An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-594


NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

IN THE MATTER OF:
S.L.H.                        New Hanover County
                            No. 04 J 248

    Appeal by respondent mother from order entered 11 January 2005 by Judge John W. Smith in New Hanover County District Court. Heard in the Court of Appeals 8 December 2005.

    No brief filed for petitioner-appellee New Hanover County Department of Social Services.

    Joann A. Waters, for petitioner-appellee Guardian ad Litem.

    Richard Croutharmel, for respondent-appellant.

    TYSON, Judge.

    K.M. (“respondent”) appeals from an order terminating her parental rights as to her minor child, S.L.H. We affirm.

    I. Background
    Respondent's mother died in 2001. Since that time, respondent has struggled with alcohol addiction and drug abuse. Respondent entered Carolina Manor for a twenty-one day alcohol inpatient treatment program in May 2001. Following that program, she entered another inpatient alcohol treatment program, Searise. During respondent's treatment, S.L.H. stayed with respondent's friends. Respondent began abusing alcohol again on 29 July 2001 and subsequently moved with S.L.H. into the home of an alcoholic friend. When DSS discovered respondent's home environment, itremoved S.L.H. from the home and filed a juvenile petition alleging neglect and dependency.
    Respondent filed a motion with the court to have S.L.H. returned to her care on 2 August 2001. The court denied the motion. Respondent agreed to return to Searise, and DSS allowed S.L.H. to live with respondent at Searise.
    After respondent and S.L.H. moved in an apartment at Searise, S.L.H. enrolled in kindergarten. Respondent and S.L.H. further bonded together during this time. They spent time together at a nearby park and would often take public transportation to visit the public library.
    Respondent achieved more than 150 consecutive days of sobriety as of January 2002. Her case manager reported that respondent's attitude was much improved, that she fully participated in the program, and that she appeared to be sincere in her recovery efforts.
    Prior to her discharge from Searise, in Summer 2002, respondent suffered a neurological problem that required medical treatment. S.L.H. returned to foster care for a short period of time. Respondent soon recovered, and the court granted her full legal and physical custody of S.L.H. on 11 July 2002 and waived future hearings.
    Shortly after respondent left Searise, her husband was murdered, and respondent identified his body at the morgue. Respondent suffered nightmares about the murder for more than two years.    Following the death of respondent's husband, DSS received reports that respondent was again abusing alcohol. DSS assigned social worker, Cindy Hudson (“Ms. Hudson”), to monitor the family in August 2002. Ms. Hudson prepared a case plan that required respondent to: (1) participate in substance abuse treatment and mental health services; (2) maintain employment; and (3) maintain housing for herself and S.L.H.
    Respondent maintained housing but remained unemployed. She attended Alcoholics Anonymous (“AA”) meetings occasionally but did not participate in an ongoing alcohol treatment program or a mental health program.
    On 8 January 2003, Ms. Hudson visited respondent at her home and found her intoxicated. On 19 January 2003, another DSS social worker, Renee Hall (“Ms. Hall”), returned to respondent's home and found respondent and another woman intoxicated. Ms. Hall removed S.L.H. from respondent's home and filed a juvenile petition alleging neglect and dependency of S.L.H. On 5 February 2003, DSS denied respondent visitation with S.L.H. because they smelled alcohol on her breath.
    The court found S.L.H. to be neglected and dependent and ordered S.L.H.'s legal and physical custody to remain with DSS on 3 April 2003. Ms. Hudson prepared another case plan that required respondent to maintain housing and obtain substance abuse and mental health treatment. Respondent maintained housing but remained unemployed and did not receive substance abuse or mental health treatment.    Respondent visited S.L.H. throughout the first half of 2003. Respondent's last visit with S.L.H. occurred on 6 August 2003. On 7 August 2003, Ms. Hudson received a report that respondent had tested positive for marijuana after a drug screen. Without the court's authority, Ms. Hudson and the guardian ad litem ceased visitation until respondent achieved a negative drug screen. In late 2003, respondent received a substance abuse assessment. The assessments found respondent was dependent on cannabis and alcohol and recommended she attend the New Horizons program. Respondent never attended the New Horizons program. Respondent attended numerous AA meetings throughout Fall 2003.
    At a court hearing in March 2004, the court granted DSS discretion to allow or withdraw visitation. Visitation never resumed because respondent failed to test negative for marijuana and did not become involved in a substance abuse or mental health program. In 2004, respondent spoke with S.L.H. on Mother's Day, S.L.H.'s birthday, and Halloween.
    In April 2004, respondent was involuntarily committed to “the Oaks” due to depression and alcohol abuse. On 10 May 2004, DSS filed a termination of parental rights petition alleging: (1) respondent neglected S.L.H.; (2) respondent wilfully left the child in foster care for more than twelve 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 child; and (3) the best interests of thechild will be served by termination of respondent's parental rights.
    On 2 July 2004, a psychiatrist, Dr. Farmer, diagnosed respondent with post-traumatic stress disorder. At the Oaks, Dr. Ross confirmed this diagnosis. Doctors at the Oaks prescribed Paxil and Seroquel, which respondent took through November 2004.
    On 8 July 2004, Ms. Hudson spoke with respondent about her progress with the case plan. Respondent was living with her stepfather. Ms. Hudson did not speak with respondent again until one week prior to the termination hearing.
    During 2004, respondent worked cleaning houses, usually on Wednesdays and Fridays. In November 2004, during the same week as the termination hearing, respondent was employed as a nanny for a local family, who reported respondent was a wonderful addition to their family. Respondent spent time in jail in 2004 for not paying child support while S.L.H. remained in foster care.
    On 8 November 2004, the court terminated respondent's parental rights to S.L.H. When the court had not reduced its order to writing within the statutorily prescribed time limit, respondent filed a motion to dismiss on 16 December 2004. The court reduced its order to writing on 10 January 2005 and signed it nunc pro tunc to 8 November 2004, more than twice the time mandated by the statute. Respondent appeals.
    II. Issues
    Respondent argues the trial court: (1) was not presented sufficient evidence to conclude grounds existed to terminaterespondent's parental rights based on neglect; (2) did not support its conclusion with clear, cogent, and convincing evidence that respondent willfully left her child in foster care for more than twelve months without showing reasonable progress under the circumstances in correcting the conditions that led to her child's removal; (3) did not support its conclusion with substantial evidence that S.L.H.'s best interests required termination of respondent's parental rights; and (4) abused its discretion, violated respondent's substantial rights, and committed reversible error when it terminated respondent's parental rights to S.L.H.
III. Standard of Review
        There is a two-step process in a termination of parental rights proceeding. In the adjudicatory stage, the trial court must find that at least one ground for the termination of parental rights . . . exists. In this stage, the court's decision must be supported by clear, cogent and convincing evidence with the burden of proof on the petitioner. . . . Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.

In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
    On appeal, the standard of review at the adjudication phase is whether the trial court's findings of fact are based on clear, cogent, and convincing evidence 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). The standard of review at thedispositional phase is whether the trial court abused its discretion in terminating parental rights. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
IV. Conclusions of Law
A. Neglect

    Respondent argues insufficient evidence was presented to conclude grounds existed to terminate her parental rights based on neglect. We disagree.
    A trial court may terminate parental rights upon a finding that “the parent has abused or neglected the juvenile.” N.C. Gen. Stat. § 7B-1111(a)(1) (2003). Whether a child is neglected is a conclusion of law that must be supported by adequate findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). 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.

N.C. Gen. Stat. § 7B-101(15) (2003).
    Our Supreme Court has stated, “[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). If the child is removed from the parent before the termination hearing, “the trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of arepetition of neglect.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). “[P]arental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his] parents.” In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
    Here, the trial court made the following findings of fact:
        4. That Respondent [] is an alcoholic who has been unable to maintain recovery. That following discharge from the residential treatment program, Respondent experienced a relapse in August 2002. This relapse was regarded as an isolated incident and services were put in place which provided Respondent was to continue substance abuse treatment and seek mental health treatment.

        . . . .

        7. That following removal of S.L.H. in January 2003, a Family Services Case Plan was developed with Respondent [] to maintain employment, housing, sobriety efforts, to attend five Alcoholics Anonymous meetings a week and attend to her mental health needs. . . . On August 7, 2003, Respondent tested positive for marijuana and visitation was ceased until she tested negative. That Respondent's participation in treatment has been a Court imposed condition precedent to reunification throughout the pendency of this action.

        8. That Respondent [] has remained in denial about her alcoholism and its effect upon her parenting abilities and upon her relationship with S.L.H. That Respondent has not complied with the conditions of her Family Services Case Plan or the expectations of the Court.

        . . . .
        11. That Respondent [] has over a long period of time failed to deal with her alcoholism and has failed to make progress in abating the conditions of neglect. That the Respondent has not made progress on the Family Services Case Plan. That Respondent has only this week taken a position as a Mother's helper for a local family. Respondent has not address[ed] mental health needs nor formed a consistent relationship with a therapist despite two occasions this year in which she experienced psychiatric hospitalizations.

    This Court has stated, “[a] finding of fact that a parent abuses alcohol without proof of adverse impact upon the child, is not a sufficient basis for an adjudication of termination of parental rights for neglect.” In re Phifer, 67 N.C. App. 16, 25, 312 S.E.2d 684, 689 (1984).
    The trial court found that respondent's alcohol abuse adversely impacted S.L.H. S.L.H. was exposed to environments inappropriate for a child. When respondent sought inpatient treatment for her alcohol abuse, S.L.H. stayed with respondent's friends, who themselves suffered from substantial alcohol problems. After respondent suffered a relapse, she moved with S.L.H. into the home of an alcoholic that “was not appropriate for a child.” When S.L.H. was seven years old, a social worker visited respondent's home and found her intoxicated in the presence of S.L.H. Respondent was “glassy eyed, slurring her speech and falling over objects.” Law enforcement officers had to restrain respondent from attacking the social worker.
    S.L.H. told a therapist she felt frightened on multiple occasions when strangers would knock on the door and her mother would be passed out on the floor. She also told the therapist thatshe was often left alone in the house, while her mother was passed out from intoxication, and that she had to cook and care for herself. S.L.H. told a therapist that if she were the judge in the case she would decide that her foster mother's home “would better meet [her] needs as a kid because it's good to eat food. And it's good to have a good bed to sleep in and it's good not to have strangers around so they won't keep bugging you.” Respondent admitted to a therapist that it is impossible for a mother who is passed out from drinking to adequately care for a child.
    The January 2002 order of adjudication states that respondent “acknowledge[d] that she has a problem with alcohol abuse and addiction which has affected the care of her daughter” and that “only complete and total compliance with a recovery program will allow her to function as an adequate parent for her daughter.” Respondent failed to comply with the requirements of a recovery program. Respondent's past successes and subsequent relapses reveal the conditions that led to prior adjudications are capable of repetition. This assignment of error is overruled.
    In light of our decision, we do not consider the issue of whether respondent left her child in foster care for more than twelve months without showing reasonable progress under the circumstances in correcting the conditions that led to her removal. In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908 (“Once one or more of the grounds for termination are established” the court can address the dispositional stage.).
    B. Best Interests
    Respondent argues no evidence supports the trial court's conclusion that S.L.H.'s best interests were served by terminating her parental rights. Respondent asserts the trial court abused its discretion, violated her substantial rights, and committed reversible error when it terminated her parental rights.
    When one or more grounds to terminate parental rights is proven by clear and convincing evidence, the trial court must consider whether termination is in the best interests of the minor child. Id. In the dispositional phase, the court “shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.” Id.
    S.L.H. was removed from respondent's custody in January 2003. The termination hearing was held in November 2004. During that time, respondent failed to comply with the trial court's instructions that would have allowed her to regain custody. She was hospitalized twice for substance abuse in the six months prior to the hearing and relapsed multiple times in the past year. Respondent admits that her path to recovery will include relapses, and she may not be able to control the timing of a relapse. Respondent failed to comply with DSS's case plan. Respondent failed to show the trial court abused its discretion by concluding it was not in S.L.H.'s best interest to remain in her care. The trial court properly considered the probability of repetition of neglect and respondent's inability to maintain a safe and stable environment for S.L.H. This assignment of error is overruled.
    V. Conclusion
    The trial court did not err in concluding that respondent neglected her child. The trial court supported its conclusion with substantial evidence that S.L.H.'s best interests required termination of respondent's parental rights. The trial court did not abuse its discretion, violate respondent's substantial rights, or commit reversible error when it terminated respondent's parental rights to S.L.H. The trial court's order is affirmed.
    Affirmed.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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