An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 April 2006
IN THE MATTER OF J.W. Mecklenburg County
No. 2004 J 235
Appeal via petition for writ of certiorari
mother from order entered 25 October 2004 by Judge Louis A. Trosch,
Jr., in Mecklenburg County District Court. Heard in the Court of
Appeals 25 January 2006.
Mecklenburg County Attorney's Office, by Twyla Hollingsworth
George, for petitioner appellee; and Emily B. Uhler-Lewis, for
the Guardian ad Litem.
Winifred H. Dillon for respondent-mother appellant.
Respondent-mother seeks review of a district court order
terminating her parental rights as to the minor child J.W. We
grant her petition for review and affirm the district court's
The minor child J.W. was born to respondent-mother on 16
October 2003. J.W. was born prematurely, weighed less than four
pounds upon delivery, and tested positive for cocaine. J.W.
remained in the hospital for six weeks following his birth.
On 27 October 2003, a social worker with Mecklenburg County
Youth and Family Services (YFS) met with the parents of the
child. During this meeting, respondent-mother admitted to havinga six-year crack cocaine habit. She was also serving a term of
criminal probation. Respondent-mother agreed to begin a substance
abuse treatment program.
Respondent-mother failed to subsequently complete a substance
abuse program. Further, she made infrequent and sporadic attempts
to visit with J.W. during his six-week stay in the hospital, and
YFS experienced difficulty contacting her and confirming her
whereabouts. In addition, respondent-mother failed to complete the
requisite paperwork to obtain financial assistance from YFS.
Accordingly, on 2 December 2003, J.W. was placed in the non-secure
custody of YFS.
At a dispositional hearing conducted 19 February 2004, the
evidence tended to show that respondent-mother was arrested on 18
January 2004. She admitted that she had been hiding out while
J.W. was in the hospital in an effort to avoid incarceration.
Respondent-mother informed the court that she could be facing a
twelve-month active sentence. There was also evidence that
respondent-mother had not maintained contact with YFS and had not
inquired about the welfare of the child. The trial court entered
an order making adoption the permanent plan for J.W. and directed
YFS to file a petition to terminate respondent-mother's parental
rights within sixty days. YFS filed a petition to terminate
parental rights in March of 2004.
During a hearing held in August and September of 2004,
respondent-mother testified that she had a lifestyle that
involved drug addiction, criminal behavior, and stealing fromfamily members. At a subsequent termination hearing, the evidence
tended to show that J.W. continued to need considerable medical
care due to conditions resulting from his premature, drug-positive
birth. Further, the evidence tended to show that respondent-mother
was not in a position to meet J.W.'s extensive medical needs and
that she had not even inquired about J.W.'s health between December
of 2003 and October of 2004.
On 25 October 2004, the trial court entered an order
terminating respondent-mother's parental rights as to J.W.
Specifically, the court concluded that grounds for termination
existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) because
respondent-mother had neglected J.W. and there was a high
probability that such neglect would continue in the future. The
court also determined that J.W.'s best interests would be served by
a termination of respondent-mother's parental rights.
Respondent-mother's Petition for Review
Respondent-mother failed to file a timely notice of appeal
following entry of the order terminating her parental rights. The
statute which was applicable at the time that respondent-mother
filed her notice of appeal, N.C. Gen. Stat. § 7B-1113, repealed by
2005 N.C. Sess. Laws ch. 398, §§ 18, 19 (effective Oct. 1, 2005 and
applicable to actions filed thereafter), required a parent to give
written notice of appeal within ten days after entry of the order
terminating her parental rights. Respondent-mother failed to file
her notice of appeal within ten days after entry of the terminationorder which she seeks to challenge. Accordingly, her appeal is
However, respondent-mother has filed with this Court a
petition for a writ of certiorari in which she seeks review of the
arguments set forth in her appellate brief. Rule 21(a)(1) of the
North Carolina Rules of Appellate Procedure permits this Court to
issue a writ of certiorari to review an order when the right to
prosecute an appeal has been lost by failure to take timely
action. Pursuant to our authority under this Rule, we grant
respondent-mother's petition for a writ of certiorari and review
the order terminating her parental rights.
Discussion of Issues
The first issue for our consideration is whether the trial
court erred by concluding that grounds for termination existed
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) because respondent-
mother had neglected J.W. and there was a high probability that
such neglect would continue in the future. We discern no error in
This Court reviews an order terminating parental rights for
whether the findings of fact are supported by clear, cogent, and
convincing evidence, and whether those findings of fact support a
conclusion that parental rights should be terminated for one of the
grounds set forth in N.C. Gen. Stat. § 7B-1111(a) (2005). In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996).
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), a parent's rights toa child may be terminated 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 [N.C. Gen. Stat. §] 7B-101. N.C. Gen. Stat.
§ 7B-101(15) (2005) 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 previous decisions, this Court has upheld a determination of
neglect where the parent infrequently corresponded with the person
taking care of the child and failed to inquire as to the well being
of the child. In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d
83, 86 (2003).
In the instant case, the evidence tended to show that
respondent-mother was unable to care for J.W. because of a
substance abuse problem and a pattern of criminal behavior and
that, notwithstanding the child's serious medical problems,
respondent-mother failed to maintain regular correspondence with
YFS and failed to make inquiries concerning the welfare of the
child. Further, given respondent-mother's failure to complete
substance abuse treatment and her continuing inability to provide
for the needs of the child, the evidence established that she was
likely to continue to neglect J.W. in the future. The trial
court's findings to this effect, and the court's resultingconclusion that grounds existed to terminate respondent-mother's
parental rights because of her neglect of J.W., must be affirmed.
Respondent-mother also raises an issue as to whether the trial
court erred by determining that J.W.'s best interests would be
served by a termination of parental rights. Respondent-mother's
contention in this regard lacks merit.
If a trial court determines that grounds to terminate parental
rights 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. N.C. Gen. Stat. § 7B-1110(a) (2003), amended by 2005
N.C. Sess. Laws ch. 398, § 17 (effective Oct. 1, 2005 and
applicable to actions filed thereafter). The trial court's
decision to terminate parental rights, if based upon a finding of
one or more of the statutory grounds supported by evidence in the
record, is reviewed on an abuse of discretion standard. In re
McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174, disc. review
denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
Given the facts and circumstances of the instant case, we
discern no abuse of discretion in the trial court's determination
that the best interests of J.W. would be served by terminating
respondent-mother's parental rights. The trial court's decision in
this regard therefore must be affirmed.
The foregoing discussion makes it unnecessary for this Court
to address respondent-mother's remaining argument on appeal. The
trial court's order is
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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