Converted WP file 060222-1

IN RE S.E.R., II                     Orange County
                                No.    03 J 105


    Appeal by Respondent from order entered 1 August 2005 by Judge M. Patricia DeVine in Orange County District Court. Heard in the Court of Appeals 31 October 2006.
    Appellate Defender Staples Hughes, by Assistant Appellate Defender Keischa M. Lovelace and Emily H. Davis, for Respondent-Appellant.

    Womble Carlyle Sandridge & Rice, P.L.L.C., by Christopher G. Daniel, for Guardian ad Litem-Appellee.

    Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for Petitioner-Appellee.


    STEPHENS, Judge.
     On 5 March 2004, the Orange County Department of Social Services (“DSS”) filed a juvenile petition alleging that S.E.R., II   (See footnote 1) was neglected and dependent. On 6 May 2004, the trial court adjudicated S.E.R., II to be dependent after his parents consented to a dependency determination. At regular review hearings during the next several months, the court continued nonsecure custody ofS.E.R., II with DSS and ordered DSS to continue reunification efforts with the child's parents who were ordered, inter alia, to complete a parental competency evaluation and comply with the service plan and goals established by DSS.
    On or about 19 October 2004, Respondent abruptly moved to Florida to join S.E.R., II's mother who was allegedly pregnant with Respondent's second child. Before moving, Respondent had begun to demonstrate consistency in visiting S.E.R., II and in attending appointments. After moving, Respondent advised the DSS social worker that he “[did] not have a plan” regarding his future. He advised S.E.R., II's guardian ad litem that there was “no chance of his ever coming back to live” in North Carolina.
    On 4 November 2004, the trial court ceased reunification efforts and, on 17 December 2004, DSS filed a petition to terminate Respondent's parental rights to S.E.R., II, alleging that the minor child had been neglected by Respondent, who had failed, inter alia, to (1) comply with drug screen requests, (2) complete parenting classes before he abruptly left North Carolina for Florida, and (3) establish stable housing. The termination of parental rights (TPR) hearing was held on 15 June and 1 July 2005 before the Honorable M. Patricia DeVine in Orange County District Court. Witnesses testifying at the hearing included Dr. Helen Brantley, a clinical and forensic psychologist; Dr. Betty Rintoul, a clinicalpsychologist; Tina Weiler, DSS child protective services social worker; Roger Davis, a friend of Respondent's; and Respondent.
    Evidence pertinent to the termination of Respondent's parental rights tended to show the following: S.E.R., II was born in April 2002 in Florida. On 22 February 2004, DSS obtained an order for nonsecure custody of the child based on allegations of drug use by his mother, a minor at the time, in the presence of the child. Although Respondent never had custody of the child, he remained concerned about the ability of the child's mother to take care of him. There were times when Respondent did not see his child because the mother “would go and [he] wouldn't know where she was.” Respondent testified that the mother had “bad habits” and exposed S.E.R., II to the “wrong environment[][.]” DSS received a report on 20 February 2004 that alleged the mother was “always drunk or on drugs” and that she had “plann[ed] to leave [S.E.R., II] in the car unsupervised while she went to a club.” At that particular time, the child was spending the weekend with Respondent. Nonetheless, Respondent believed that the child was better off with his mother because of her “motherly instinct that fathers just don't have.”
    Prior to moving to North Carolina, the child's mother was in the custody of the State of Florida. In October 2002, the child's mother “was on runaway status from Florida[.]” By February 2004, DSS had received the report and had obtained an order for nonsecurecustody of S.E.R., II. DSS obtained custody of the child on 23 February 2004 when Respondent and the mother brought him to DSS after learning about the court order.
    As part of the case plan and services implemented by DSS, and on order of the trial court, Respondent saw Dr. Helen Brantley in August and September 2004 for a parental competency and psychological evaluation. Dr. Brantley, a clinical and forensic psychologist, testified that Respondent reported marijuana use beginning at age thirteen and continuing through 2003. Respondent also ultimately admitted to Dr. Brantley that he had been hospitalized in May 2004 for health problems related to cocaine use, although he initially denied ongoing drug use after 2003. Respondent was subsequently asked to submit to drug screenings, but he did not complete any as of 19 October 2004. Based on information she had received, Dr. Brantley testified that the average length of jobs held by Respondent was three to six months.     In October 2004, Respondent abruptly left North Carolina and moved to Florida without alerting DSS or saying goodbye to S.E.R., II. Dr. Brantley opined that this behavior demonstrated Respondent's impulsivity and lack of good judgment. Because of his sudden departure, he did not complete parenting classes.
    While Respondent was in Florida, he failed to contact DSS. However, the social worker assigned to this case, Tina Weiler, wasable to reach Respondent shortly after he moved to Florida and advised him of her concerns regarding his “rapid departure, the impact that it had [on] his visitation with [S.E.R., II] and the work that he'd been trying to do here.” Ms. Weiler also mailed several letters to Respondent's address in Florida, but she was unable to contact Respondent again. Respondent returned to North Carolina in March 2005. Upon his return, he spoke with Ms. Weiler. She explained the impact of the disrupted visitation with S.E.R., II and informed Respondent that DSS was moving toward filing a petition to terminate his parental rights.
    Evidence was also presented regarding Respondent's living arrangements. Respondent rented a house from his grandfather from July 2003 to October 2004. He then moved to Florida, where he lived with S.E.R., II's mother. When Respondent returned to North Carolina in March 2005, he moved in with his friend, Roger . As of the date of hearing, Respondent was preparing to move into a rental home owned by his grandfather.
    Dr. Betty Rintoul, a clinical psychologist, evaluated S.E.R., II from 7 May 2004 until 5 November 2004 on eighteen different occasions. She concluded that initially, S.E.R., II “was in considerable distress both emotionally and behaviorally.” Dr. Rintoul noted that the child exhibited emotional reactivity, withdrawal, aggression, insomnia, unpredictable fear reactions andvery little language use. He had problems eating at a table, and instead would snack and wander around during mealtimes. S.E.R., II also showed a “lack of playfulness” and “disturbed interaction patterns including avoidance of eye contact.” Dr. Rintoul noted further that S.E.R., II did not seek out adults for comfort. “Instead[,] he had extreme attachment to his bottle, which at two years, is far beyond the age that most children had given up a bottle.” He displayed developmental delays in his speech and a hyper-reactive stress response system from the unavailability of secure attachment in a responsive, consistent and reliable caregiver. In Dr. Rintoul's opinion, the behaviors she observed during her evaluation of S.E.R., II “point[ed] to early experiences . . . that were unresponsive [and] frightening.”
    Dr. Rintoul testified that S.E.R., II made tremendous progress with his foster parents in three months, which she attributed to the foster parents' patience, consistency and “sensitive responding” to him. But, she noted that when he went on a vacation with his foster mother, he regressed emotionally, which “really highlighted . . . that he remains an emotionally fragile child.” In March 2005, Dr. Rintoul requested that DSS not allow Respondent to see S.E.R., II for fear of confusion and detrimental harm to the child.
     At the conclusion of the hearing on 15 June 2005, Judge DeVineterminated the mother's parental rights to S.E.R., II. She did not appeal. On 1 August 2005, the trial judge filed a written order terminating Respondent's parental rights. On appeal from that order, Respondent argues that (1) the trial court's findings of fact were not supported by clear, cogent and convincing evidence, (2) the trial court erroneously concluded that Respondent's actions constituted neglect of S.E.R., II, and (3) the trial court abused its discretion by terminating Respondent's parental rights. We disagree and, for the reasons which follow, affirm the trial court.

By multiple assignments of error, Respondent challenges the following findings of fact of the trial court on grounds that these findings are not supported by clear, cogent and convincing evidence:
7. At times when [the child's mother, April Taylor,] and [Respondent] would separate, Ms. Taylor would leave and take the child to unsafe situations. [Respondent] knew that Ms. Taylor took [S.E.R., II] into unsafe situations but he did nothing about it. Ms. Taylor would take the child into places where drugs were being used and possibly sold and where she had a violent relationship with another man. [Respondent][] nonetheless felt that the child was better off with his mother. [Respondent] does not now believe that April Taylor is capable of caring for a child.

8. [Respondent] lacks insight as to his responsibility as a father because of his failure to even try to protect the child fromharm while in the care of April Taylor.

9. [Respondent] completed a parental competency evaluation performed by the UNC Child Forensic Team located in the Department of Psychiatry. He impressed the team as someone who could parent the child. However, during the course of the evaluation, he was untruthful to the evaluator about his drug use by saying that he did not use and had not used for a long period of time. However, when the evaluator discovered that he had previously been admitted to the hospital with a minor heart attack brought on by cocaine use, he then called the evaluator and confessed that he had used drugs.

10. Almost simultaneously with the completion of the somewhat positive parental evaluation, [Respondent] abruptly left town. This caused the evaluator to revise her recommendations and to comment that [Respondent's] departure demonstrates his impulsivity and lack of commitment to the child.
. . . .
13. At a point when [Respondent] seemed to be making progress toward reunification with the child, he impulsively moved to Florida with April Taylor in October, 2004. He did not inform his social worker that he was leaving, nor did he request a visit with the child before leaving. At the time, April Taylor was pregnant and told [Respondent] that he was the father. When the baby was born, [Respondent] then believed that he was not the father, as the baby did not look like him. He has not had a paternity test to determine one way or the other. When Ms. Taylor told him that the baby was not his, he left Florida and returned to North Carolina.

14. While [Respondent] was in Florida, he made no effort to contact the child. Notwithstanding the social worker's attempts to contact [Respondent], he made no effort tocontact his social worker, nor the Guardian ad Litem. He did not inquire of the child, nor send him any communication, nor any gifts nor cards. [Respondent] did not contact his social worker for four months while in Florida.

15. While [Respondent] was in Florida, he did not initiate any contact with Florida agencies to work on getting the child or his case transferred to Florida. While he wanted the case transferred to Florida, he did nothing to get it transferred. He did allow a Florida social worker into the home, but he did nothing to seek services which might help him. He relied on Ms. Taylor to seek the services, though he was unclear of her efforts.

16. Throughout the time that the child has been in [DSS] custody, [Respondent] has not had stable housing. He currently lives with his friend Roger in a two bedroom trailer in Hillsborough, North Carolina. He signed a lease on June 27, 2005 to rent a house from his grandfather. This lease was signed 12 days after the first day of this hearing and 4 days before the second day of this hearing. [Respondent] has lived in his grandfather's rental home in the past and got behind on his rent by about $850.00 which he has recently paid.

17. [Respondent] has had at least 7 jobs in the past few years. He has held jobs for short periods, only months at a time. He has held his current job since April, 2005 but is currently looking for another job. He has applied for a job in Durham.
. . . .
20. [Respondent] produced for the Court a list of daycare centers which he believed could care for the child, if the child were in his custody. He called some of the centers and his mother called others. He did not know whether the centers would be able to take the child, given the child's needs and behaviors.
21. [Respondent] does not have any perception of what the child's needs are nor how to meet them. He does not understand nor comprehend the damage that has been done to the child during the course of his very young life.

22. [Respondent] is impulsive, lacks insight and demonstrates poor judgment. This is evidenced by the following: he moved to Florida thereby abandoning his child and efforts to be reunified with his child, without consideration as to how his move would impact the juvenile and acknowledged that he would no longer be able to see the child; by his relationship with April Taylor and his knowingly leaving the child with her, even though she would engage in activities and behaviors which were potentially harmful to the child; by his abrupt [exit] from the Courtroom in protest of the Court'[s] ruling in the middle of a hearing; and by his providing the parental competency evaluator with information that was untrue in order to make himself look more favorable in the eyes of the evaluator.
. . . .
25. The child needs stability and parents who are mature and able to perceive his needs and who are able to seek the special help the child needs. The child was damaged by his early unstable life with his biological parents and the neglect he suffered at their hands.

     Our standard of review for the termination of parental rights is whether the trial 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). We note that in a neglect adjudication,the trial court's findings of fact are deemed conclusive as long as they are supported by clear, convincing, competent evidence, even where there is evidence to support contrary findings. See In re Helms, 127 N.C. App. 505, 491 S.E.2d 672 (1997).
    In the case sub judice, Respondent testified that S.E.R., II's mother would leave and take him “around the wrong environments and . . . [have] him around the wrong things.” In addition, DSS received a report on 19 August 2003 that S.E.R., II's mother neglected to feed and clean the child and would “party[] all night.” Also included in the report was an allegation that the mother had S.E.R., II “around someone who pulled a gun on [her] in front of the child.” Further, there is evidence that the mother had to take out protective orders against individuals, but exposed the child to individuals involved with protective orders and those with “a history of dangerous behavior.” Despite his knowledge of the lifestyle to which his son was being exposed as a baby, Respondent testified that he believed “that a child that young is better with their [sic] mother if at all possible[,]” even though he acknowledged that he had concerns about how S.E.R., II's mother was parenting him.
    The trial court admitted testimony from Dr. Brantley, which included evidence that Respondent had initially lied to Dr. Brantley about his drug use. It was not until after Dr. Brantleydiscovered the truth that Respondent telephoned her to confess that he had been using cocaine. Further, the uncontroverted evidence established that Respondent left North Carolina in October 2004 to be with S.E.R., II's mother, who had moved to Florida. Prior to leaving, he did not inform his social worker or say goodbye to his child, who was in DSS custody. Testimony from Ms. Weiler, the social worker, and Dr. Brantley was admitted in which they both described the detrimental effect his abrupt departure had on the reunification proceedings. Respondent testified that he moved to Florida suddenly because S.E.R., II's mother claimed she was carrying his child, and he “felt at the time that it would be best for [him] to go to Florida and help support her in her pregnancy and to be there for [his] new child[.]” Respondent further testified that he did not seek social services for his family while in Florida even though Ms. Weiler had suggested that he do so. Instead, he relied on S.E.R., II 's mother to seek services, although he “[could not] really remember what they were.” It is undisputed that Respondent did not try to contact S.E.R., II, Ms. Weiler or the guardian ad litem while he was in Florida. It is also undisputed that Respondent failed to send any communication, gifts or cards to S.E.R., II while he was in Florida. Respondent testified that the reason he returned to North Carolina was because he discovered that he was not the father of the second child.     At the time S.E.R., II was placed in the custody of DSS, Respondent lived in a house he rented from his grandfather. When Respondent returned to North Carolina from Florida, he lived with his friend, Roger. At the time of the hearing, Respondent had signed a lease to rent a house from his grandfather again, but DSS noted that Respondent forfeited his stable housing when he moved to Florida “to reside with friends and acknowledged . . . that he had 'no plan.'”
    Dr. Brantley testified that Respondent “had a series of jobs as a cook and was working with Brown's Lawn Care, worked for the Department of Transportation briefly, worked for the City of Durham briefly. [Respondent] said that his average job length was a year and a half. . . . [I]t was more like three to six months.” Respondent testified that between 2004 and 2005, he worked as a mason, buried underground cable in Florida for three months, delivered pizza part-time for one year, sold cars for one week, and worked as a laborer at a landscaping company for one day. At the time of hearing, Respondent was looking for a different job.
    Respondent further testified that he called ten child care facilities while investigating child care options, and made a list of six or seven facilities that he could afford and which had space for an additional child. On cross-examination, Respondent conceded that he had not visited any of the facilities, and since he did notdescribe S.E.R., II 's behaviors to any of the day care personnel, he did not know whether any of them would accept S.E.R., II .
    Throughout Respondent's testimony, he acknowledged that he did not know what type of behavioral problems S.E.R., II exhibits. Further, Respondent demonstrated that he is “impulsive, lacks insight and demonstrates poor judgment.” For example, (1) Respondent made the decision to move to Florida with S.E.R., II 's mother even though DSS was working toward reunification with his son; (2) Respondent left North Carolina without saying goodbye to his child and without speaking with his social worker; (3) prior to DSS obtaining custody of S.E.R., II , Respondent left the child with S.E.R., II 's mother, even though Respondent had concerns about her parenting; (4) Respondent admitted lying to Dr. Brantley about his cocaine use; and (5) Respondent abruptly left the courtroom in the middle of the hearing on 15 June 2005 because he took issue with one of the court's rulings.
    In addition, Dr. Rintoul evaluated S.E.R., II and found that the child exhibited emotional reactivity, withdrawal, aggression, insomnia, unpredictable fear reactions and dwarfed language use, despite his age, because of his traumatic early childhood experiences. Based on the aforementioned evidence and the totality of the transcript which we have thoroughly and carefully reviewed, we are convinced that there was ample clear, cogent and convincingevidence to support the challenged findings of fact. We are unpersuaded by Respondent's arguments on this issue and thus overrule these assignments of error.

By Respondent's next argument, he contends that the trial court erred by concluding that he neglected S.E.R., II . Specifically, he contends that (1) there was no clear, cogent and convincing evidence to support a determination that he was neglecting his child at the time of the hearing; and (2) to the extent that past conditions are relevant to the neglect determination, he had rectified “any past problems and concerns” by the time of the hearing. We disagree.
In juvenile cases, neglect is defined 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[.]

N.C. Gen. Stat. § 7B-101(15) (2004). In In re K.D., ___ N.C. App. ___, 631 S.E.2d 150 (2006), this Court held that the evidence was sufficient to support the trial court's finding of neglect where the parent had a history of leaving the child without ensuring he was properly supervised and failed to attend parenting classes. Inaddition, we have upheld a finding of neglect where a parent failed to regularly visit the child when the opportunity presented itself. In re A.J.M., ___ N.C. App. ___, 630 S.E.2d 33 (2006).
    Evidence presented by DSS tended to show that Respondent purposefully left S.E.R., II in the care of the child's mother even though he knew she exposed him to injurious environments and individuals. In addition, it is uncontroverted that Respondent intentionally abandoned S.E.R., II when he abruptly moved to Florida without telling him goodbye, with the intention of never moving back to North Carolina. This was a purposeful and willful abandonment of S.E.R., II , which showed Respondent's past neglect of his child. Further, Respondent failed to complete parenting classes as suggested by DSS.
    Respondent also contends that because S.E.R., II 's mother is no longer in his life, he is a fit parent and the evidence will not support a determination that any past neglect of the child is likely to be repeated. Again, we disagree. The evidence established that Respondent lied about his ongoing drug use and failed to complete drug screenings, despite several requests by DSS . For this reason, the trial court found that “it is unclear as to whether [Respondent] currently uses drugs.” Moreover, at the time of the hearing, although Respondent was employed, he did not have a history of stable employment. On the contrary, he hadchanged jobs every few months over a several-year period. In fact, at the time of the hearing, he was seeking to change jobs again.
    Respondent also did not have a history of stable housing. At the time of the hearing, he was temporarily living with his friend, Roger. Respondent had arranged to move into a rental home owned by his grandfather, but had not yet done so. Respondent's housing history demonstrates his impulsivity, as he has lived in at least three different places during the past few years.
    As previously set out, the trial court made detailed findings of fact, based on the aforementioned evidence, to establish Respondent's neglect of S.E.R., II. These findings of fact provide plenary support for the court's challenged conclusion of law that “[t]he minor child has been neglected by the Respondent/father within the meaning of N.C.G.S. 7B-101.” This assignment of error is overruled.

    Lastly, Respondent argues that the trial court abused its discretion by terminating his parental rights to S.E.R., II . We disagree.
    In termination of parental rights proceedings, we review the trial court's “best interests” analysis and decision under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). If the petitioner meets its burden ofproving that at least one ground for termination of parental rights exists under N.C. Gen. Stat. § 7B-1111(a), then the trial court proceeds to the disposition phase and determines whether termination of parental rights is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2005). Here, the trial court determined that Respondent had neglected S.E.R., II , which is a ground for termination pursuant to section 7B-101(15), and we have upheld the trial court's determination in this respect. The trial court thus properly proceeded to disposition and the “best interests” analysis. See also N.C. Gen. Stat. § 7B-1111(a) . At the disposition phase, the trial court is required to terminate the parent's rights unless it determines that the best interests of the child require that the parental rights not be terminated. In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988).
    When determining the best interests of the child, the trial court shall consider the following:
(1)     The age of the juvenile.
(2)    The likelihood of adoption of the juvenile.
(3)     Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4)     The bond between the juvenile and the parent.
(5)     The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6)     Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a).
    In the present case, the trial court clearly took these factors into consideration. For example, there was evidence admitted at hearing establishing that S.E.R., II , who was born in 2002, has flourished with his foster parents in overcoming developmental delays and behavioral and emotional issues. The trial court found that S.E.R., II 's foster parents wish to adopt him and that disrupting the bond S.E.R., II has formed with his foster parents “could cause irreparable psychological harm.”
    We note that Respondent has not disputed that S.E.R., II has been harmed by the actions of his biological parents when he was just a baby. Further, a close review of the evidence admitted herein reveals no basis for holding that the trial court abused its discretion in choosing to terminate Respondent's parental rights. At the time of hearing, Respondent was looking for new employment, could not demonstrate stable housing, had not fully complied with DSS requests for drug testing, had not completed parenting classes, and still exhibited erratic behavior and poor judgment. In view of this evidence, we hold that the trial court did not abuse its discretion in terminating Respondent's parental rights to S.E.R., II. Accordingly, this assignment of error is overruled.
    The 1 August 2005 order terminating Respondent's parental rights is     Affirmed.