Appeal by respondents from order entered 28 July 2005 by Judge
Resson Faircloth in Johnston County District Court. Heard in the
Court of Appeals 23 August 2006.
Jennifer S. O'Connor for petitioner-appellee.
Richard Croutharmel for respondent-appellant mother.
Richard E. Jester for respondent-appellant father.
Elizabeth Myrick Boone for guardian ad litem.
Respondents father and mother appeal from an order of the
district court terminating their parental rights with respect to
their minor child, G.D.C. On appeal, both respondents challenge
the trial court's conclusions that grounds existed under N.C. Gen.
Stat. § 7B-1111 (2005) to terminate their parental rights. We hold
that the trial court's findings of fact fully support its
conclusion that the parents neglected the child under N.C. Gen.
Stat. § 7B-1111(a)(1) and that the court did not abuse its
discretion in deciding that termination of parental rights was in
the best interests of the child. With respect to respondent
father's contention that the trial court should have dismissed thetermination petition filed by Johnston County Department of Social
Services ("DSS") because DSS improperly obtained some of his
medical records, the father has cited to no authority warranting
such a sanction, and, in any event, we cannot conclude that the
court abused its discretion in determining that exclusion of the
records from evidence was a sufficient sanction. Accordingly, we
affirm the trial court's order.
G.D.C. was born in November 2002 to respondents, who are
unmarried half-siblings that share the same biological father. On
14 August 2003, DSS received a referral alleging that respondent
father had become intoxicated while supervising G.D.C. and had
physically attacked both G.D.C. and respondent mother. As a result
of this incident, respondent father was convicted of assault on a
female and assault on a child under 12, his probation was revoked,
and he was incarcerated. The mother originally informed DSS and
the court that the father had grabbed the child by the throat, but
at the time of the termination hearing, she denied that he had done
Although DSS substantiated neglect, the child was not removed
from the custody of the mother, and DSS instead began providing
case planning and case management services to the family. In early
October 2003, DSS developed a case plan for respondent mother
pursuant to which she agreed to obtain treatment for domestic
violence and mental health issues because of her being diagnosed
with bipolar disorder and post traumatic stress disorder. Themother further agreed not to allow the child's father in the
presence of the child until he had addressed his substance abuse,
domestic violence, and mental health issues. She agreed to contact
law enforcement if respondent father attempted to see the minor
Respondent father entered into a Safety Assessment with DSS,
which similarly provided that the father agreed not to be in the
presence of the child until he addressed his substance abuse,
mental health, and domestic violence issues. During the initial
involvement of DSS, respondent father also acknowledged to DSS that
he had a 13-year substance abuse problem, including the use of
In late October 2003, a DSS social worker observed respondents
together in a car with their child in the back seat. When the
social worker tried to talk to the parents, the mother sped away.
Respondents were ultimately stopped by the Johnston County
Sheriff's Office after running a red light. The mother
acknowledged that she knew that she was not supposed to allow
respondent father to be in the presence of the child and that she
drove off to avoid the social worker. As a result of this
incident, the child was removed from respondents' custody on 31
October 2003 pursuant to a non-secure custody order. Neither
respondent attended the non-secure custody hearing.
By the date of the subsequent adjudication and disposition
hearings, respondent father was incarcerated. For the disposition
hearing, DSS had difficulty locating respondent mother, who, atthat time, was using controlled substances and had been arrested
for a probation violation.
On 22 January 2004, the trial court entered an order
adjudicating G.D.C. to be neglected and dependent. On the same
date, the court entered a dispositional order requiring that the
parents cooperate with DSS and comply with the case plan, that
respondent mother obtain mental health counseling and follow
through with all recommendations and referrals by the mental health
center, that respondent mother attend domestic violence counseling
and parenting classes, and that respondent father attend parenting,
domestic violence, and anger management classes if available
through the correctional system.
Because respondent father was not incarcerated in Johnston
County, DSS maintained regular contact with the father's case
worker at the prison facility to monitor the father's progress. On
22 April 2004, the court ordered that DSS cease reunification
efforts with respondent father. While in prison, the father did
not take advantage of domestic violence counseling, attended only
seven hours of substance abuse treatment after February 2004, and
had unresolved mental health issues. He did complete parenting
classes and a cognitive behavior class. The father had a release
date of November 2004. He was informed by a DSS social worker that
he could call her collect about his daughter and was provided with
the address so that he could write the social worker.
Respondent mother did not have contact with DSS from the end
of December 2003 until February 2004 and missed some of hervisitation with the child. She agreed, however, to enter a program
to address her substance abuse issues, was attending the Johnston
County Mental Health Center regarding her mental health issues, and
had been referred to a parenting program. At the time of a
permanency planning hearing on 14 April 2004, the mother had
completed the substance abuse program and parenting classes, and
she was residing in a half-way house in Wake County where she had
arranged to begin further substance abuse treatment.
In April 2004, however, respondent mother left the half-way
house without notifying DSS after she had violated the house's
visitation rules. The mother had stopped receiving substance abuse
treatment, was not submitting to random drug screenings as she had
agreed, and had stopped receiving mental health therapy and
medication. From April 2004 until June 2004, she missed some of
her visitation and did not maintain regular contact with DSS. She
was dependent upon her new boyfriend for housing and support. She
stopped all contact with DSS after the agency was relieved of
further efforts toward reunification in July 2004.
On 12 October 2004, DSS filed a petition seeking to terminate
respondents' parental rights. Respondent mother contacted a DSS
social worker by telephone in November 2004 and was advised by the
social worker as to what she needed to do to address the issues
that led to her child's removal from her custody. Respondent
mother did not contact the DSS social worker any further after that
telephone call. She gave birth to a second child in January 2005,
at which time she tested positive for marijuana. She admitted tosmoking marijuana during her pregnancy and admitted to a history of
Respondent father was released from prison in November 2004
and went to the Office of the Clerk of Superior Court to request
appointed counsel for the termination of parental rights hearing.
From the date of his release through the date of the termination
hearing, he did not contact DSS. He made no inquiries about his
daughter or what he needed to do to regain custody of her. In
addition, following his release, he did not provide any gifts,
cards, or provisions for the child and did not attend any hearings.
The termination hearing was held on 4 May and 28 June 2005.
The trial court concluded that grounds for termination existed
under N.C. Gen. Stat. § 7B-1111(a)(1), as both parents had
neglected the child, and under N.C. Gen. Stat. § 7B-1111(a)(6), as
both parents were incapable of providing proper care and
supervision of the child and there was a reasonable probability
that this incapability would continue for the foreseeable future.
With respect to respondent mother, the court also concluded that
she had willfully failed to pay a reasonable portion of the cost of
the care of the child under N.C. Gen. Stat. § 7B-1111(a)(3). The
court then determined that it was in the best interests of the
child that respondents' parental rights be terminated. Both
respondents timely appealed to this Court.
A termination of parental rights proceeding is conducted in
two phases: (1) an adjudication phase that is governed by N.C. Gen.Stat. § 7B-1109 (2005) and (2) a disposition phase that is governed
by N.C. Gen. Stat. § 7B-1110 (2005). In re Blackburn
, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication
stage, petitioner has the burden of proving by clear, cogent, and
convincing evidence that one or more of the statutory grounds for
termination set forth in N.C. Gen. Stat. § 7B-1111 exist. 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
, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal
dismissed and disc. review denied
, 353 N.C. 374, 547 S.E.2d 9
If petitioner meets its burden of proving that grounds for
termination exist, the trial court moves to the disposition phase
and must consider whether termination is in the best interests of
the child. N.C. Gen. Stat. § 7B-1110(a). The trial court has
discretion to terminate parental rights upon a finding that it
would be in the best interests of the child to do so. Blackburn
142 N.C. App. at 613, 543 S.E.2d at 910. The trial court's
decision to terminate parental rights is reviewed under an abuse of
discretion standard. In re Nesbitt
, 147 N.C. App. 349, 352, 555
S.E.2d 659, 662 (2001).
We first address respondent father's argument that because DSS
obtained his medical records from the Johnston County Mental Health
Department in violation of federal law, the trial court should havedismissed the petition to terminate his parental rights. Even
, that respondent father's substance abuse
records were obtained in violation of federal law, he has not
established that he was entitled to have the termination petition
On 15 August 2003, DSS sent the Johnston County Mental Health
Department a letter, pursuant to N.C. Gen. Stat. § 7B-302(e)
(2005), requesting "all information you have regarding [respondent
father], including but not limited to the any [sic]
psychological/psychiatric evaluations, admission assessments,
contact notes, treatment goal plans, or any other pertinent
information regarding the medical/social history." In response,
the mental health department sent records pertaining to the mental
health status and substance abuse history of both respondents. The
respondents had not consented to the disclosure of their medical
Federal law provides that "[r]ecords of the identity,
diagnosis, prognosis, or treatment of any patient which are
maintained in connection with the performance of any program or
activity relating to substance abuse . . . treatment,
rehabilitation, or research, which is conducted, regulated, or
directly or indirectly assisted by any department or agency of the
United States shall . . . be confidential . . . ." 42 U.S.C. §
290dd-2(a) (2005). Aside from certain exceptions not applicable
here, consent of the patient is required to obtain disclosure. 42
U.S.C. § 290dd-2(b)(1) ("The content of any record referred to insubsection (a) may be disclosed in accordance with the prior
written consent of the patient with respect to whom such record is
maintained . . . ."). Regulations further provide that "no State
law may either authorize or compel any disclosure prohibited by
[federal substance abuse] regulations." 42 C.F.R. § 2.20 (2005).
Before the termination hearing, respondents filed motions
contending that the substance abuse records sent by the Johnston
County Mental Health Department in response to DSS' request were
released in violation of federal privacy laws, and, therefore,
respondents were entitled to either dismissal of the termination
petition or suppression of the evidence obtained from the records.
After hearing oral argument on the matter, the trial court
concluded that the federal requirements for obtaining respondents'
substance abuse records had not been met, and the court, therefore,
suppressed any reference to the records during trial. The trial
court declined, however, to dismiss the petition.
To date, our case law has recognized only two situations in
which termination of parental rights petitions may be involuntarily
dismissed prior to a determination on the merits: (1) when the
trial court lacks subject matter jurisdiction over the controversy;
or (2) when the petition fails to state a statutorily recognized
ground for termination. See, e.g.
, In re T.B.
, ___ N.C. App. ___,
___, 629 S.E.2d 895, 897-98 (2006) (concluding that, when DSS
failed to attach a copy of an order awarding legal custody of the
children to DSS, the trial court should have granted respondents'
motion to dismiss the termination petition for lack of subjectmatter jurisdiction); In re Hardesty
, 150 N.C. App. 380, 383, 563
S.E.2d 79, 82 (2002) (noting termination petitions may be dismissed
under N.C.R. Civ. P. 12(b)(6) for failure to allege statutory
grounds for termination). Respondent father has argued neither of
these grounds for dismissal on appeal and has not pointed to any
other authority justifying dismissal of a termination of parental
rights petition under these circumstances.
The federal statute upon which respondent father relies
provides an explicit remedy that has nothing to do with dismissal.
Rather, with respect to penalties, the statute provides only:
"Penalties. Any person who violates any provision of this section
or any regulation issued pursuant to this section shall be fined
accordance with title 18, United States Code." 42 U.S.C. §
290dd-2(f) (emphasis added). Respondent father's remedy lies _ if
at all _ with the imposition of a penalty against Johnston County
Mental Health Department.
Respondent father argues alternatively that the trial court
should not have limited its ruling to suppression of any reference
to the disputed records at trial, but rather should have also
suppressed all of respondent father's "subsequent interviews and
testimony," arguing that the court should adopt a "fruit of the
poisonous tree" concept in these cases. See State v. Pope
N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992) ("When evidence is
obtained as the result of illegal police conduct, not only should
that evidence be suppressed, but all evidence that is the 'fruit'
of that unlawful conduct should be suppressed."). As respondentfather recognizes, however, this is not a criminal case, and he has
not cited any authority supporting incorporation of this doctrine
into termination of parental rights cases.
We note further that DSS received ample information regarding
respondent father's substance abuse from proper sources. The
original referral from DSS alleged that respondent had become
intoxicated and assaulted respondent mother and G.D.C. Moreover,
early in DSS' involvement with this family, respondent mother
informed DSS that respondent father "had a history of drinking" and
had previously used marijuana. Indeed, at the termination of
parental rights hearing, respondent father's own trial counsel
brought out that respondent father himself had testified at prior
hearings that he was involved in numerous substance abuse treatment
programs. Consequently, there was ample competent evidence in the
record, even apart from information derived from improperly
obtained records, supporting the court's findings with respect to
respondent father's history of substance abuse, and we can find no
error in the trial court's rulings with respect to those records.
This assignment of error is overruled.
We next turn to respondents' arguments that the trial court
erred by concluding that G.D.C. was neglected. Under N.C. Gen.
Stat. § 7B-1111(a)(1), the court may terminate parental rights upon
a finding that "[t]he parent has abused or neglected the juvenile."
A neglected juvenile is defined by the General Statutes as:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile'sparent, 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).
In deciding whether a child is neglected for purposes of
terminating parental rights, the dispositive question is the
fitness of the parent to care for the child "at the time of the
termination proceeding." In re Ballard
, 311 N.C. 708, 715, 319
S.E.2d 227, 232 (1984) (emphasis omitted). "[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." Id.
at 713-14, 319 S.E.2d at 231. Termination
may not, however, be based solely on past conditions that no longer
exist. In re Young
, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997).
When, as here, a child has not been in the custody of the
parents for a significant period of time prior to the termination
hearing, "requiring the petitioner in such circumstances to show
that the child is currently neglected by the parent would make
termination of parental rights impossible." In re Shermer
N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). In those
circumstances, a trial court may find that grounds for termination
exist upon a showing of a "history of neglect by the parent and the
probability of a repetition of neglect." Id.
With respect to both
respondents, the trial court found that G.D.C. had previously beenadjudicated neglected, and there was a probability of future
neglect if she were returned to their custody.
As to respondent father, the court based its determination of
the likelihood of future neglect on respondent father's conduct
between the initial adjudication of neglect in December 2003 and
the termination of parental rights hearing, finding that the
father: (1) had not contacted DSS to inquire about G.D.C.; (2) had
not provided any gifts or cards for G.D.C.; (3) had, following his
release from prison, made no inquiries on what he needed to do to
be considered as a placement for his daughter; (4) had not attended
any court proceedings following his release from prison; (5) had
effectively abandoned G.D.C.; (6) had not demonstrated any
stability in that he had provided at least four different North
Carolina addresses since his release from prison; and (7) had not
provided any verification that he had attended the substance abuse,
mental health, and domestic violence counseling that was required
by his case plan. Although respondent father has assigned error to
these factual findings, he makes no argument as to why they are
unsupported by competent evidence, and, consequently, they are
binding on appeal. See In re P.M.
, 169 N.C. App. 423, 424, 610
S.E.2d 403, 404-05 (2005) (concluding respondent had abandoned
factual assignments of error when she "failed to specifically argue
in her brief that they were unsupported by evidence").
In turn, these findings of fact support the trial court's
conclusion that G.D.C. was neglected by respondent father. See,
, In re Davis
, 116 N.C. App. 409, 414, 448 S.E.2d 303, 306 (theparents' failure to "obtain continued counseling, a stable home,
stable employment, and [attend] parenting classes" was sufficient
to show a probability that neglect would be repeated if the child
were returned to the care of the parents), disc. review denied
N.C. 516, 452 S.E.2d 808 (1994); In re Apa
, 59 N.C. App. 322, 324,
296 S.E.2d 811, 813 (1982) ("Neglect may be manifested in ways less
tangible than failure to provide physical necessities. . . . [T]he
trial judge may consider . . . a parent's complete failure to
provide the personal contact, love, and affection that inheres in
the parental relationship."). Accordingly, the trial court did not
err in concluding that grounds existed to terminate respondent
father's parental rights based on neglect.
As to respondent mother, the court found that she: (1) had not
contacted DSS after November 2004 as to what she should do to
address the issues that led to G.D.C.'s removal; (2) had not
addressed the substance abuse, domestic violence, and mental health
issues that led to the removal; (3) had tested positive for
marijuana at the birth of a subsequent child; and (4) refused to
believe she needed any domestic violence counseling despite the
incident of domestic violence between her and respondent father and
a childhood involving domestic violence. Although respondent
mother assigns error to these findings, she also does not seriously
contest them in her brief. Indeed, as to (1) and (3), she makes no
argument; as to (2), she admits that she was not progressing with
respect to these issues "at times." Consequently, as was the case
with respondent father, respondent mother has abandoned herassignments of error on these issues, and they are deemed binding
on appeal. P.M.
, 169 N.C. App. at 424, 610 S.E.2d at 404-05. As
to (4), she only reiterates her contention that she does not
believe she needs domestic violence counseling _ precisely the
assertion in the trial court's finding of fact.
We conclude these findings are sufficient to show neglect.
, In re Johnson
, 70 N.C. App. 383, 389, 320 S.E.2d 301,
305-06 (1984) (improper care during a trial placement, a failure to
make lifestyle changes, and sporadic attendance at counseling
sessions constituted evidence of neglect). Respondent mother
nevertheless argues that the trial court ignored significant
changes in her circumstances. See, e.g.
, 311 N.C. at 715,
319 S.E.2d at 232 ("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.").
Specifically, she contends that, by the time of the
termination hearing, she was attending mental health therapy, had
completed a parenting class, and had submitted to several random
drug screens. The trial court found, however, that respondent
mother's recent improvements did not demonstrate a change in
circumstances, but, rather, merely reflected a larger "pattern of
initiating services and being compliant . . . but only to stop
attending . . . after a few months." Although respondent mother
challenges this finding on appeal, she admits that after the
initial adjudication of neglect, she was evicted from her home and
failed to keep in touch with DSS, but then went into substanceabuse treatment and entered a half-way house. She later left the
half-way house early, but then returned to therapy. She
subsequently dropped out of therapy, began abusing drugs, and again
lost touch with DSS, but asserts that now she is "a year older" and
has "six months of documented good progress." These admitted facts
establish precisely the "pattern of initiating services" for only
"a few months" to which the trial court referred.
We, therefore, conclude the trial court had clear, cogent, and
convincing evidence with respect to both respondents upon which to
determine that G.D.C. had been subjected to a history of neglect
and was likely to be similarly neglected in the future.
Accordingly, the trial court did not err in finding that grounds
existed to terminate respondents' parental rights under N.C. Gen.
Stat. § 7B-1111(a)(1). "Having concluded that at least one ground
for termination of parental rights existed, we need not address the
additional ground[s] . . . found by the trial court." In re
, 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
Finally, respondent mother contends the trial court (1) erred
by concluding it was in G.D.C.'s best interests to terminate her
parental rights and (2) abused its discretion by ordering
respondent mother's parental rights terminated. As DSS met its
burden of proving that at least one statutory ground for
termination existed, the trial court had discretion to terminate
respondent mother's parental rights upon a finding that it would be
in the best interests of G.D.C. to do so. Blackburn
, 142 N.C. App.at 613, 543 S.E.2d at 910. The evidence recited above pertaining
to respondents' neglect of G.D.C. provided clear, cogent, and
convincing evidence to support the trial court's finding that
termination was indeed in G.D.C.'s best interests.
Respondent mother nevertheless argues the trial court abused
its discretion by improperly basing its decision to terminate her
parental rights on G.D.C.'s success in foster care and the
stability provided by the foster care home. See Bost v. Van
, 117 N.C. App. 1, 8, 449 S.E.2d 911, 915 (1994) ("[A]
finding that the children are well settled in their new family unit
. . . does not alone
support a finding that it is in the best
interest of the children to terminate respondent's parental
rights." (emphasis added)), appeal dismissed
, 340 N.C. 109, 458
S.E.2d 183 (1995). Unlike Bost
, however, where the trial court
terminated a parent's rights despite the testimony of the
children's guardian ad litem and the court-appointed psychologist
that it would not be in the children's best interests to do so, id.
at 9, 449 S.E.2d at 916, the trial court in the present case did
not base its decision solely on the child's experience in the
foster home, but rather appropriately considered that factor along
with the substantial evidence of neglect by both parents. We,
therefore, cannot conclude the trial court's termination decision
was manifestly unreasonable. This assignment of error is
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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