NO. COA06-1030

NORTH CAROLINA COURT OF APPEALS

Filed: 7 August 2007

    Appeal by respondent mother from judgment entered 23 January 2006 by Judge C. Thomas Edwards in Burke County District Court. Heard in the Court of Appeals 8 February 2007.

    Stephen M. Schoeberle for Burke County Department of Social Services; Mary R. McKay, attorney-advocate for J.L.B.

    Richard Croutharmel for appellant-respondent.

    CALABRIA, Judge.

    Respondent mother Christine B. (“Christine”) appeals from an order terminating her parental rights to J.L.B. (“the minor child”). Although the trial court also terminated the parental rights of the biological father (“Mr. B.”), he has not appealed from that order and is not a party to the instant case. We affirm.
    On 10 August 2003, the minor child, then six months old, was present in a vehicle with Christine and Mr. B., who were also the mother and stepfather of T.J.M. (“T.J.M.”), a four-year-old child. Christine and Mr. B. assaulted each other in the presence of the children and Mr. B. later struck T.J.M. in the eye. On 19September 2003, police arrested both parents for the assaults and other unrelated charges. That same day, both children were taken into nonsecure custody by Burke County Department of Social Services (“D.S.S.”).
    Following a 20 November 2003 hearing, the trial court adjudicated both children neglected and ordered both parents to comply with the recommendations of their psychological evaluations, which included submitting to random drug testing and participating in supervised visitation with the children. Christine subsequently gave birth to another child, J.B. (“J.B.”). On 21 July 2004, Cabarrus County D.S.S. removed J.B. from Christine's custody.
    Cabarrus County D.S.S. subsequently filed a motion to terminate the parental rights of Christine and Mr. B. to J.B. on several grounds. The petition alleged that two grounds existed to terminate Christine's parental rights. It alleged that she neglected the minor child and that she left the child in foster care or placement outside the home for more than 12 months without showing reasonable progress. Following a hearing on 1 and 2 December 2005, District Court Judge Donna H. Johnson entered an order on 9 December 2005 terminating Christine's parental rights to J.B. The grounds for termination were the same as those alleged by D.S.S.    The Burke County D.S.S. on 7 September 2005 filed a motion to terminate Christine's parental rights to J.L.B. The trial court heard the motion on 9 and 12 January 2006. On 9 January 2006, Burke County D.S.S. orally amended its motion to include the additional ground for termination, that Christine's parental rights with respect to another child had been terminated by a court of competent jurisdiction and she lacked the willingness to provide a safe home for the child in the present action. The trial court continued the matter until 12 January 2006 to allow Christine time to prepare a defense to the additional ground alleged in the motion. Following the 12 January hearing, the trial court ordered the termination of Christine's parental rights on all grounds alleged in the motion. From the written order entered on 23 January 2006, Christine appeals.
    Termination of parental rights is a two-step process that requires this Court to apply two separate standards of review. There is an adjudicatory phase, governed by N.C. Gen. Stat. § 7B-1109(e) (2005), followed by a dispositional phase, governed by N.C. Gen. Stat. § 7B-1110 (2005). Findings made by the trial court in the adjudicatory phase must be supported by clear, cogent, and convincing evidence, and the findings must support a conclusion that at least one statutory ground for termination of parental rights exists. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d403, 406 (2003). “Clear, cogent and convincing evidence describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” The N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985).
    In the dispositional phase, the trial court considers the best interests of the child. We review this determination for an abuse of discretion. Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407. Reversal for abuse of discretion is limited to instances where the appellant can show the judge's decision is “manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
    Christine argues that certain findings of fact found by the trial court are unsupported by clear, cogent, and convincing evidence and that the trial court abused its discretion in terminating her parental rights. We disagree.
    Here, the trial court found that Christine “has neglected the minor child, and failed to adequately address her substance abuse and domestic violence issues.” As a result of these findings, the trial court found that if the minor child was returned to her, there was a substantial likelihood that the neglect would be repeated. The court also found that Christine “willfully left the minor child in foster care for more than 12 months without showingto the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the minor child.” It further found that Christine's “parental rights with respect to another child. . . have been terminated involuntarily by a court of competent jurisdiction and she lacks the willingness to establish a safe home.” N.C. Gen. Stat. § 7B-1111(9) (2005). Because we determine that there was clear, cogent, and convincing evidence to support the first two grounds, we need not address the issue of whether the trial court properly allowed D.S.S. to amend the petition.
    In terminating Christine's parental rights, the trial court found that Christine had neglected J.L.B. and that she had willfully left the minor child in foster care or placement outside the home for more than 12 months without showing reasonable progress. N.C. Gen. Stat. . 7B-1111(a)(1) (2005) (allowing termination for neglect); N.C. Gen. Stat. . 7B-1111(a)(2) (2005) (allowing termination for willfully leaving the minor child in foster care or placement outside the home for more than 12 months without showing reasonable progress).
    We first consider whether there was evidence to support the finding that Christine willfully left the minor child in foster care for more than 12 months without showing reasonable progress. After reviewing the record, we determine there was sufficient evidence.
    North Carolina General Statute . 7B-1111(a)(2) states:
        The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
Id.
    Amy Fairchild (“Fairchild”), an investigator for child protective services of Burke County, testified that J.L.B. had been in the continuous custody of the D.S.S. since September of 2003, a period of more than two years prior to the 12 January 2006 hearing. Fairchild's testimony provides clear, cogent, and convincing evidence that the minor child had been placed out of the home for a period exceeding 12 months. The only remaining questions are whether there was ample evidence to support the finding that she willfully left the child in foster care during that time, and whether she failed to make reasonable progress.
    In Judge Edwards' 23 January 2006 order terminating Christine's parental rights, he found that the serious domestic violence and substance abuse issues giving rise to D.S.S.'s initialconcerns remained unaddressed. In finding of fact 16, Judge Edwards found, “Substance abuse and domestic violence issues remain as serious today as they were on September 23, 2003, when the initial juvenile petition was filed.” This finding of fact was not assigned as error and is thus binding on this court. “Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
    The other witness to testify at the 12 January 2006 hearing was Cynthia Bellas (“Bellas”), the guardian ad litem program supervisor. Bellas testified that she had only seen Christine “once or twice,” and that Christine had not called her office to inquire about the status of the child. Bellas stated that Christine had not called to report any type of remedial programs she might be involved in, and that Bellas did not know Christine's whereabouts.
    Bellas' testimony was bolstered by Fairchild, who stated that she was unaware of any contact between Christine and the social workers assigned to J.L.B.'s case. Christine points out that neither Bellas nor Fairchild were the social workers assigned to the case, and that they lacked personal knowledge of the status of the case. Christine is correct in that the social worker assignedto J.L.B.'s case, Connie Freeze, was out sick on the day of the 12 January 2006 hearing and did not attend. However, Fairchild testified that she is a member of the team assigned to J.L.B.'s case and was personally familiar with the case's status. She stated,
        What I can say is that during team staffing and permanency planning in regards to this case that the whole team is involved in, I have no knowledge that [Christine] or Mr. [B.] have been in contact with the agency or have been taking part in any type of AA or other parenting classes or such requested to help bring their child back home.

    The testimony of Bellas and Fairchild, as well as the facts found in finding of fact 16, establishes that Christine was not actively involved in reunification efforts and had failed to participate in substance abuse treatment and parenting classes required for reunification. This supports a finding that Christine willfully left the child in foster care and that Christine failed to make reasonable progress in the conditions that led to the child's removal. As such, there were grounds to support the trial court's decision to terminate Christine's parental rights under N.C. Gen. Stat. . 7B-1111(a)(2).
    Further, this evidence also supports the trial court's finding that Christine's parental rights should be terminated based onneglect, pursuant to N.C. Gen. Stat. . 7B-1111(a)(1). A neglected juvenile is defined by our statutes 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; 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). Christine's failure to maintain contact with D.S.S. and her failure to participate in remedial programs establishes her lack of interest in the minor child's progress and supports a finding that Christine neglected the minor child. We need not consider Christine's argument that the trial court failed to make adequate findings of fact by incorporating prior orders where a standard less than clear, cogent, and convincing evidence was used because we determine that finding of fact 16, which is not challenged, coupled with the testimony of Fairchild and Bellas, supports the grounds for termination.    Since the trial court properly found statutory grounds to support terminating Christine's parental rights, we now review the dispositional phase to determine whether the trial court abused its discretion by terminating Christine's parental rights. As previously stated, an abuse of discretion occurs where the judge's decision is “manifestly unsupported by reason.”
    We conclude that the trial court did not abuse its discretion in determining that it was in J.L.B.'s best interests to terminate Christine's parental rights. The court reasonably believed that the child's best interests would be served by the termination and by continuing the child's placement in his current foster home. Accordingly, the judgment of the trial court shall remain undisturbed.
    Affirmed.
    Judges McGEE and STEPHENS concur.
    Report per Rule 30(e).

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