IN THE MATTER OF: A.N.J., New Hanover County
A.J.T.J., R.J.M., E.J.M., No. 03 J 483-486
Minor Children
Susan J. Hall, for respondent-appellant.
Holly M. Groce, for guardian ad Litem-appellee.
MARTIN, Chief Judge.
New Hanover County Department of Social Services (“DSS”) filed
a petition to terminate respondent's parental rights to her minor
children, A.N.J., A.J.T.J., R.J.M., E.J.M. (“the children”), on 4
December 2003. On 28 April 2004, the trial court terminated
respondent's parental rights as well as the parental rights of the
children's fathers, P.T.J. and J.E.M. Only respondent-mother
appealed from the termination order.
In an opinion filed 7 February 2006, this Court reversed the
termination order as to respondent and remanded for a new hearing
based on the district court's failure to enter its termination
order within the period prescribed by N.C. Gen. Stat. § 7B-1110(a)
(2006). In re A.N.J., __ N.C. App. __, 625 S.E.2d 203 (2006)
(unpublished). On remand, following a hearing held 10 April 2006, the
district court entered the instant order again terminating
respondent's parental rights to the children. Respondent filed
timely notice of appeal.
The record reflects that A.N.J. was born in Delaware in 1995,
and that her father is P.T.J. A.J.T.J. was born in Delaware in
1999. Although P.T.J. is listed on the birth certificate as the
child's father, respondent later averred that her biological father
is J.E.M. After moving to North Carolina in 2000, respondent gave
birth to R.J.M. in 2001, and to E.J.M. in 2002. She identified
J.E.M. as the biological father of these children.
After moving from Delaware to North Carolina with A.N.J. and
A.J.T.J. in 2000, respondent lived for some period in Leland, where
she received protective services from the Brunswick County
Department of Social Services. As part of her case plan,
respondent agreed not to allow J.E.M. into the home. Within days
of agreeing to the protective plan, however, she moved with A.N.J.
and A.J.T.J. to live with J.E.M. in a motel in Wilmington, North
Carolina. When discovered at the motel by DSS, respondent cursed
the social workers and suggested that they remove the children from
her custody.
DSS was awarded non-secure custody of the two oldest children,
A.N.J. and A.J.T.L., on 27 December 2000 based on allegations of
neglect. Both children were found by DSS to have bruises on their
buttocks. Although respondent admitted that she and J.E.M.
disciplined the children and that she spanked them, she deniedbruising eighteen-month-old A.J.T.J. and could not explain the
injuries. Respondent agreed to the children's placement in foster
care, acknowledging that she lacked adequate housing or means to
care for the children. Respondent gave birth to R.J.M. in 2001,
while she and J.E.M. were living in a shelter. R.J.M. was placed
in respondent's care upon conditions that she live with the child
in the home of her friend, Angela Smith, and that J.E.M. have no
contact with the child due to his alcohol and substance abuse.
Respondent failed to comply with these conditions, and R.J.M. was
placed in foster care by order entered 1 February 2001.
On 24 July 2001, the district court adjudicated A.N.J.,
A.J.T.J., and R.J.M. to be neglected juveniles under N.C. Gen.
Stat. § 7B-101(15) (2006). The court found that despite DSS's
efforts toward reunification and some progress by respondent,
returning the children to her care would be contrary to their
welfare. The adjudication order noted that respondent was visiting
the children regularly, had obtained full-time employment, and had
enrolled in parenting classes. The court ordered that respondent
be granted unsupervised visitation “to the extent possible” and
that the three children be returned to her physical custody within
30 days if she maintained stable employment and housing and
continued her cooperation with DSS. The court directed DSS to
arrange a psychological assessment for respondent and ordered her
to follow its recommendations.
DSS returned the three children to respondent's physical
custody on 25 and 27 May 2001, but removed them from her home on 22June 2001, after finding J.E.M. intoxicated in the home. In light
of respondent's and J.E.M.'s intention to live together, and their
request that DSS work with them as a family, the district court
ordered DSS on 11 October 2001 to retain custody of the children
with placement outside the home and to pay for J.E.M.'s substance
abuse treatment and anger management classes. The court ordered
respondent and J.E.M. to obtain stable housing and employment and
ordered J.E.M. to successfully complete drug treatment, submit to
random drug screens, and complete anger management classes.
Respondent was allowed supervised visitation.
In a review order entered 28 May 2002, the court found that
respondent was pregnant but had yet to obtain prenatal care.
Although respondent had been working full-time for several months
at a convenience store, she and J.E.M. were homeless. The court
found that J.E.M.'s continued substance abuse and respondent's
commitment to stay with J.E.M. precluded a permanent placement plan
of reunifying the children solely with respondent. It noted
J.E.M.'s refusal to sign the family services case plan developed by
DSS and his failure to complete all of the required anger
management classes. Despite the foster parents' wish to adopt the
children and the recommendations of both DSS and the Guardian ad
Litem to change the permanent plan from reunification to adoption,
the court directed DSS to continue making efforts toward the plan
of reunification. The court authorized “a contingent plan of
adoption if the parents do not make immediate and sustained
progress on reunification” by complying with their case plan,attending scheduled visitation, maintaining appropriate housing,
and allowing case workers “full access” to the residence. The
court observed that such progress would require “a fundamental
change in the lives of both parents.” J.E.M. was ordered to
abstain from alcohol, successfully complete drug treatment, and
submit to random drug screens.
Soon after E.J.M.'s birth in 2002, the district court entered
an order adjudicating her a neglected juvenile, upon findings that
respondent and J.E.M. lacked a residence suitable for a newborn and
that J.E.M.'s drug and alcohol abuse rendered their home “an
environment injurious to her welfare[.]”
In a review order entered 21 January 2003, the court found
that both parents had made progress toward fulfillment of the case
plan.
After a hearing held 6 February 2003, the court found that
DSS had allowed unsupervised visitations since December of 2002,
with in-home therapy and parenting beginning 6 January 2003.
Although the results were generally favorable, the court noted
A.N.J.'s difficulties with “divided loyalties” between her
biological and foster parents. After a referral to a child
psychiatrist for evaluation, A.N.J.'s therapist expressed concern
that she had been sexually abused or had been inappropriately
exposed to adult sexual activity. The court found that the
children's foster parents had consistently expressed a desire for
adoption, and that the children had bonded with their foster
parents. While noting A.N.J.'s conflicted loyalties and A.J.T.J.'s bond with respondent and J.E.M., the court found respondent's two
youngest children to “have little relationship with their parents.”
In addition to its prior directives, the court ordered respondent
to submit to a psychological evaluation and “to cooperate with the
in-home family therapy provided through Southeastern Center for
Mental Health.”
The district court ceased reunification efforts and changed
the permanent placement plan for the children to adoption following
a July 2003 review hearing. In an order entered 5 November 2003,
the court found that respondent had ceased participating with in-
home therapy and parenting in April 2003, failed to visit with her
children from 21 April 2003 to 4 June 2003, and offered “no
credible explanation” for the missed visitations. Although she had
secured adequate income and housing, she “delayed an inordinate
time” in using a voucher provided by DSS to purchase air
conditioning for her residence to accommodate the children's
respiratory ailments. Respondent blamed the delay on J.E.M.,
claiming he had stolen her money. While she no longer lived with
J.E.M., she continued to see him at her workplace and refused to
“sever[] the relationship . . . even with the knowledge that
maintaining that relationship has cost her children's
relationship.” The court found “alarming” respondent's
unwillingness to identify a second man observed at her residence,
in light of the symptoms observed in A.N.J. by her therapist.
On 3 June 2003, respondent denied the Guardian ad Litem entry
into her home. The court concluded that “each time [respondent]makes some minimal progress toward reunification, [she] then
defaults in large measure.” Noting that the two oldest children
had been in foster care since December 2000, and the two youngest
children had been in foster care nearly since birth, the court
determined “[t]hat reunification with [respondent] cannot be
attained within a reasonable time and it is no longer in the
children's best interest to delay permanency in their present
placements to pursue reunification.”
DSS filed its petition to terminate respondent's parental
rights on 4 December 2003, alleging as grounds for termination that
she had neglected the children and had willfully left the children
in foster care for more than twelve months without reasonable
progress in correcting the conditions which led to the placement.
N.C. Gen. Stat. §§ 7B-1111(a)(1), (2) (2006). The district court
found both grounds for termination alleged by DSS and entered an
order terminating respondent's parental rights on 8 December 2004.
On appeal, we reversed and remanded for further proceedings, based
on the court's seven-month delay in entering the termination order
after the termination hearing. In re A.N.J., __ N.C. App. __, 625
S.E.2d 203 (citing N.C. Gen. Stat. § 7B-1110(a)).
The district court conducted a second termination hearing on
10 April 2006. In addition to taking judicial notice of its prior
order in the case, the court heard testimony from respondent, her
friend Angela Smith, the children's Guardian ad Litem, and the
three DSS caseworkers assigned to respondent's case from January
2001 until the date of the hearing. The court concluded at theadjudicatory stage of the hearing that DSS had established both of
the alleged grounds for termination by clear, cogent, and
convincing evidence. At disposition, the court concluded that
termination served the best interests of the children by allowing
them to be adopted into the “safe, loving permanent homes” of their
foster parents.
In addition to findings reflecting the case history set forth
above, the court entered the following adjudicatory findings
regarding the period from December of 2002 to the date of the
hearing:
[14] . . . That in December 2002,
unsupervised day visitation in the home began
on a weekly basis. . . .
[15] That the Department of Social Services
arranged for the provision of parenting
instruction and family therapy during the
weekly visitation of the children in the home
of [J.E.M.] and Respondent[.] In-home services
were provided from December 30, 2002 until
July 14, 2003. The visitation and therapy
proceeded and appeared to go well until
sometime in April 2003 when Respondent . . .
stopped participating in the visitation. . . .
Respondent . . . stopped keeping appointments
with the in-home worker during this time and
services ceased July 14, 2003.
[16] That Respondent . . . did not visit with
her children from April 21, 2003, until July
4, 2003. That during this interval [she] did
visit R.J.M. on one occasion in conjunction
with heart surgery R.J.M. underwent at Duke
University Hospital.
[17] That A.N.J. displayed behaviors
indicative of exposure to adult sexual
activity or sexual abuse and had other
behavior problems apparently stemming from
conflicting loyalties to Respondent . . . and
to her foster mother. Respondent . . . had
trouble controlling A.N.J.'s behavior duringvisitation and was not receptive to meeting
with A.N.J.'s therapist to learn more of
A.N.J.'s problems. Respondent . . . viewed
[the] therapist as adverse to the plan of
reunification.
[18] That pursuant to a hearing held July 2,
2003, the permanent plan for the children was
changed from reunification to adoption.
Thereafter Respondent['s] participation in
visitation became somewhat sporadic. A.N.J.
reported that a man was present in the home
during visitation. Respondent . . . was
secretive about the identity and her
relationship with people who were in and out
of her home and did not disclose to [DSS]
Social Worker [Kevin] White the identity of
the man A.N.J. reported to be in the home who
may be the same man whom Social Worker White
observed in the home another occasion whose
identity Respondent did not reveal.
[19] That following the hearing of July 2,
2003, Respondent . . . did not keep Social
Worker White informed of her residence and her
actions. [He] learned of respondent's return
to Delaware from Angela Smith . . . . At some
point Respondent . . . did inform Social
Worker White that she was returning to
Delaware as her grandmother was ill. That
Respondent . . . has not had a residence in
Wilmington, North Carolina since before
December 2003.
[20] That Respondent . . . testified that
after the hearing of July 2, 2003, when the
plan for the children was changed to adoption,
she gave up and thought that there was no
reason to continue to visit or comply with the
provisions of her case plan and the court
orders entered. [She] acknowledged that
neither Social Worker Kevin White nor Social
Worker Suzanne Biaginni informed her or
advised her that her parental rights were
ended at the July 2, 2003 hearing or that
visitation was suspended after the July 2,
2003 hearing.
[21] That Respondent['s] visitation was
regular until October 2003 when she missed two
visits in a row. She also missed two visits
in November 2003, had only one visit inDecember and last visited January 16, 2004.
That Social Worker Suzanne Biaginni arranged
visitation for Respondent . . . in February,
March and April 2004, but no visitation
actually took place. That following the
original hearing on the petition to terminate
parental rights on 28 April 2004, Respondent .
. . made no further request for visitation.
[22] That after the filing of the Petition to
Terminate Parental Rights, an investigation of
allegations that A.N.J. was subject to sexual
abuse by [J.E.M.] was undertaken by [DSS] and
maltreatment of A.N.J. was substantiated. That
Respondent . . . has been informed of the
allegations and findings. [She] had no
knowledge of any misconduct of a sexual nature
by [J.E.M.]
[23] That Respondent . . . makes her home in
Fredricka, Delaware, and testified that she is
regularly and gainfully employed . . . .
[She] believes her home to be adequate for the
children. [She] believes that [J.E.M.] is
incarcerated in Delaware and that he faces a
lengthy period of incarceration. Other than a
period in which [J.E.M.] “stalked” Respondent
. . ., [she] has no knowledge of [his]
circumstances . . . and eschews any contact or
relationship with him.
. . .
[1] . . . That despite the guidance and
support provided [her], Respondent . . .
failed to provide proper care to her children
and the children, when in the care of
Respondent . . ., resided in an environment
injurious to their welfare. That . . . if the
children were returned to Respondent . . .,
there is a high probability of a repetition of
neglect. That despite the support and
guidance provided [her], Respondent . . .
failed to maintain visitation with her
children, failed to maintain a close bond with
her children and failed to establish a safe
and secure environment for her children.
. . .
Based on these findings, the court concluded that respondent “has
neglected the children and the conditions of neglect are
ongoing[.]” See N.C. Gen. Stat. § 7B-1111(a)(1) (2006). The court
further concluded that respondent “has willfully left the children
. . . in foster care for more than 12 months without showing
reasonable progress under the circumstances and correcting the
conditions which led to the removal of the children.” See N.C.
Gen. Stat. § 7B-1111(a)(2) (2006).
Based on testimony from the children's DSS case worker and
Guardian ad Litem, the court made the following findings pertinent
to disposition:
[24] That A.N.J. and R.J.M. reside in a foster
home with foster parents who are desirous of
providing a permanent home for the children
through adoption. That A.J.T.J. and E.J.M.
reside in a foster home with foster parents
who are desirous of providing a permanent home
for the children through adoption. That the
foster parents have promoted the visitation of
the children among themselves and the
maintenance of close sibling relationships.
That all the children are closely bonded to
their respective foster parents. . . .
. . .
[2] . . . [T]he children are in homes with
foster parents to whom the children are bonded
and who are committed and desirous of
adoption. That termination of the parental
rights of Respondent . . . will enable the
adoption of the children and provide the
children safe, loving permanent homes.
Based on its findings, the court concluded that termination of
respondent's parental rights served the best interests of the
children. See N.C. Gen. Stat. § 7B-1110(a) (2006). In her first two arguments on appeal, respondent claims that
the district court abused its discretion in finding grounds for
termination under N.C. Gen. Stat. § 7B-1111(a)(1) and (2). On the
issue of neglect under N.C. Gen. Stat. § 7B-1111(a)(1), respondent
concedes a history of “on-going neglect due to instability and
[J.E.M]'s alcohol addiction[,]” but argues that she has since
demonstrated an “ability to provide care, supervision, and
discipline” for the children. She further challenges the court's
conclusion that she failed to make reasonable progress to correct
the conditions which led to the children's placement in foster care
under N.C. Gen. Stat. § 7B-1111(a)(2). In addition to fulfilling
all of the requirements of her case plan, she avers she now has
stable employment, appropriate housing, and a family support
structure in Delaware. Citing her hearing testimony, she
attributes her failure to visit the children to her belief that her
right to visitation ended when the court changed the permanent plan
from reunification to adoption in July 2003.
The termination of parental rights is a two-stage process,
consisting of (1) an adjudication of whether grounds for
termination exist under N.C. Gen. Stat. § 7B-1111 (2006), and (2)
a disposition based on the adjudication. N.C. Gen. Stat. §§ 7B-
1109, -1110 (2006).
“Once one or more of the grounds for
termination are established, the trial court must proceed to the
dispositional stage where the best interests of the child are
considered.” In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d
165, 166 (2002). At the dispositional stage, the decision toterminate parental rights where grounds for termination exist is
reviewed only for abuse of discretion. In re McMillon, 143 N.C.
App. 402, 408, 546 S.E.2d 169, 174 (2001). A court abuses its
discretion if its decision “is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a
reasoned decision.” State v. McDonald, 130 N.C. App. 263, 267, 502
S.E.2d 409, 413 (1998) (quotation omitted). On review of an
order terminating parental rights, this Court must determine
whether the district court's findings of fact are supported by
clear, cogent and convincing evidence and whether the court's
findings, in turn, support its conclusions of law. See In re Huff,
140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000). Respondent has
assigned error to only two of the court's twenty-five findings of
fact; i.e., Findings #6 and #17. Her arguments, however, fail to
point us to any lack of clear, cogent and convincing evidence to
support either finding and are directed rather to the weight
accorded the evidence by the trial court. Indeed, we find each of
the findings amply supported by the evidence. Accordingly, the
district court's findings of fact are binding on appeal.
Therefore, we must determine whether the court's findings of fact
support its conclusions of law.
Under N.C. Gen. Stat. § 7B-1111(a)(1), the district court may
terminate a respondent's parental rights if it determines that she
has neglected the child. For purposes of N.C. Gen. Stat. § 7B-
1111(a)(1), a neglected juvenile is “[a] juvenile who does not
receive proper care, supervision, or discipline from the juvenile'sparent, guardian, custodian, or caretaker; . . . or who lives in an
environment injurious to the juvenile's welfare[.]” N.C. Gen.
Stat. § 7B-101(15) (2001).
At the time of the 10 April 2006 termination hearing, A.N.J.
and A.J.T.L. had been removed from respondent's care and custody
for more than five years. R.J.M. and E.J.M. had been in DSS
custody since soon after their births in 2001 and 2002. Moreover,
all four children had been subject to an adjudication of neglect in
either 2001 or 2002. See In re Stewart Children, 82 N.C. App. 651,
655, 347 S.E.2d 495, 498 (1986). Under these circumstances, N.C.
Gen. Stat. § 7B-1111(a)(1) did not require DSS to show that
respondent was continuing to neglect the children in the manner
which led to their removal from her custody:
Where, as here, a child has not been in the
custody of the parent for a significant period
of time prior to the termination hearing, the
trial court must employ a different kind of
analysis to determine whether the evidence
supports a finding of neglect. . . . The
determinative factors must be the best
interests of the child and the fitness of the
parent to care for the child at the time of
the termination proceeding. Although prior
adjudications of neglect may be admitted and
considered by the trial court, they will
rarely be sufficient, standing alone, to
support a termination of parental rights,
since the petition must establish that neglect
exists at the time of hearing. Thus, the
trial court must also consider evidence of
changed conditions in light of the history of
neglect by the parent and the probability of a
repetition of neglect. In addition, visitation
by the parent is a relevant factor in such
cases.
In re Shermer, 156 N.C. App. 281, 286-87, 576 S.E.2d 403, 407
(2003) (citations and quotations omitted). As found by the district court, respondent had not visited the
children since January 2004, twenty-seven months prior to the
termination hearing. See In re Apa, 59 N.C. App. 322, 324, 296
S.E.2d 811, 813 (1982) (“[O]n the question of neglect, the trial
judge may consider . . . a parent's complete failure to provide the
personal contact, love, and affection that inheres in the parental
relationship.”). Moreover, from the beginning of DSS's involvement
in her case in December 2000, respondent knowingly tied her hopes
for reunification to her relationship with J.E.M., insisting that
DSS treat them as a single family unit for purposes of the
placement plan. Despite her own progress in finding employment and
housing and completing parenting classes, J.E.M.'s ongoing
substance abuse and misconduct rendered respondent's home
environment unsafe, unstable, and inappropriate for the children.
The record further reflects that after making some progress toward
reunification in late 2002 and early 2003, respondent failed to
comply with court orders to participate in in-home family therapy,
to cooperate with A.N.J.'s therapist, to maintain regular
visitations with the children, and to complete the assertiveness
training recommended by her psychological evaluation. Beginning in
April 2003, she discontinued in-home therapy and stopped visiting
the children. When respondent resumed visitations in July 2003,
she was inconsistent with the children and uncooperative with DSS.
She refused to identify a man who was present in the home and
denied the Guardian ad Litem access to her home on one occasion.
Respondent failed to notify DSS of her change in residence aftermoving to Delaware in 2003. Although respondent testified that she
believed she was no longer allowed visitation after the court
changed the permanent plan from reunification to adoption in July
2003, her claim is belied by her occasional visitations through
January 2004, as well as Biaginni's unsuccessful efforts to arrange
visitations with her from February through April 2004.
We hold that respondent's conduct before and after the filing
of the termination petition was sufficient to establish both her
neglect of the children and a probability of future neglect under
N.C. Gen. Stat. § 7B-1111(a)(1). See In re Bishop, 92 N.C. App.
662, 669, 375 S.E.2d 676, 681 (1989). Accordingly, we overrule
this assignment of error. Because the district court properly
found grounds for termination rights under N.C. Gen. Stat. § 7B-
1111(a)(1), we need not review the second ground termination found
by the court under N.C. Gen. Stat. § 7B-1111(a)(2). See In re
Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990); In re
Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 132 (1982), appeal
dismissed, 459 U.S. 1139, 74 L. Ed. 2d 987 (1983).
Respondent also challenges the court's determination that
terminating her parental rights served the best interests of the
children. Having found grounds for termination under N.C. Gen.
Stat. § 7B-1111(a), the court was required at the dispositional
stage to terminate respondent's parental rights “unless . . . the
best interests of the juvenile require that the parental rights of
the parent not be terminated.” N.C. Gen. Stat. § 7B-1110(a)
(2006); In re Parker, 90 N.C. App. 423, 431, 368 S.E.2d 879, 884(1988). Once grounds for termination are shown, we will disturb a
district court's disposition under N.C. Gen. Stat. § 7B-1110 only
if it is “manifestly unsupported by reason.” In re J.A.A., __ N.C.
App. __, __, 623 S.E.2d 45, 51 (2005).
We find no abuse of discretion here. The court's emphasis on
the children's need for permanent placements was consistent with
the legislative intent expressed in N.C. Gen. Stat. § 7B-1100(2).
The fact that each of the four children were in a longstanding,
loving and stable placement with adoptive foster parents was
sufficient to support the court's conclusion that adoption was in
their best interest.
Based on the court's uncontested findings,
its decision to terminate respondent's parental rights in order to
facilitate the children's adoption was reasonable and proper.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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