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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 April 2007
In the Matter of: Guilford County
D.B.S. and I.D.M., Nos. 04 J 27
Minor Children. 04 J 28
Appeal by Respondent mother from order entered 18 October 2005
by Judge Patrice A. Hinnant in Guilford County District Court.
Heard in the Court of Appeals 10 January 2007.
Leslie R. Nydick for Respondent-Appellant.
Mercedes O. Chut for Petitioner-Appellee.
Smith, James, Rowlett & Cohen, L.L.P., by Margaret Rowlett,
for Guardian ad Litem-Appellee.
Respondent mother (Respondent) appeals from an order entered
by Judge Patrice A. Hinnant on 18 October 2005 terminating
Respondent's parental rights to her daughter, D.B.S., and her son,
I.D.M. For the reasons stated herein, we affirm the decision of
the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
In a juvenile petition filed 3 February 2004, the Guilford
County Department of Social Services (DSS) alleged that D.B.S.
and I.D.M. were abused, neglected, and dependent. Pursuant to an
order filed 9 February 2004, DSS assumed nonsecure custody of the
children. After a hearing on 12 April 2004, the Honorable Lawrence
C. McSwain adjudicated D.B.S. abused and neglected and I.D.M.neglected. In a permanency planning order filed 19 November 2004,
Judge McSwain concluded that DSS should file a petition to
terminate parental rights[.] On 4 January 2005, DSS filed a
petition alleging that grounds existed, under N.C. Gen. Stat. §§
7B-1111(a)(1) and (a)(3), to terminate Respondent's parental
rights. The termination hearing was held before the Honorable
Patrice A. Hinnant on 19 September 2005 in Guilford County District
Cynthia Mejia, a foster care social worker for DSS, testified
that on 21 January 2004, DSS received a report alleging that
Respondent did not have any food in her home for the children and
that she left her children unattended for long periods of time.
After this report, DSS completed a family assessment and determined
that the family was in need of services. Respondent then entered
into a safety plan with DSS in which she agreed that she would not
leave the children, who were two years old and seven months [old]
at the time, unattended. After the safety plan was entered,
Respondent was arrested for shoplifting while I.D.M. was with her.
Several days later, on 29 January 2004, when Respondent went
shopping for formula, she left the children in the care of her
cousin's boyfriend, a man named Tim, whom she had known for only
two weeks. Respondent reported that upon her return from the
store, she noticed burns on D.B.S.'s buttocks and vaginal area, but
she did not seek medical attention for D.B.S. until 31 January
2004. Respondent testified that she delayed seeking medical
attention for D.B.S. because she was afraid that DSS would take herchildren into custody, and she just wanted a little extra time
with them. Medical personnel determined that D.B.S. had suffered
second degree burns.
When DSS conducted an investigation, Respondent offered
several versions of what she believed caused the burns to her
daughter. Respondent told DSS workers that D.B.S. was burned as a
result of diarrhea caused by laxatives the child ate when she was
left unsupervised. She also told DSS investigators that her
daughter may have been burned by a space heater. Medical experts
consulted by DSS, however, did not find Respondent's explanations
plausible. Rather, the medical experts opined that the burns were
likely caused by either a hot liquid or chemical being poured on
the child. As a result of the 21 January report and this incident
with D.B.S., DSS took the children into nonsecure custody.
On 12 February 2004, Respondent entered into a case plan for
reunification with her children. By entering into the case plan,
Respondent agreed to submit to a parenting assessment and follow
any recommendations resulting therefrom, to complete parenting
classes and demonstrate appropriate parenting skills, to obtain and
maintain gainful employment, to pay child support, to obtain and
maintain stable housing, to visit with her children on a weekly
basis, and to submit to random drug screens.
With regard to housing, Respondent testified that before her
children were taken into custody, she was living with her children
in an apartment in Greensboro. While living in this apartment,
Respondent was employed through Work First, but when DSS removedD.B.S. and I.D.M. from the home, she was no longer eligible for the
program. Respondent failed to pay her rent and was subsequently
evicted from her apartment. DSS was not able to make a housing
referral for Respondent because there is a mandatory five-year
waiting period before Respondent would again be eligible for
government subsidized housing following her eviction.
Shortly after being evicted from her apartment, Respondent
moved in with Leonard David Washington (Washington), a man she
had known for about a month. Since moving in with Washington,
Respondent made limited efforts to secure individual housing and
failed to provide DSS with any documentation of her efforts. DSS
evaluated Washington's home to determine its suitability for
children, but determined that it was not appropriate. Respondent
testified that Washington has provided her with weekly work for
which she received cash payments, he allowed her to stay in his
house rent free, and he paid for all of the household expenses.
Respondent was referred to the Guilford Center to complete a
parenting assessment. She missed her first set of appointments,
but later rescheduled and completed the evaluation. At the end of
the assessment, counseling was recommended for Respondent.
Respondent was referred to a counselor in November 2004, but did
not start individual counseling until July 2005. Respondent
testified that this delay resulted from her counseling referral not
being immediately provided and stated that when the referral was
eventually made, her counselor was booked up. However,
Respondent also admitted that she failed to document the delay inthe referral. At the time of the termination hearing, Respondent
was continuing to attend individual counseling sessions.
Respondent completed a basic parenting course and was
subsequently ordered, in November 2004, to complete the STAR
program. She completed the intake appointment in January 2005,
started the program in March 2005, and completed the program in
July 2005. Respondent testified that in the STAR program she has
learned that she needs to provide her children with both
discipline and love and that her children should always be [her]
first priority. Respondent additionally recognized that she
struggled disciplining her children in the past, but testified that
she had worked to improve in that area of parenting and stated that
now her children really listen to me[.] These programs were
intended to assist Respondent in improving her parenting skills,
but DSS workers noted that Respondent's progress was not
Respondent's visits with her children began at a DSS office,
but then moved to a local McDonald's restaurant in order to provide
a better environment for Respondent to interact with her children.
Ms. Mejia testified that during their visits, Respondent was very
loving and really cared for her children, and the children were
generally very excited to see her. Respondent testified that
during visits, she talked and played with her children and that her
children love her. However, Respondent admitted that she did not
provide activities for her children and failed to bring items that
would help promote D.B.S.'s cognitive growth. The evidence alsodemonstrated that Respondent was late to visits on several
occasions. Respondent testified that, even though the visits were
scheduled for 10:00 or 11:00 a.m., she was late because she
overslept. Respondent stated that when she does not need to get up
for work, she sleeps until around two o'clock in the afternoon.
Vicky Spock, a Guilford County child support establishment
agent, testified that although the case was referred to child
support on 6 April 2004, Respondent was not placed under a child
support order until 1 February 2005. Ms. Spock stated that the
delay was a result of DSS's failure to obtain service of process on
Respondent. Before being placed under this order, Respondent had
failed to enter into a voluntary support agreement. Respondent
acknowledged previously receiving a letter regarding child support,
but nevertheless failed to contact the payment office.
Pursuant to the child support order, Respondent was required
to pay $56.00 per month in current support and $20.00 per month
toward arrearages, of which she owed $672.00 at the time the order
was entered. After entry of the order, all necessary sums due DSS
have been paid. Although she had worked for Washington for
eighteen months and had limited expenses since moving in with him,
Respondent provided her children with only a couple of outfits and,
before the entry of the support order, did not provide DSS with any
financial support despite knowing that DSS had to pay to care for
After the filing of the termination petition, in February
2005, Respondent found work at a Wendy's restaurant, but quit thisjob in May 2005 for various reasons, including her supervisor's
apprehensions regarding Respondent's need for time off work to
attend scheduled visitation with her children. Respondent
testified that she did not have a job lined up when she terminated
her employment at Wendy's, but had recently found another job and
testified that her current supervisor allowed her time off to visit
with her children.
Overall, Respondent recognized that she did not immediately
begin to comply with her case plan, claiming that she was depressed
and didn't force [herself] to get out there and do what [she] was
supposed to do. However, she stated that the support she had
received from Washington encouraged her to start working to regain
custody of her children.
At the conclusion of the hearing, Judge Hinnant found that
grounds existed to terminate Respondent's parental rights for her
failure to pay support while her children were in DSS custody and
her neglect of her children. Judge Hinnant then determined that it
was in the best interest of each juvenile to terminate Respondent's
parental rights. Judge Hinnant entered an order terminating
Respondent's parental rights on 18 October 2005. Respondent
II. QUESTIONS PRESENTED
By her first argument, Respondent contends that the trial
court erred in entering findings of fact and conclusions of law
regarding her failure to pay a reasonable portion of the cost of
care for her children. Specifically, Respondent argues thatbecause DSS did not offer any documentation regarding her
employment and earnings during the six months before the
termination of parental rights petition was filed, the trial court
erred in finding that her failure to pay support for her children
was willful. After a careful review of the evidence, we disagree.
In a termination of parental rights case, [i]f the trial
court concludes that the petitioner has proven grounds for
termination, this Court must determine on appeal 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 L.A.B., ___ N.C. App. ___, ___, 631
S.E.2d 61, 64 (2006) (quoting In re Allred, 122 N.C. App. 561, 565,
471 S.E.2d 84, 86 (1996) (citation omitted)). In this case, the
trial court determined that grounds existed to terminate
Respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(3). That statute provides that parental rights may be
terminated if a
juvenile has been placed in the custody of a
county department of social services, a
licensed child-placing agency, a child-caring
institution, or a foster home, and the parent,
for a continuous period of six months next
preceding the filing of the petition or
motion, has willfully failed for such period
to pay a reasonable portion of the cost of
care for the juvenile although physically and
financially able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2003).
In the termination order, Judge Hinnant found that:
21. Mr. Washington is self employed doing
home maintenance work such as lawn care,
gutters and painting. [Respondent] worksfor Mr. Washington earning $40.00 per day
in cash and she has worked for him since
moving in with him in February, 2004.
22. Although [Respondent] works for Mr.
Washington and has earned $40.00 per day
in cash, she has failed to voluntarily
provide any financial support for her
. . . .
45. [Respondent] has failed to actively seek
and obtain stable employment since the
children have been in DSS custody. She
has failed to provide the Court or DSS
with any documentation where she has
sought employment and she has failed to
obtain stable employment. She was not
under an Order to pay support for the
children prior to the filing of the
petition to terminate parental rights in
that the Guilford County Child Support
Enforcement Agency had not been able to
locate [Respondent] in that she has
46. [Respondent] has been working with her
friend, Mr. Leonard David Washington,
earning $40.00 cash per day doing home
maintenance since February, 2004. She
has had no living expenses other than her
clothing. However, she did not provide
any financial assistance for the minor
children prior to the filing of the
petition to terminate her parental
rights. [Respondent] also obtained
employment at Wendy's for 3 months, but
quit this employment due to conflicts
with co-workers. In August 2005, she
obtained employment at Ms. Winner's for 3
weeks, but quit this employment as well.
At the termination hearing, Respondent testified that she met
Washington in January 2004 and lived with him since February 2004.
She stated further that Washington was self-employed, that she had
been working with him every week since [she] moved in with him[,]
and that he's been paying [her] every week[.] With regard to herhousehold expenses, Respondent testified further that Washington
does not charge her rent, pays for the food in the home, and
although Respondent helped him on the water bill once[,]
Washington pays for all of the utilities. Additionally, the
evidence presented at the hearing demonstrated that Washington has
paid for all of Respondent's toiletries and makeup, as well as her
hairstyling appointments. Finally, the evidence also established
that prior to being placed under a child support order, Respondent
had failed to pay any support toward the care of her children while
they were in DSS custody.
This testimony provided clear, cogent and convincing evidence
upon which the trial court relied in making its findings of fact.
That is, based on Respondent's testimony, it is clear that for the
six months preceding the filing of the termination of parental
rights petition, Respondent earned money working for Washington,
had limited expenses, and yet failed to provide any support for her
children. These findings are sufficient to support the trial
court's conclusion of law that grounds existed, pursuant to N.C.
Gen. Stat. § 7B-1111(a)(3), to terminate Respondent's parental
rights. See In re T.D.P., 164 N.C. App. 287, 290, 595 S.E.2d 735,
738 (2004) (holding that the respondent's parental rights could be
terminated when the respondent failed to pay a portion of the cost
of care for his child, and there was clear and convincing evidence
that respondent had an ability to pay an amount greater than
zero), aff'd per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005). Respondent also contends that the trial court committed
reversible error by finding that Respondent earns $40.00 per day
in cash[.] While Respondent is correct that the evidence does not
support the $40.00 per day determination, absent this finding,
the remaining findings of fact support the conclusion of law
because Respondent did not pay any support. It was not that
Respondent earned $40.00 per day and failed to pay a reasonable
amount of support for her children which led to the trial court's
conclusion under N.C. Gen. Stat. § 7B-1111(a)(3); rather, it was
that Respondent earned some money and had very limited living
expenses, yet failed to pay any support for her children, which
resulted in the trial court's decision that this statutory ground
existed to terminate Respondent's parental rights. Accordingly,
Respondent's argument is overruled.
Respondent next argues that because she was not under a court
order to pay support for her children, the trial court erred in
terminating her parental rights. To support her contention,
Respondent relies on In re Roberson, 97 N.C. App. 277, 387 S.E.2d
668 (1990), and In re Faircloth, 161 N.C. App. 523, 588 S.E.2d 561
(2003). Respondent's reliance on these cases is misplaced and her
interpretation of the law is incorrect. Therefore, her argument is
The procedural posture of Roberson is clearly distinguishable
from the facts of the case currently before this Court.
Specifically, in Roberson, the petitioner sought to terminate therespondent's parental rights pursuant to N.C. Gen. Stat. § 7A-
289.32(5), now codified as N.C. Gen. Stat. § 7B-1111(a)(4), which
requires the petitioner to prove the existence of a support order
that was enforceable during the year before the termination
petition was filed. Roberson, 97 N.C. App. at 281, 387 S.E.2d at
670 (citation omitted). In this case, Respondent's parental rights
were not terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(4);
rather, DSS's petition relied on Respondent's failure under N.C.
Gen. Stat. § 7B-1111(a)(3) to pay support while her children were
in DSS custody. This provision does not require a child support
order to be in place prior to the filing of the termination of
parental rights petition. See, e.g., T.D.P., 164 N.C. App. at 289,
595 S.E.2d at 737 (the respondent's assertion that a support order
is necessary to require him to pay a portion of the cost of
T.D.P.'s foster care is also without merit) (citation omitted).
Accordingly, Respondent's argument is without merit.
Additionally, Respondent's reliance on Faircloth does not
support her argument. Respondent contends that the holding in
Faircloth requires that parental rights may not be terminated for
failure to pay support under N.C. Gen. Stat. § 7B-1111(a)(3) until
a court order is in place establishing a reasonable amount of
support. In a footnote, the Faircloth Court did note that legal
proceedings were never initiated which would have required the
respondent to pay support after the . . . children were placed in
CCDSS custody; thus, there was no child support order entered
establishing what would have been a reasonable portion of the costof care for the . . . children. Faircloth, 161 N.C. App. at 526,
588 S.E.2d at 564. However, the Faircloth Court did not rely on
this factor to reverse the order terminating the respondent's
parental rights. Rather, the Court in Faircloth relied on the fact
that the evidence presented at the hearing did not address whether
the respondent was financially capable of paying support for her
children. Id. In this case, as previously discussed, the evidence
presented at the hearing established that Respondent was capable of
paying support for her children while they were in DSS custody.
Accordingly, this argument is overruled.
By her third argument, Respondent contends that the trial
court erred in finding that the juveniles were neglected.
Specifically, Respondent argues that although there was a prior
adjudication of neglect, the evidence presented at the hearing did
not support the trial court's determination that the juveniles were
neglected at the time of the hearing. We disagree.
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), a trial court may
terminate parental rights if it finds that [t]he parent has . . .
neglected the juvenile. The juvenile shall be deemed to be . . .
neglected if the court finds the juvenile to be . . . a neglected
juvenile within the meaning of G.S. 7B-101. N.C. Gen. Stat. § 7B-
1111(a)(1) (2005). Under North Carolina law, a 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 providednecessary 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 case, the burden is on the petitioner to demonstrate that
the juveniles are neglected at the time of the hearing. In re
Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984). Termination of
parental rights for neglect may not be based solely on past
conditions which no longer exist. In re Young, 346 N.C. 244, 248,
485 S.E.2d 612, 615 (1997) (citing Ballard, 311 N.C. at 714, 319
S.E.2d at 231-32). Although evidence of a prior adjudication of
neglect is admissible and relevant to the trial court's
determination, the likelihood of the repetition of neglect will
ultimately allow the trial court to reach a conclusion regarding
its current existence. In re Leftwich, 135 N.C. App. 67, 518
S.E.2d 799 (1999). Relevant to this determination is whether
Respondent has made any meaningful progress in eliminating the
conditions that led to the removal of her children. Id. at 72,
518 S.E.2d at 803.
In this case, there was evidence presented at the termination
of parental rights hearing that Judge McSwain adjudicated both
juveniles neglected after a hearing held 12 April 2004. In
addition to this prior adjudication of neglect, there was alsoevidence regarding Respondent's failure to comply with her case
plan for reunification. Specifically, this evidence established
that Respondent failed to find housing that was suitable for her
children, failed to timely find adequate, documented employment,
and failed to make adequate improvement in her parenting skills.
Although Respondent is correct that there was also evidence
presented regarding her compliance with certain aspects of her case
plan, the trial court may judge the credibility of the evidence and
determine the weight to be assigned to competing testimony. On
appeal, this Court considers only whether the trial court's
findings of fact are supported by clear, cogent and convincing
evidence and the findings of fact support the trial court's
conclusions of law. We conclude the trial court's order meets this
standard. Therefore, Respondent's argument is overruled.
By her final argument, Respondent contends that the trial
court erred in terminating her parental rights because DSS failed
to make reasonable efforts at reunification. In her brief to this
Court, Respondent specifically argues that DSS (1) failed to give
Respondent a court order for child support in a reasonable period
of time and thus failed to inform Respondent what a reasonable
portion of the cost of care for her children would be, (2) failed
to assist Respondent in finding alternative housing and
subsequently determined that the housing Respondent was able to
secure was inappropriate for her children, and (3) failed to assistRespondent in following through with her parenting plan.
Respondent's contentions are without merit.
In In re Frasher
, 147 N.C. App. 513, 517, 555 S.E.2d 379, 382
(2001), this Court recognized an intent by the legislature to
eliminate the requirement that DSS provide services to a parent
before a termination of parental rights can occur . . . [and] that
a determination that DSS made [reasonable] efforts to provide
services to a parent is no longer a condition precedent to
terminating parental rights. Accordingly, Respondent's argument
For the reasons stated, the order of the trial court
terminating the parental rights of Respondent is
Judges TYSON and STROUD concur.
Report per Rule 30(e).
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