Return to
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-985


Filed: 20 February 2007

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                            


    Appeal by respondent from order entered 8 May 2006 by Judge J.H. Corpening, II in New Hanover County District Court. Heard in the Court of Appeals 22 January 2007.

    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 __, 625 S.E.2d 203 (2006) (unpublished).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).

*** Converted from WordPerfect ***