IN THE MATTER OF:
P.L.C. Catawba County
A Minor Child No. 03 J 239
J. David Abernethy for Catawba County Department of Social
Services, petitioner-appellee.
Tammera S. Hill, Attorney Advocate.
Winifred H. Dillon for respondent-appellant.
MARTIN, Chief Judge.
The Catawba County Department of Social Services (DSS) filed
a juvenile petition on 28 August 2003 alleging that P.L.C. was
abused and neglected because P.L.C. tested positive for cocaine
twenty-four hours after his birth and his mother had a “substantial
history with [DSS] and with using illegal substances.” DSS took
non-secure custody of P.L.C. that same day. By order filed 3
November 2003, respondent consented to an adjudication that P.L.C.
was an abused and neglected child based upon the facts alleged in
the juvenile petition. The trial court ordered respondent to
comply with the Family Services Case Plan, which included
respondent obtaining a substance abuse assessment and being “drugfree.”
On 29 September 2004, DSS filed a petition to terminate the
parental rights of both respondent and the minor child's father
alleging that each had: (1) neglected the minor child (N.C. Gen.
Stat. § 7B-1111(a)(1)), and (2) willfully left the child in foster
care or placement outside the home for more than twelve months
without showing reasonable progress under the circumstances has
been made in correcting those conditions which led to the removal
of the child. (N.C. Gen. Stat. §7B-1111(a)(2)).
In its 18 October 2005 judgment and adjudication order, the
trial court concluded that based upon clear, cogent and convincing
evidence, sufficient grounds existed for terminating the parental
rights of respondent and the father in that P.L.C. was neglected
pursuant to N.C.G.S. § 7B-1111(a)(1), and that
respondent and the
father willfully left P.L.C. in foster care for more than 12 months
without reasonable progress under the circumstances
pursuant to
section 7B-1111(a)(2)
.
The trial court entered a disposition order
that same day and concluded that the best interests of the child
required termination of the parental rights of P.L.C.'s parents.
Respondent appeals. We affirm. The father is not a party to this
appeal.
Respondent contends the trial court's conclusion that she
neglected her son is not supported by sufficient, competent
evidence or findings of fact. We find the evidence sufficient to
support the order terminating parental rights and affirm the
decision of the trial court. A termination of parental rightsproceeding is conducted in two phases: (1) the adjudication phase
which is governed by N.C. Gen. Stat. § 7B-1109 and (2) the
disposition phase which is governed by N.C. Gen. Stat
. § 7B-1110.
See In re Brim, 139 N.C. App. 733, 738, 535 S.E.2d 367, 370 (2000).
During the adjudication stage, petitioner has the burden of proof
by clear, cogent, and convincing evidence that one or more of the
statutory grounds set forth in N.C. Gen. Stat. § 7B-1111 for
termination exists. See N.C. Gen. Stat. § 7B-1109(e)-(f) (2005).
The standard of appellate review is 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 Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
If petitioner meets its burden of proof that grounds for
termination exist, the trial court then moves to the disposition
phase and determines whether termination is in the juvenile's best
interest. See N.C. Gen. Stat. § 7B-1110(a) (2005). The trial
court has discretion, if it finds by clear, cogent, and convincing
evidence that at least one of the statutory grounds for termination
exists, to terminate parental rights upon a finding that it would
be in the best interests of the child. In re Blackburn, 142 N.C.
App. 607, 613, 543 S.E.2d 906, 910 (2001). The trial court's
decision to terminate parental rights is reviewed under an abuse of
discretion standard. In re Brim , 139 N.C. App. at 744, 535 S.E.2d
at 373.
Abuse of discretion occurs “when the trial court's ruling
is so arbitrary that it could not have been the result of areasoned decision.” In re J.B., 172 N.C. App. 747, 751, 616 S.E.2d
385, 387, (citation omitted), aff'd, 360 N.C. 165, 622 S.E.2d 495
(2005).
In this case, the trial court terminated respondent's parental
rights under section 7B-1111(a)(1) based upon a finding that the
minor child was a “neglected juvenile”
within the meaning of N.C.
Gen. Stat. § 7B-101. Section 7B-101(15) defines “neglected
juvenile” 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 or
adoption in violation of law. . . .
N.C. Gen. Stat. § 7B-101(15) (2005). “To prove neglect in a
termination case, there must be clear and convincing evidence:”
that (1) the juvenile is neglected within the meaning of N.C. Gen.
Stat. § 7B-101(15), and (2) “the juvenile has sustained 'some
physical, mental, or emotional impairment . . . or [there is] a
substantial risk of such impairment as a consequence'”
of the
neglect. In re Reyes, 136 N.C. App. 812, 814-15, 526 S.E.2d 499,
501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436
S.E.2d 898, 901-02 (1993)).
“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). “Termination of parental rights forneglect may not be based solely on past conditions which no longer
exist.” Id. “[A] prior adjudication of neglect may be admitted
and considered by the trial court in ruling upon a later petition
to terminate parental rights on the ground of neglect.” In re
Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). If the
child has been removed from the parents' custody before the
termination hearing, and the petitioner presents evidence of prior
neglect, including an adjudication of such neglect, then “[t]he
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. Thus,
where
there is no evidence of neglect at the time of
the termination proceeding . . . parental
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 or] her parents.
In re Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501.
In support of its conclusion that respondent's parental rights
should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(1),
the trial court entered the following pertinent findings of fact:
8. The initial Petition was filed on August
28, 2003 and the minor child came into
nonsecure custody on that date, and has
remained in nonsecure custody ever since that
time.
9. After several continuations of nonsecure
custody, the minor child was adjudicated
abused and neglected on October 7, 2003. The
mother was present and consented to the
adjudication. . . .
10. The minor child was born . . . at
Carolinas Medical Center-University Hospital,
Charlotte, North Carolina. Upon admission to
the hospital, the Mother admitted to using
heroin the night before (possibly on the
morning of) birth. The Mother was drug
screened while in the hospital and tested
positive for opiates, cocaine, and marijuana.
The minor child tested positive for cocaine
twenty-four (24) hours after birth. The minor
child was experiencing withdrawals and was
being administered Phenobarbital.
11. As of the date of adjudication, the
Mother had a substantial history with
Departments of Social Services and with using
illegal substances.
12. The minor child is the Mother's fourth
child. The Mother does not have custody of
any of her other children. . . . The Mother's
third child was removed by Catawba County
Department of Social Services in 1999 due to
the Mother's drug use during pregnancy and the
minor child testing positive for cocaine
twenty-four (24) hours after birth. The
third-born child has been adopted by paternal
grandparents in Gaston County, North Carolina.
. . .
14. In the initial order of disposition, the
court ordered that the parents should comply
with all aspects of the Family Services Case
Plan. Specifically, the mother was ordered to
comply with the requirements of her substance
abuse assessment. She was to obtain a
substance abuse assessment and a psychological
evaluation. She was to obtain appropriate
housing, get a job when one was available and
pay child support. She was ordered to be drug
free and to comply with frequent random drug
screens at the request of the Department of
Social Services and the Guardian ad Litem.
15. The mother did enter into a case plan on
September 25, 2003, and did get a substance
abuse assessment, which was a part of her case
plan.
16. The mother enrolled in the McLeod
Methadone clinic in Hickory. She wasterminate[d] from the clinic for not
attending. During her treatment at McLeod,
she was using illegal drugs; specifically
heroin. After that she sought treatment at
another McLeod program in another county, but
there is no verification of her completing it.
17. The mother was asked to do random drug
screens. She did submit to a drug screen on
only one occasion, and never did so
thereafter.
18. The mother was to live with her mother;
however, she did not comply with this
provision as her mother frequently did not
know where the mother was or where she was
living.
19. The case plan called for visits at DSS.
From September 29 to December 1, 2003, the
mother visited five times, and missed three or
four visits. Her last visit was on December
1, 2003. She has not seen the minor child
since the court date on March 23, 2004. At
that time the court authorized two additional
visits. The mother left court on that
occasion and did not contact the DSS. . .
. . .
21. The mother has a very long history of
substance use and abuse. She used heroin on a
daily basis since her third child was removed
in the year 2000. She also used cocaine and
marijuana on a regular basis.
22. The mother has been incarcerated several
times since the child was born. The mother
currently is in the Department of Corrections.
She is serving a sentence for felonious
larceny and probation violation. In August of
2004 she agreed to her sentence being
activated. She has an expected release date
of February of 2006.
23. Since August of 2004 the mother has made
efforts to maintain contact, calling the DSS
and the foster parents and sending letters.
She has taken a parenting class. In March of
2005 she began substance abuse treatment in
the Department of Corrections. She obtained
her GED and is taking cosmetology classes froma community college. After release she will
be required to be on six months of intensive
probation and two years of regular probation.
. . .
33. Each [] parent[] has neglected the minor
child and willfully left the minor child in
foster care or placement outside the home 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 minor child.
34. The mother has abused and neglected the
minor child; she abused the minor child when
she created a substantial risk of serious
physical injury to the minor child by other
than accidental means when she used heroin,
cocaine, opiates and marijuana before the
birth of the minor child, causing the minor
child to have cocaine in his system at birth
and to experience medical problems. She has
not showed [sic] the ability to remain
substance abuse-free for any significant
period of time or to maintain employment while
not incarcerated.
. . .
36. That based on the evidence presented the
court finds that the facts alleged in the
motion are true and correct by clear, cogent
and convincing evidence, and that these facts
constitute neglect by each parent. The
evidence presented also supports a strong
likelihood that neglect would continue if the
child were returned to the home of either of
the parents at this time or any time in the
foreseeable future.
Respondent has brought forward on appeal assignments of error
regarding only findings of fact 33, 34 and 36. N.C. R. App. P.
28(b)(6). Accordingly, the remaining findings are presumed to be
correct and supported by competent evidence. In re Moore, 306 N.C.
394, 404, 293 S.E.2d 127, 133 (1982). In addition, a review of therecord and transcript shows that each of the trial court's findings
is based upon competent evidence, including orders entered in the
case and testimony from DSS social worker Marcie Bland and
respondent herself. The prior adjudication established the
existence of prior neglect. Respondent's choice to continue using
drugs, her failure to obtain appropriate housing, and her failure
to participate in drug treatment as ordered by the court supported
the court's determination that there was a probability that neglect
would be repeated in the future. The trial court thus properly
considered both evidence of past neglect by respondent, as well as
evidence of conditions since that time showing a likelihood of
neglect in the future.
Although respondent points to evidence that she has made
“dramatic progress in addressing her drug dependency while in
prison[,]” the trial court was free to conclude, as it did, that
respondent's pattern of drug abuse suggested a probability that the
drug abuse would recur. We, therefore, hold that the trial court's
findings of fact were based on clear, cogent, and convincing
evidence. We further hold that these findings support the court's
conclusion that grounds justifying termination existed under N.C.
Gen. Stat. § 7B-1111 (a)(1). See, e.g., In re Leftwich, 135 N.C.
App. 67, 72, 518 S.E.2d 799, 803 (1999) (trial court could properly
find neglect when respondent mother had not made meaningful
progress in improving her lifestyle, including continuing to abuse
alcohol). As only one ground is necessary to support the
termination, we need not address whether evidence existed tosupport termination based on N.C. Gen. Stat. § 7B-1111(a)(2).
Respondent also contends the trial court abused its discretion
in concluding that the best interest of the child would be served
by terminating respondent's rights and that terminating the rights
of the mother would not result in an unnecessary severance of the
relationship between
child and the mother. We disagree.
In the disposition order, the trial court incorporated by
reference its findings of fact in the adjudication order and
additionally found:
9. The minor child is doing well in his
foster/adopt home, which is the only home he
has ever known. He is developmentally on
track. His foster family has the ability and
desire to take care of the minor child and to
meet his needs.
10. Despite very recent attempts by each of
the parents to address his or her very serious
substance abuse issues, based on their
histories of substance abuse, criminal
histories, and instability in lifestyle, it is
not reasonable to believe that either of the
parents will be able to put his or her life in
order and maintain a suitable home for any
significant period of time, within a
reasonable amount of time, so as to be able to
provide appropriate care for the minor child.
The child is now twenty-five months old and
neither parent ha[s] been able to care for the
minor child since birth.
The trial court found clear indications that respondent is either
unwilling or incapable of assuming the responsibilities associated
with the proper care of her child. Therefore, the trial court
concluded the best interest of the minor child would be promoted by
terminating the respondent's parental rights. Here, the trial
court set out detailed findings based on substantial and competentevidence which support the conclusion that it is in the best
interest of the child to terminate respondent's parental rights.
Based on the record, we cannot say that the trial court abused its
discretion in finding and concluding that it was in the minor
child's best interest to terminate respondent's parental rights.
Therefore, this assignment of error is overruled.
Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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