (the children). Since 1993, several complaints of neglect have been filed against respondent and the children's father with the Rockingham County Department of Social Services (DSS).
In November 1999, DSS substantiated that respondent left the children, then ages eight and seven, alone in a vehicle outside of a bar while respondent was inside "very intoxicated." Respondent again left the children alone and unsupervised at home on 16 April 2000. As a result, DSS removed the children from respondent'shome, and the children were adjudicated neglected.
The children remained in foster care for nine months, from April 2000 to January 2001. The children were returned to respondent's custody on 16 January 2001. Respondent's problems with substance abuse continued. In July 2001, respondent was arrested for driving while impaired and was convicted of the charge in December 2001. Respondent completed the required substance abuse classes at Rockingham County Mental Health (mental health) and regained her driver's license in July 2002. However, she failed to follow mental health's recommendation that she continue substance abuse treatment.
In April 2002, DSS substantiated that respondent again left the children alone and unsupervised while she spent the night out
of town in Burlington. Respondent's substance abuse continued to impair her ability to care for the children. Respondent signed a services agreement with DSS requiring her to obtain a substance abuse evaluation from mental health and to follow its recommendations. Respondent failed to do so and consistently denied to DSS that she had a problem with alcohol or drugs.
DSS learned in January 2003 that respondent had been arrested in Alamance County for felony possession of cocaine, misdemeanor possession of a Schedule IV controlled substance, and misdemeanor possession of drug paraphernalia. On this occasion, respondent had left the children in the home of her former husband, a convicted felon. DSS learned that respondent had frequently left the children unsupervised with her former husband for entire weekends. In January 2003, respondent sought a substance evaluation from mental health as required by respondent's services agreement with DSS. Mental health recommended that respondent check herself into an inpatient medical detoxification program and continue to receive counseling on an outpatient basis. Respondent failed to comply with these recommendations.
Respondent continued to provide inappropriate care and supervision of the children. Respondent drove while impaired, with the children in the vehicle. Frequently, respondent "passed out" or was otherwise unable to function. This resulted in respondent's failure to help the children with school attendance, homework, and everyday tasks. Respondent's parental responsibilities often fell to J.B. Many times, J.B. was left to care for herself and A.B., her younger brother.
DSS filed a petition alleging the children were neglected on 6 February 2003. Respondent failed to appear at the hearing on 6 March 2003, despite having been served with notice. The trial court entered a nonsecure custody order on 6 March 2003, giving DSS custody of the children and continuing the hearing until 3 April 2003. The children were placed with licensed foster parents.
At the hearing on 3 April 2003, the trial court adjudicated the children as neglected. The trial court found that respondent's substance abuse demonstrated an ongoing inability to provide appropriate supervision and care of the children. The trial court also found that even though DSS had offered respondent resources to address her substance abuse problem, respondent failed to availherself of those resources and denied she had any substance abuse problem. The trial court specifically ordered respondent to "comply with and complete inpatient treatment and [intensive outpatient treatment] before being allowed any visitation with the . . . children."
The trial court held a review hearing on 12 June 2003. At the hearing, respondent declined an opportunity to present evidence to show she was making an effort to remedy her substance abuse problem. Respondent and the children's father indicated "that they did not wish to have a hearing or be heard, and that there [were] no issues they wish[ed] to address."
After the 12 June 2003 review hearing, DSS social worker Bobbie Webster (Ms. Webster) advised respondent how to obtain the required substance abuse treatment. Ms. Webster told respondent that respondent would need to bring verification of treatment in order to schedule visits with the children. However, respondent made no effort to obtain treatment and made it difficult for Ms. Webster to contact her.
DSS filed a petition on 8 October 2003 to terminate the parental rights of respondent and the children's father. The children had been in the custody of DSS since their removal from respondent in March 2003, seven months earlier. As of October 2003, DSS had not heard from respondent for approximately four months.
Respondent contacted DSS in November and December 2003 and asked to visit the children. Ms. Webster told respondent thatrespondent would have to provide verification of her substance abuse treatment. Respondent agreed to do so, but failed to provide verification.
DSS filed a motion on 4 December 2003 for a review hearing pursuant to N.C. Gen. Stat. § 7B-906. The motion also requested a permanency planning hearing pursuant to N.C. Gen. Stat. § 7B-907. The trial court scheduled the hearings for 22 January 2004. Initially, a notice of hearing for the termination of parental rights was issued on 19 November 2003 and again on 5 December 2003. The trial court continued the hearing until 22 January 2004. Respondent received notice on 12 January 2004. The hearing began on 22 January 2004, but could not be completed and the trial court continued the hearing until 5 February 2004. Respondent received notice on 2 February 2004. At the 5 February 2004 hearing, Rockingham County District Court files 00 J 35 and 00 J 36 were admitted into evidence. These two files pertained to a prior adjudication of neglect of the children and detailed complaints of prior neglect.
Respondent did not testify at the termination of parental rights hearing. Respondent provided no evidence that she had sought substance abuse treatment other than a report showing she had received treatment in September and October 2003, had skipped treatment in November, and had again sought treatment in December 2003. The report referred to respondent's treatment for alcohol abuse, but did not mention any treatment for cocaine abuse. The guardian ad litem district administrator, Tabetha Delancey,testified that respondent quit the inpatient treatment program because respondent "didn't feel she needed to go."
Evidence at the hearing showed that the children's father also had a history of substance abuse. The children's father had never assumed a parental role with the children. In June 2002, A.B. went to live with his father. DSS substantiated two complaints of neglect of A.B. by his father, including an incident when A.B.'s father held a pillow over A.B.'s face during an argument. A.B. was returned to respondent's custody in December 2002. The children's father testified that his substance abuse made him unfit to have custody of the children. He further testified that he believed it was in the best interests of the children that the parental rights of both he and respondent be terminated. The children's father also testified that he and respondent had consumed alcohol and had used crack cocaine in January 2004, just weeks before the termination hearing.
John W. Grogan, Jr. (Mr. Grogan), a licensed family therapist, testified that he began treating the children in April 2003. He testified that at that time the children demonstrated symptoms consistent with post-traumatic stress disorder, including anxiety, depressed mood, nightmares, flashbacks, and fearfulness, as well as oppositional defiant disorder in dealing with authority figures. Mr. Grogan also testified that the children had improved since their foster care placement, and that J.B. had shown the most improvement and was an honor roll student. The children had become less defiant and argumentative, but expressed anxiety about beingwith respondent and their father. The children stated to Mr. Grogan that they felt comfortable and safe with their foster parents.
After considering the evidence, testimony, and legal arguments of the parties presented at the adjudication and disposition phases of the termination of parental rights hearing, the trial court terminated the parental rights of respondent and the children's father.
The trial court continued the post-disposition review hearing pursuant to N.C. Gen. Stat. § 7B-906, and the permanency planning hearing pursuant to N.C. Gen. Stat. § 7B-907. Both hearings were continued from 22 January 2004 until 5 February 2004. Respondent received notice of the 5 February 2004 review and permanency planning hearings by certified mail on 24 January 2004. At the conclusion of the termination of parental rights hearing on 5 February 2004, the trial court conducted the review and permanency planning hearings.
The order terminating the parental rights of respondent and the children's father was filed on 19 March 2004. The children's father does not appeal the trial court's order. At the termination of parental rights hearing, respondent orally advised the trial court of her intent to appeal. However, respondent did not file a timely notice of appeal of the 19 March 2004 order terminating her parental rights. Respondent filed a petition for writ of certiorari to this Court on 28 June 2004. By order dated 15 July 2004, our Court allowed respondent's appeal of the 19 March 2004order terminating respondent's parental rights.
(3) The juvenile has been placed in the
custody of a county department of social
services, a licensed child-placing agency, a
child-caring institution, or a foster home,
and the parent, for a continuous period of six
months next preceding the filing of the
petition or motion, has willfully failed for
such period to pay a reasonable portion of the
cost of care for the juvenile although
physically and financially able to do so.
N.C.G.S. § 7B-1111(a). 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 oradoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2004). Pursuant to N.C. Gen. Stat. § 7B-1109(e) (2004),
The court shall take evidence, find the facts, and shall 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. The adjudicatory order shall be reduced to writing, signed, and entered no later than 30 days following the completion of the termination of parental rights hearing.
In the present case, the trial court identified the particular grounds for termination of respondent's parental rights in its findings of fact. The trial court made a finding that "[t]here exist grounds for termination of . . . [respondent's] parental rights with respect to the juveniles, J.B. and A.B. The children have been neglected by their parents and have been left in placement outside the home for more than twelve months without making reasonable progress." The trial court clearly identified two specific statutory grounds for termination of respondent's parental rights within its findings of fact. The trial court's order complied with the requirements of N.C.G.S. § 7B-1109(e) that the trial court "shall take evidence, find the facts, and shall adjudicate the existence . . . of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent." N.C.G.S. § 7B-1109(e).
Finally, respondent argues that the trial court erred by
making findings of fact that were not supported by clear, cogent
and convincing evidence. Our Court must determine "whether the
trial court's findings of fact are supported by clear, cogent, and
convincing evidence and whether the findings of fact support the
conclusions of law." In re D.J.D., ___ N.C. App. ___, ___, 615
S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288, 291,
536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 374,
547 S.E.2d 9, 9-10 (2001)). We are bound by the findings of thetrial court "where there is some evidence to support those
findings, even though the evidence might sustain findings to the
contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246,
252-53 (1984). We will affirm an order terminating parental rights
when the findings of fact support a conclusion of law as to one or
more of the grounds stated in N.C.G.S. § 7B-1111. In re Swisher,
74 N.C. App. 239, 240, 328 S.E.2d 33, 34-35 (1985).
When deciding a petition to terminate parental rights, a trial court must determine the fitness of the parent to care for the children at the time of the termination proceeding. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). A trial court may consider "evidence of neglect by a parent prior to losing custody of a child--including an adjudication of such neglect . . . ." Id. A trial court may also examine evidence of events which occurred before the prior adjudication of neglect. Id. at 716, 319 S.E.2d at 232-33. However, a trial court must make its decision based upon the best interests of the children at the time of the termination proceeding and consider "any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Id. at 715, 319 S.E.2d at 232.
The existence of one of the statutory grounds for termination under N.C.G.S. § 7B-1111 is sufficient to support a termination of parental rights. In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996). For the reasons set forth below, we hold that the trial court's findings of fact that respondent neglected thechildren are supported by clear, cogent and convincing evidence. Therefore, having found that respondent neglected the children in accordance with the terms of N.C. Gen. Stat. § 7B-1111(a)(1), we need not address the remaining ground for termination found by the trial court. See In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990); In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982), appeal dismissed, 459 U.S. 1139, 74 L. Ed. 2d 987 (1983).
Respondent specifically assigns error to the following findings of fact contained in the order to terminate parental rights:
4. The minor children were adjudicated to be neglected on April 3, 2003, and were neglected pursuant to North Carolina General Statute 7B- 101, due to [respondent's] inability to provide proper care, supervision, or discipline for the children, due in large part to her drug and alcohol abuse. Specifically, [respondent] neglected the children in that:
i. On several occasions, while [respondent] was out of the home in search of or using illegal drugs, she left the children either completely unsupervised in the home or inappropriately supervised in the home of her ex-husband Manley May, who was a convicted felon; and in that,
ii. [Respondent] was unable to help the children with everyday tasks when they lived with her because she was often "passed out." The elder of the two children, J.B. often had to assume parental duties.
6. Both parents have willfully left the children in foster care or placement outside the home for more than twelve months without showing that reasonable progress has been made in correcting the conditions that led to thechildren's removal.
8. [Respondent] has in the past denied having a drug or alcohol problem, although [DSS] received several complaints, going back to 1993, concerning situations similar to the one which most recently brought the children into foster care. During the most recent neglect proceeding, [respondent] signed a services agreement with [DSS] but has failed to comply with its recommendations with any consistency and has in the past denied having an alcohol or drug problem. At the last review hearing, on June 12, 2003, the Court made visitation between [respondent] and the juveniles contingent on her completion of both in- patient and out-patient drug and alcohol treatment programs. Shortly after said review hearing, social worker Bobbie Webster advised [respondent] on how to seek such treatment and told her to bring verification of treatment in order to begin scheduling visits. [Respondent] did not provide verification about having begun treatment until the first morning of this hearing.
9. [Respondent] has also failed to keep social workers informed of her whereabouts during much of the time since the last review hearing. Bobbie Webster went to visit [respondent] at her previous address, on Vera Drive in Reidsville, North Carolina, and found only a sign on the door saying that [respondent] no longer lived there. Several months later, in November 2003, [respondent] left a message for Bobbie Webster, stating that she was living with [the father's] father in Greensboro, North Carolina. However, when Ms. Webster would call that telephone number, she could never reach [respondent] there and could only leave a message on the answering machine. [Respondent] was eventually served with a copy of the petition at that address, but as it took some time to do this, Ms. Webster had not known if that was indeed where she was living.
10. [Respondent] briefly reestablished contact with [DSS] in December 2003 when she called Bobbie Webster and promised to bring verification of drug treatment with her when she brought the children's Christmas gifts tothe agency. In talking to Ms. Webster, [respondent] was vague about where she had been to treatment and how long she had been there. When she brought the gifts, [respondent] failed to bring the verification of treatment.
11. [Respondent] began a detox and treatment program at Alcohol and Drug Services of Guilford County on December 13, 2003, but has not completed the treatment recommended. She has presented verification of her treatment to the Court and to her social worker for the first time on January 22, 2004.
12. The discharge summary from Alcohol and Drug Services mentions alcohol dependency and withdrawal, but does not mention cocaine use. However, [respondent] and [the father] used crack cocaine together two or three weeks before this hearing commenced.
16. There exist grounds for termination of the respondents' parental rights with respect to the juveniles, J.B. and A.B. The children have been neglected by their parents and have been left in placement outside the home for more than twelve months without making reasonable progress. Both parents have substance abuse problems which have not been adequately addressed.
21. The parental rights of [respondent] and [the father], with respect to [J.B.] and [A.B.], should be terminated and it is in the minor children's best interests that the parental rights of the respondents be terminated.
With respect to finding of fact four, respondent abandons her sufficiency argument and asserts that the finding does not pertain to current conditions of her parental fitness. However, as our Supreme Court has made clear, a trial court may consider evidence of neglect prior to a respondent's loss of custody, including prior adjudications of neglect. In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232. Finding of fact six relates to the additionalground for termination found by the trial court under N.C.G.S. § 7B-1111(a)(3), which we need not address here.
Respondent next challenges findings of fact eight, nine and ten. Respondent also abandons her sufficiency argument with respect to these findings and challenges them on the ground that they are not evidence of neglect nor evidence of the probability of a repetition of neglect. This contention lacks merit. Findings of fact eight and ten go to the heart of the trial court's conclusion that respondent neglected the children. Respondent's neglect of the children stems from her alcohol and drug abuse. Yet, respondent has consistently failed to address her substance abuse problems. As a result, there is a great probability of a repetition of neglect.
Since 1993, DSS has received several complaints alleging that respondent neglected the children due to respondent's substance abuse problems. Respondent entered a services agreement with DSS in which she agreed to undergo treatment for alcohol and drug abuse, but she failed to abide by that agreement. Respondent has also failed to comply with the trial court's order that she undergo substance abuse treatment and provide verification of that treatment in order to visit with the children. Because of respondent's untreated alcohol and drug abuse problems, the children are neglected juveniles in that they do "not receive proper care, supervision, or discipline from [respondent]" and live "in an environment injurious to [their] welfare." N.C.G.S. § 7B- 101(15). As to finding of fact nine, although it is supported bythe testimony of Ms. Webster, it is not a necessary finding to conclude that respondent neglected the children.
Respondent next asserts that finding of fact eleven is not supported by clear, cogent and convincing evidence because respondent actually began a detox and treatment program on 27 September 2003 rather than 13 December 2003, as stated in the finding. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2004), a trial court sitting without a jury must: "(1) find the facts specially; (2) state separately the conclusions of law resulting from the facts so found; and (3) direct the entry of the appropriate judgment." In re Anderson, 151 N.C. App. 94, 96, 564 S.E.2d 599, 601-02 (2002) (citing Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)). A trial court should find the specific ultimate facts necessary to support its judgment and those facts must be "sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence." Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977). However, only those findings of fact which constitute ultimate facts need be supported by clear, cogent and convincing evidence. Subsidiary or evidentiary facts do not have to be so supported. A trial court need not state the evidentiary facts relied upon because Rule 52 "'does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts.'" In re Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (quoting Quick, 305 N.C. at 452, 290 S.E.2d at 658).
Respondent here challenges an evidentiary fact included by thetrial court in its findings of fact. The date respondent began treatment does not constitute an ultimate fact necessary to prove that respondent neglected the children. Because this fact was not necessary to the trial court's ultimate determination, it is not required to be supported by clear and convincing evidence.
Respondent also argues that finding of fact twelve is not supported by clear and convincing evidence. The trial court found that respondent and the children's father used crack cocaine together two or three weeks before the termination of parental rights hearing. Respondent challenges the finding on the basis that the children's father was not a credible witness. However, it is the "function of trial judges in nonjury trials . . . to weigh and determine the credibility of a witness." In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996) (citing Ingle v. Ingle, 42 N.C. App. 365, 368, 256 S.E.2d 532, 534 (1979)). The children's father testified that he and respondent used crack cocaine on 12 January 2004. He admitted that he consumed five beers before coming to court, but he testified that he was not drunk. The children's father also conceded that he might have misstated the date on which he and respondent consumed the crack cocaine. The children's father did not, however, repudiate his testimony that he and respondent consumed crack cocaine within several weeks before the termination of parental rights hearing. Because there is clear and convincing evidence to support this finding of fact, this argument fails.
Finally, respondent challenges findings of fact sixteen andtwenty-one. These findings should properly be labeled conclusions of law, and we will treat them as such. Carpenter v. Brooks, 139 N.C. App. 745, 752, 534 S.E.2d 641, 646 (2000). In finding sixteen, the trial court determined that respondent neglected the children and had not adequately addressed her substance abuse problems. In finding twenty-one, the trial court further determined that the parental rights of respondent and the children's father should be terminated and that it was in the best interests of the children that the parental rights of respondent and the children's father be terminated.
The trial court's findings of fact clearly support these conclusions. Prior to the adjudication of neglect in March 2003, respondent had neglected the children by leaving them either completely unsupervised or inappropriately supervised with a convicted felon. While the children were in her care, respondent was often impaired by her substance abuse and was unable to assist the children with daily tasks. After the adjudication of neglect, respondent failed to comply with the services agreement she entered with DSS. She never completed the inpatient treatment ordered by the trial court as a prerequisite to visitation with the children, nor did she seek treatment for her drug problem. Finally, respondent smoked crack cocaine with the children's father two or three weeks before the termination of parental rights proceeding.
The challenged findings of fact contained in the order to terminate parental rights are supported by clear, cogent and convincing evidence. The mislabeled conclusions of law aresupported by the findings of fact. Accordingly, we overrule respondent's assignments of error on this issue.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***