IN RE: Wayne County
E.J.C., No. 04 J 194
minor child
Borden Parker, for petitioner-appellee Wayne County Department
of Social Services.
Annick Lenoir-Peek, for respondent-appellant mother.
Katharine Chester, for respondent-appellant father.
Nelson Mullins Riley & Scarborough, LLP, by Christopher M.
Thomas and Wallace C. Howell, III, for Guardian ad Litem.
Tim Finan, for Guardian ad Litem.
LEVINSON, Judge.
Respondent parents appeal from an order terminating their
parental rights in the minor child E.J.C. We affirm.
E.J.C. was born on 23 April 2003 in Wayne County to both
respondents. The day after E.J.C. was born, Wayne County
Department of Social Services (DSS) received a protective services
report because mother tested positive for cocaine. Between April
2003 and March 2004, E.J.C. began living with his aunt and,
beginning 14 March 2004, he was placed in foster care. On 21
September 2004, DSS filed a petition to terminate the parentalrights of both parents. The petition alleged that respondents
neglected E.J.C. in that they abused controlled substances. A
hearing was held on 10 January 2005, and by order entered 24
January 2005 the trial court terminated the parental rights of
respondents. From this order respondents now appeal.
Respondents contend the trial court erred in concluding that
grounds exist to terminate their parental rights because (1)
certain findings of fact are not supported by sufficient evidence,
and (2) neglect did not exist at the time of the hearing.
Respondents first argue that certain findings of fact are not
supported by clear, cogent and convincing evidence.
We disagree.
A court's termination of parental rights is a two-step
process: there is an adjudicatory stage to the proceeding under
N.C. Gen. Stat. § 7B-1109 (2005), and a dispositional stage under
N.C. Gen. Stat. § 7B-1110 (2003). In re Howell, 161 N.C. App. 650,
656, 589 S.E.2d 157, 160-61 (2003). During the adjudication stage,
the trial court determines whether clear, cogent, and convincing
evidence exists to support at least one of the grounds for
termination under N.C. Gen. Stat. § 7B-1111 (2005). In re Shepard,
162 N.C. App. 215, 220-21, 591 S.E.2d 1, 5 (2004). Where such
evidence is present, the court moves to the dispositional stage,
and it considers whether terminating parental rights would be in
the best interest of the child. Howell, 161 N.C. App. at 656, 589
S.E.2d at 161 (citation omitted).
While respondents challenge many findings on appeal, the
salient findings challenged are that:
5. The father admits a long history of
substance abuse.
. . . .
23. The father quit participating with the
Methodist Home for Children Drug Relapse and
Prevention Program in December 2003.
. . . .
28. The mother quit participating with the
Methodist Home for Children Drug Relapse and
Prevention program in February 2004. Her last
session was February 5, 2004. The mother
canceled four of the last six appointment with
Ms. Brock.
. . . .
30. Ms. Brock was available to the parents on
call 24 hours a day, 7 days a week. Ms. Brock
gave the parents several business cards when
they began, and they knew how to get in touch
with her, but did not do so after February
2004, except for speaking to Ms. Brock in
court one day.
. . . .
37. The mother also blames her relapse after
her stay at Coastal Plains not on her failure
to go to a halfway house after the 14-day
stay, but on this Court's removal of another
child from her custody in the spring of 2004.
That other child is now residing with that
child's father.
38. The juvenile was moved from the home of
the maternal aunt to foster care in March,
2004, because of concerns raised about the
care the juvenile was receiving in the aunt's
home while both parents were actively using
crack cocaine.
39. In the early part of 2004, the parents'
oldest child, [J.J.], a teenager, lived back
and forth with her aunt, her parents, and her
boyfriend while the mother and father
continued using crack cocaine.
. . . .
45. Relapse into drug use is usual and
constant.
. . . .
56. The mother's whereabouts sometime after
the first of June 2004 through mid September
2004 remain unknown.
. . . .
78. It is too soon to determine if the mother
will relapse.
. . . .
80. The father is in prison because of his
own voluntary criminal acts until the child
will be at least 8 years old.
. . . .
91. The juvenile appears to have developmental
delays and because of his condition, he
presents challenges for his caretakers that
will require patience and care. The father is
in prison for at least the next six years and
the mother is just embarking on another effort
to conquer a serious drug addiction. The
mother lacks independent housing, employment,
a job to support herself, and she is
undergoing treatment for depression. These
problems do not provide the mother a solid
foundation from which she can focus on this
juvenile's serious and important needs.
. . . .
102. The parents' drug use has caused them to
lose their home to house the juvenile, to lose
their belongings in the home, and to lose
their jobs to provide for the juvenile. In
the father's case, he has lost his freedom to
care for the juvenile.
Much of the evidence presented at the termination hearing
concerned respondents' history of using crack cocaine. Melissa
Brock, a substance abuse specialist from the Methodist Home forChildren, began working with respondents in May of 2003. Brock
testified that father ceased his participation in the treatment
program in December of 2003, when he and mother relapsed. Brock
further testified that father never attended any actual sessions.
Mother also ceased her participation in the treatment program in
February of 2004, canceling four of her six appointments, and
tested positive for narcotics soon thereafter. Mother's cessation
of the program occurred despite Brock's being “on call” for her
“24/7.”
Father testified that he and mother used crack cocaine two
to three times per week while mother was pregnant with E.J.C. In
addition, father testified that he and mother again began using
crack “off and on” seven months after E.J.C was born due to the
custody of another child that mother had with a man from a separate
relationship being granted to the child's father.
Mother testified that she used drugs during the first part of
her pregnancy, was unable to quit for three months before E.J.C.
was born, and used cocaine with father the day before E.J.C. was
born. In March 2004, mother entered an in-patient treatment
program in Rocky Mount, North Carolina. Nevertheless, mother
failed to enter a halfway house as recommended and tested positive
for drugs shortly after leaving the treatment program. Mother also
failed to appear at a required drug screening in May 2004; admitted
to using cocaine in June 2004; and tested positive for cocaine in
July 2004. Mother missed two months of visitation with E.J.C.
during the summer of 2004. Josie Allen James, a DSS foster care
social worker, testified that despite numerous attempts, she wasunable to get in touch with mother from June 2004 through September
2004.
Mother began living at Lifeline, another in-patient
treatment facility,
in September of 2004. When mother entered
Lifeline she did not have any monetary resources, a vehicle or a
job. In addition, she had sold her home and personal belongings.
While in Lifeline, mother tested negative for drugs.
Father failed to take a scheduled drug test in June 2004 and
also missed his visits with E.J.C. Father testified that
on 10
September 2004, he was incarcerated as an habitual felon on a
conviction for felony breaking and entering to a term of six to
nine years. In addition, father testified that he continued to use
drugs until 10 days before his incarceration.
Mother testified that she was 36 years old and has battled a
substance abuse problem since age 31. Father testified that he was
46 years old and first developed an addiction to drugs at age 21
and that he is in danger of relapsing at any time. Father further
testified that, unless drug users “stay with some kind of [a
substance abuse program], they're going to relapse.” Father
further testified that “no child should have to go through what we
put him through, and I know I was wrong[.]”
Due to respondents' continued use of crack cocaine, their
unsupervised visits were terminated and, in July 2004, the trial
court ordered that reunification efforts cease. E.J.C. was removed
from his aunt's home where he also lived with J.J., the eldest
daughter of mother, who had also tested positive for drugs. Jordan
Casquillo, a DSS social worker, testified that due to respondents'positive drug tests and refusals to be screened for drugs, E.J.C.
was removed from the aunt's home and placed in foster care.
We conclude that the challenged findings of fact are supported
by clear, cogent and convincing evidence. The relevant assignments
of error are overruled.
Respondents next contend that the trial court erred in
concluding that grounds existed to terminate their parental rights
because neglect did not exist at the time of the hearing. We
disagree.
According to N.C. Gen. Stat. § 7B-1111(a)(1) (2005), a court
may terminate one's parental rights where:
The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
“Neglect”, in turn, is defined as follows:
Neglected juvenile. - 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 determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
N.C. Gen. Stat. § 7B-101(15) (2005).
In a termination of parental rights proceeding based on
neglect, the trial court must determine whether neglect is present
at the time of the termination proceeding. In re Ballard, 311 N.C.
708, 716, 319 S.E.2d 227, 232 (1984). If a juvenile should ever be
removed from the parent before the date of the termination hearing
“evidence of neglect by a parent prior to losing custody . . . is
admissible in subsequent proceedings to terminate parental rights.
The trial court must also 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 (citation omitted). The probability of a repetition of neglect
must be shown by clear, cogent and convincing evidence. In re
Young, 346 N.C. 244, 250, 485 S.E.2d 612, 616 (1997).
The evidence presented showed that neglect was likely to
recur. Melissa Brock,
who holds a masters degree in substance
abuse, clinical and rehabilitation counseling, testified that there
is a “high probability” that a person commencing a drug abuse plan
would relapse in the first six months. Brock further testified
that those who have recovered are still classified as persons who
have a “substance abuse problem.” Sandra Kilby, the in-house
supervisor at Lifeline, testified that relapse is a real problem
for those addicted to drugs. Dorothy Hunt, founder and executive
director of Lifeline, testified that it was too soon to tell if
mother had recovered. Additionally, mother had already relapsed by
testing positive for crack cocaine after leaving the drug treatment
program in Rocky Mount. Father has unsuccessfully battled a cocaine addiction since
the age of 21. He ceased his participation in the Methodist Home
for Children drug treatment program in December 2003 and never
attended any sessions. Father also used drugs just 10 days before
his incarceration and had not received drug treatment as of the
date of the termination of parental rights hearing. In addition,
when asked how the court could know that he would not use drugs
anymore, father answered, “I haven't got any.”
Respondents used cocaine while mother was pregnant with
E.J.C., and used crack “off and on” just seven months after E.J.C
was born. Mother tested positive for drugs shortly after leaving
an in-patient treatment program in Rocky Mount, and subsequently
entered Lifeline, another drug treatment facility. Additionally,
father testified that he used drugs just days before entering
prison and had not received treatment as of the date of the
termination of parental rights hearing.
Melissa Brock
testified
that there is a “high probability” that a person commencing a drug
abuse plan would relapse in the first six months.
Dorothy Hunt,
founder and executive director of Lifeline testified that it was
too soon to tell if mother has recovered.
We conclude that all
this evidence, together with other evidence in the record, amply
supports the trial court's finding that it is likely that the
respondents' neglect of E.J.C. will recur. Consequently, this
assignment of error is overruled. Respondents also contend that the trial court erred in
concluding that it was in E.J.C.'s best interests to terminate
their parental rights in him. We disagree.
N.C. Gen. Stat. § 7B-1110(a) (2003) provides, in pertinent
part, that:
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. . . .
We review the trial court's conclusion that a termination of
parental rights would be in the best interest of the child on an
abuse of discretion standard. In re V.L.B., 168 N.C. App. 679,
684, 608 S.E.2d 787, 791 (citing In re Anderson, 151 N.C. App. 94,
98, 564 S.E.2d 599, 602 (2002)), disc. review denied, 359 N.C. 633,
614 S.E.2d 924 (2005). “Abuse of discretion exists when 'the
challenged actions are manifestly unsupported by reason.'” Barnes
v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004)
(quoting Blankenship v. Town and Country Ford, Inc., 155 N.C. App.
161, 165, 574 S.E.2d 132, 134 (2002)).
On this record, we conclude the trial court did not abuse its
discretion by terminating respondents' parental rights. This
assignment of error is overruled.
We next turn to father's separate arguments on appeal. He
contends that the petition to terminate his parental rights was
facially insufficient in violation of N.C. Gen. Stat. § 7B-1104(6)(2005) because it failed to provide notice as to what acts,
omissions or conditions were at issue in the case. We disagree.
N.C. Gen. Stat. § 7B-1104(6) (2005) provides, in pertinent
part, that:
The petition, or motion pursuant to G.S.
7B-1102, shall be verified by the petitioner
or movant and shall be entitled “In Re (last
name of juvenile), a minor juvenile”; and
shall set forth such of the following facts as
are known; and with respect to the facts which
are unknown the petitioner or movant shall so
state: . . . [f]acts that are sufficient to
warrant a determination that one or more of
the grounds for terminating parental rights
exist.
In In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160
(1992), this Court held that a “petitioners' bare recitation . . .
of the alleged statutory grounds for termination does not comply
with the requirement in N.C. Gen. Stat. § 7A-289.25(6) [now G.S. §
7B-1104(6)] that the petition state 'facts which are sufficient to
warrant a determination' that grounds exist to warrant
termination.” In addition, “[w]hile there is no requirement that
the factual allegations be exhaustive or extensive, they must put
a party on notice as to what acts, omissions or conditions are at
issue.” In re Hardesty, 150 N.C. App. 380, 384, 563 S.E.2d 79, 82
(2002).
Here, the petition to terminate father's parental rights
alleged that “the parents have abused controlled substances and
continue to abuse controlled substances and are unable to care for
the juvenile due to the abuse of the controlled substances.” This
was sufficient to put father on notice of the acts, omissions andconditions at issue in the case. Consequently, this assignment of
error is overruled.
Father also contends that the trial court erred in terminating
his parental rights because no separate best interest dispositional
phase was conducted. We disagree.
Although there is both an adjudicatory stage and a
dispositional stage involved in a termination of parental rights
proceeding, there is no requirement that these stages be conducted
during two separate hearings. In re White, 81 N.C. App. 82, 85,
344 S.E.2d 36, 38 (1986). Furthermore, the trial court judge in
this proceeding does not need to be insulated during the
adjudicatory stage, as respondent suggests, from evidence that is
only relevant to the dispositional stage. “[I]t is presumed, in
the absence of some affirmative indication to the contrary, that
the judge, having knowledge of the law, is able to consider the
evidence in light of the applicable legal standard and to determine
whether grounds for termination exist before proceeding to consider
evidence relevant only to the dispositional stage.” Id. This
assignment of error is overruled.
We have considered respondents' remaining assignments of error
and conclude they are without merit.
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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