An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 16 May 2006
IN THE MATTER OF: Alamance County
S.C.S. No. 03 J 58
Appeal by respondent-parents from judgment entered 7 March
2005 by Judge G. Wayne Abernathy in Alamance County District Court.
Heard in the Court of Appeals 20 April 2006.
Jamie L. Hamlett, for petitioner-appellee Alamance County
Department of Social Services.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by J. Mitchell Armbruster, for Guardian Ad Litem.
Susan J. Hall for respondent-appellant mother.
Winifred H. Dillon for respondent-appellant father.
Respondent-mother and respondent-father separately appeal the
district court's order terminating their parental rights to their
child S.C.S. For the reasons discussed herein, we affirm.
Respondents are the natural parents of S.C.S., born September
2001. Respondents are also the parents of two older children who
live with their maternal grandfather. While S.C.S was in the
custody of DSS, respondent-mother gave birth to a forth child.
Only the respondents' parental rights to S.C.S. are at issue in
this appeal. It appears the Alamance Department of Social Services (DSS)
became involved with the family in April 2002 after a report that
respondent-father had assaulted respondent-mother and hit S.C.S.,
then six months old, in the back of the head. Respondent-mother
took the child to the hospital, which reported the incident to DSS.
When DSS responded to the report, respondent-mother said she and
respondent-father had gotten into an argument about her seeing
another man and respondent-father hit the minor child while trying
to hit her. She told DSS respondent-father had been drinking and
she had been smoking marijuana that day. Following the incident,
respondent-mother obtained a domestic violence protection order
against respondent-father for one year. The order specifically
prohibited respondent-father from having any contact with S.C.S.
Respondent-mother violated the protective order when she got
respondent-father out of jail and allowed him to move into her home
where S.C.S. was also living. Despite respondent-father's abusive
behavior and alcohol abuse, she carried on a relationship with him
and allowed him to live in her home with S.C.S.
During S.C.S.'s life, respondent-mother received assistance,
including Medicaid, AFDC, and Graham Housing. Despite the
assistance, respondent-mother was unable to provide for the child's
basic needs. In addition, respondent-mother allowed numerous
people to live in her home with S.C.S. and allowed drugs to be used
there, including crack. Respondent-mother often left S.C.S. with
her great-aunt, Ms. Dorlis Lee, for up to three weeks at a time
without adequate supplies and without the aunt knowing respondent-mother's whereabouts. Ms. Lee testified she had cared for the
child for ten of the eighteen months of his life. In addition,
respondent-mother would also leave S.C.S. in the sole care of her
grandmother, Pearl Lee, who was a registered sex offender. (R.
95). In February 2003, respondent-mother dropped S.C.S. off at
Dorlis Lee's home. While S.C.S. was with Ms. Lee, the police
arrested respondent-mother on a charge of possession of stolen
goods, which arose from events that occurred in 1997. While
respondent-mother was incarcerated, S.C.S was placed in the non-
secure custody of DSS. On 3 March 2003, DSS filed a petition
alleging the minor child to be a neglected juvenile within the
meaning of N.C. Gen. Stat. § 7B-101(15). On 10 March 2003,
respondent-mother was placed on supervised probation for possession
of stolen goods. On 12 June 2003, following an adjudicatory
hearing, the trial court found S.C.S. to be neglected based upon
the instability of respondent-mother's living arrangements, her
failure to provide appropriate care for the child, domestic
violence involving respondent-father, and continuous drug and
alcohol abuse by both parents. Immediately thereafter, the trial
court held a disposition hearing and awarded DSS custody of the
As part of the case plan, the trial court required respondent-
mother to have consistent visitation, obtain and maintain suitable
housing, comply with the conditions of her probation, and provide
for the minor child's needs. In addition, the trial court ordered
respondent-mother receive alcohol and drug treatment, complete theTASC Program, and be routinely tested for drugs. The trial court
periodically held review hearings and permanency planning hearings.
In December 2003, respondent-mother moved in with her father.
During this period, respondent-mother was allowed weekly
unsupervised visitation with S.C.S., including weekend visits.
However, in March 2004, respondent-mother's father told her she
could no longer stay in his home after he learned she had pawned
his tools without permission. Thereafter, DSS was unable to locate
respondent-mother and she did not have visitation with S.C.S. from
19 April 2004 until 2 June 2004. In April 2004, respondent-mother
was found to have violated the conditions of her probation by
testing positive for marijuana while pregnant with her forth child,
failing to report to her probation officer as scheduled, and being
in arrears on her costs and supervision fees. The trial court
sentenced respondent-mother to forty-five days confinement. On 16
October 2004 respondent-mother attempted to have the domestic
violence order she obtained against respondent-father dismissed.
As late as June 2004, respondent-mother stated she was still
contemplating a reconciliation with respondent-father despite his
history of domestic violence and alcohol abuse.
During the time DSS had custody of the minor child,
respondent-mother lived at various homes. At one time, respondent-
mother was living with an individual whose children had been
removed from her care because of inappropriate parenting.
Respondent-mother's visitation was suspended while she lived with
this individual. In late June or early July 2004, respondent-mother moved in with her boyfriend of only a week or two, Tim
Williams, who lived with his grandmother, Inez Smith. Ms. Smith
paid the bills. Respondent-mother did not pay rent or contribute
towards the bills. Respondent-mother and Ms. Smith frequently
argued, including when respondent-mother had S.C.S. During the
time DSS had custody, respondent-mother failed to maintain
consistent employment despite being able to work. In addition,
respondent-mother missed numerous visitations without excuse, and
when she did have visitation, she failed to provide adequate
supplies for the child during those visits.
Respondent-father was incarcerated at the time the petition to
terminate parental rights was filed. His expected release date is
26 June 2006. Respondent-father was not incarcerated at the time
DSS assumed custody of S.C.S., but did not make contact with the
social worker because he was running from the law. DSS first met
with respondent-father in July 2003 at the county jail.
Respondent-father did not keep in contact with DSS during his
incarceration, even though he had the social worker's contact
information. At a hearing involving the minor child in December
2003, he asked the court not to be brought back from prison for
future hearings. (R. 100). While incarcerated, respondent-father
has not written to S.C.S, inquired about the child's welfare, sent
cards or gifts, or made any other effort to contact the child.
Respondent-father asked to be returned to prison after the lunch
recess of the first day of the TPR hearings. On 31 August 2004, DSS filed a petition to terminate
respondents' parental rights to S.C.S. The petition alleged as
grounds for termination: (1) respondents neglected the minor child
(N.C. Gen. Stat. § 7B-1111(a)(1)); and (2) respondents willfully
left the juvenile in foster care for more than twelve months
without demonstrating they had made reasonable progress to correct
the conditions which led to the child's removal (N.C. Gen. Stat. §
7B-1111(a)(2)); (3) respondents willfully failed to pay a
reasonable portion of the cost of care for the minor child while he
was in DSS's custody (N.C. Gen. Stat. § 7B-1111(a)(3)); and (4)
respondent-father had not, prior to the filing of the motion to
terminate parental rights, established paternity to or legitimated
the juvenile (N.C. Gen. Stat. § 7B-1111(a)(5)). The trial court
terminated respondents' parental rights, finding as a basis the
grounds listed in N.C. Gen. Stat. § 7B-1111(a)(1) and (2) as to
each respondent. The trial court further determined it was in
S.C.S.'s best interests that both respondent-mother and respondent-
father's parental rights be terminated. Respondents appeal.
Respondent-mother and father made separate assignments of
error. We address each in turn.
Respondent-mother's Assignments of Error
Respondent-mother assigned error to each of the trial court's
conclusions of law specifying the grounds for termination, certain
findings of fact, and to the court's decision that termination of
her parental rights was in the child's best interests. On appeal, our standard of review for the termination of
parental rights is whether the court's findings of fact are based
upon 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) (citations and internal quotation
marks omitted). If the findings of fact support a conclusion of
law that grounds exist under N.C. Gen. Stat. § 7B-1111 to terminate
parental rights, we must affirm the order. In re Oghenekevebe, 123
N.C. App. 434, 436, 473 S.E.2d 393, 395-96 (1996).
In order to establish neglect in a termination case, there
must be clear, cogent, and convincing evidence that at the time of
the termination hearing: (1) the juvenile is neglected within the
meaning of N.C. Gen. Stat. § 7B-101(15), and (2) as a consequence
of the neglect, the juvenile has sustained some physical, mental,
or emotional impairment. . . or [there is] a substantial risk of
such impairment. In re Reyes, 136 N.C. App. 812, 814-15, 526
S.E.2d 499, 501 (2000) (citations and internal quotation marks
omitted). A neglected juvenile is:
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) (2006). 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). The trialcourt may admit and consider a prior adjudication of neglect in
ruling on a petition to terminate parental rights based upon
neglect. In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231
(1984). However, where the child has been removed from the
parent's custody prior to the termination hearing, as is the case
here, the trial court may still terminate parental rights 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 [their] parents.
Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501.
In the present case, the trial court found as fact that S.C.S.
had previously been adjudicated neglected. The trial court also
made additional findings of fact to support its conclusion that
there existed a likelihood of repetition of neglect should the
child be returned his parents. These findings include the
19. On September 17, 2003, the Respondent
Mother received her second ex parte domestic
violence protective order (03 CVD 2047)
against Respondent Father. The Respondent
Father assaulted the Respondent Mother while
she was pregnant with [P.C.S.]. On September
17, 2003, the court entered a domestic
violence protective order.
21. In January of 2004, the Respondent Mother
gave birth to her fourth child, [P.C.S.].
24. When the Respondent Mother left her
father's home, [DSS] initially did not know
where the Respondent Mother was staying and
her visitation was disrupted.
25. The Respondent Mother took her
approximately three-month-old child to Dorlis
Lee and Pearl Lee's home and left the childfor one week because she need a break. Dorlis
Lee had to contact Mr. Satterfield
[respondent-mother's father] to obtain
supplies for the child.
26. The respondent Mother did not have
visitation with S.C.S. from April 19, 2004
until June 2, 2004.
33. On October 16, 2004, the Respondent
Mother attempted to get the domestic violence
order numbered 03 CVD 2047 dismissed as to
34. At a hearing in June of 2004, the
Respondent Mother was not certain if she would
or would not reconcile with the Respondent
Father despite the history of domestic
violence and alcohol abuse.
35. The Respondent Mother did not visit with
the juvenile from June 2, 2004 until July 26,
2004. Social Worker Hamlet is not sure why
the Respondent Mother did not visit.
37. The Respondent Mother has demonstrated
issues with controlling her own anger,
including kicking out a window of a car while
she was angry with her boyfriend, Timothy
Williams. The Respondent Mother has thrown
perfectly good bacon away, hitting Mr.
Williams with it, because she was angry.
41. The Respondent Mother and Ms. Inez Smith
[Mr. Williams' grandmother, with whom
Respondent Mother was living] argue on a
regular basis and Ms. Inez Smith often
threatens to throw the Respondent Mother out
of her home. On two occasions, the Respondent
Mother has left the home to stay in a hotel.
42. The Respondent Mother and Ms. Inez Smith
sometimes argue during times when the
Respondent Mother is having visitation with
the juvenile. This has a negative impact upon
53. The Respondent Mother has not maintained
consistent employment while working with
60. The Respondent Mother has missed two
consecutive weeks of visitations on four
61. The Respondent Mother has been unable to
consistently provide supplies for the juvenile
during visitations. The daycare, social
worker and others have helped provide supplies
for the Respondent Mother during her
63. The Respondent Mother struggles to
maintain a minimum level of care for one
child, despite numerous supports and services.
This is troubling considering she wants
responsibility for the care of two young
Respondent-mother did not except to any of these findings of fact.
Findings of fact unchallenged on appeal are deemed supported by
competent evidence and are binding upon this Court. In re
Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). These
undisputed findings were sufficient to support the trial court's
conclusion that the child is neglected, as well as the court's
conclusion that sufficient grounds existed to terminate respondent-
mother's parental rights pursuant to N.C. Gen. Stat. §
7B-1111(a)(1). Having so concluded, we need not address
respondent-mother's argument regarding termination of her parental
rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). In re J.A.A.,
___ N.C. App. ___, ___, 623 S.E.2d 45, 50 (2005) (noting a finding
of only one statutory ground is sufficient to support termination
of parental rights).
In respondent-mother's next argument, she contends the trial
court abused its discretion by concluding as a matter of law thatit was in the minor child's best interest to terminate her parental
rights. We disagree.
We review the trial court's decision to terminate a parent's
rights under an abuse of discretion standard. In re Nesbitt, 147
N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). An abuse of
discretion occurs where the trial court's decision is so arbitrary
that it could not have been the result of a reasoned decision. In
re J.B., ___ N.C. App. ___, ___, 616 S.E.2d 385, 387, aff'd, 360
N.C. 165, 622 S.E.2d 495 (2006).
In determining whether termination is in the best interests of
the minor child, the court considers: (1) the age of the juvenile;
(2) the likelihood the juvenile will be adopted; (3) whether
terminating parental rights will help accomplish the permanent plan
for the child; (4) the bond between the child and the parent; (5)
the quality of the relationship between the child and the proposed
adoptive parent, as well as (6) any other relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2005).
In the instant case, the court considered the minor child's
age of three years, the fact the child had been placed in foster
care for almost two years, the child's positive adjustment to his
placement, the foster family's commitment to the child, as well as
their desire to adopt him. Those findings combined with the
court's findings concerning respondent-mother's failure to: comply
with her case plan, secure stable housing and employment, complete
the court ordered substance abuse treatment, and visit with the
child on a consistent basis, coupled with her inability toconsistently provide supplies for the child during visitations and
her continuing to leaving her youngest child with a registered sex
offender, support the trial court's conclusion that it was in the
child's best interests to terminate respondent-mother's parental
rights. Thus, the trial court did not abuse its discretion. This
argument is without merit.
Respondent-father's Assignments of Error
Respondent-father contends the trial court's finding of fact
that he had made little or no effort to reunite with the juvenile
or overcome the conditions which led to the juveniles removal from
the home, was unsupported by the evidence, and as such, the trial
court's conclusion that grounds exist pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(2) to terminate his parental rights, was unsupported
by the findings.
The trial court can terminate a respondent's parental rights
upon the finding of one of the grounds listed in N.C. Gen. Stat. §
, ___ N.C. App. at ___, 623 S.E.2d at 50. In
the instant case, the trial court cited two grounds for terminating
respondent-father's parental rights. While respondent-father
assigned as error both grounds in the record on appeal, he only
argued as error one of those grounds in his brief. Assignments of
error not set out in the appellant's brief, or in support of which
no reason or argument is stated or authority cited, will be taken
as abandoned. N.C. R. App. P. 28(b)(6). Since respondent-father
does not contest the other ground, it is binding on appeal. As
only one ground is necessary to support the termination, we neednot address whether evidence existed to support termination based
on N.C. Gen. Stat. § 7B-1111(a)(2). J.A.A.
, ___ N.C. App. at ___,
623 S.E.2d at 50. Nor did respondent-father assign as error the
trial court's decision that terminating his parental rights was in
the child's best interests. This argument is without merit.
For the reasons discussed herein, we affirm the order of the
trial court terminating respondents' parental rights to S.C.S.
Judge MCCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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