Return to nccourts.org
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 20 March 2007
IN RE: Harnett County
M.S. No. 05 J 129
Appeal by respondent mother from order entered 26 September
2006 by Judge Jacquelyn L. Lee in Harnett County District Court.
Heard in the Court of Appeals 12 March 2007.
E. Marshall Woodall and Duncan B. McCormick, for petitioner-
appellee Harnett County Department of Social Services.
Elizabeth Boone, for guardian ad litem.
Susan J. Hall, for respondent-appellant.
M.P. (respondent) appeals from order entered terminating her
parental rights to her minor child, M.S. We affirm.
M.S. was born premature and tested positive for cocaine in her
body. Respondent and M.S.'s father, C.S., (C.S.) were living in
a boarding home where known drug users resided when M.S. was born.
On 19 July 2005, Harnett County Department of Social Services
(DSS) received a report alleging M.S. resided in an injurious
On 10 August 2005, DSS filed a juvenile petition which alleged
that M.S. was neglected and dependent. The trial court entered an
order of non-secure custody and placed M.S. in DSS' custody. M.S.
has resided in foster care since 22 August 2005. On or about 12 February 2006, a child support order directed
respondent to pay $56.00 per month in child care. Before the
termination of parental rights hearing, respondent paid a total of
$129.95 to DSS toward M.S.'s care. On 17 February 2006, M.S. was
adjudicated neglected and dependant.
On 24 February 2006, the trial court continued custody with
DSS, ordered efforts to reunite M.S. with respondent cease and
amended the plan to adoption. Respondent's last visit with M.S.
occurred on 16 March 2006.
On 19 May 2006, DSS filed a motion to terminate respondent's
and C.S.' parental rights. The motion alleged grounds for
termination pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) (neglect
and abuse), (3) (cost of care) and (7) (willfully abandoned). C.S.
failed to answer the motion.
On 11 August 2006, the trial court heard DSS' motion to
terminate parental rights. Neither parent was present at the
motion. Respondent's attorney stated respondent had notice of the
Social Worker Elaine Coley (Coley) testified she became
involved with M.S., respondent, and C.S. in September 2005. Coley
completed a family services case plan with respondent for her to
seek and obtain employment and housing and attend parenting and
substance abuse classes. Respondent failed to adhere to this plan.
Respondent had worked at the Family Dollar Store and earned $5.50
per hour and was currently working at McDonald's Restaurant. Coley
also stated respondent was currently on probation. The trial court entered findings of fact that respondent: (1)
failed to comply with the family services plan; (2) failed to pay
the reasonable cost of M.S.'s care; and (3) failed to show
appropriate parental concern for [M.S.] since December 9, 2005[.]
The trial court terminated respondent's parental rights pursuant to
N.C. Gen. Stat. §§ 7B-1111(a)(1) (neglect and abuse); (3) (failure
to pay reasonable portion M.S.'s expenses for six months); and (7)
(willful abandonment for at least six months immediately prior to
the filing of the motion). Respondent appeals.
Respondent contends the trial court's findings of fact are not
supported by clear, cogent, and convincing evidence and the trial
court abused its discretion by concluding M.S.'s best interest was
served by terminating respondent's parental rights.
III. Standard of Review
A proceeding to terminate parental rights is a
two step process with an adjudicatory stage
and a dispositional stage. A different
standard of review applies to each stage. In
the adjudicatory stage, the burden is on the
petitioner to prove by clear, cogent, and
convincing evidence that one of the grounds
for termination of parental rights set forth
in N.C. Gen. Stat. § 7B-1111(a) exists. The
standard for appellate review is whether the
trial court's findings of fact are supported
by clear, cogent, and convincing evidence and
whether those findings of fact support its
conclusions of law. Clear, cogent, and
convincing describes an evidentiary standard
stricter than a preponderance of the evidence,
but less stringent than proof beyond a
If the petitioner meets its burden of proving
at least one ground for termination of
parental rights exists under N.C. Gen. Stat. §7B-1111(a), the court proceeds to the
dispositional phase and determines whether
termination of parental rights is in the best
interests of the child. The standard of
review of the dispositional stage is whether
the trial court abused its discretion in
terminating parental rights.
In re C.C., J.C., 173 N.C. App. 375, 380-81, 618 S.E.2d 813, 817
(2005) (internal quotations and citations omitted). The trial
court's 'conclusions of law are reviewable de novo on appeal.' In
re D.M.M., ___ N.C. App. ___, ___, 633 S.E.2d 715, 716 (2006)
(quoting Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App.
332, 336, 477 S.E.2d 211, 215 (1996)).
Respondent argues the trial court's findings of fact are not
supported by clear, cogent, and convincing evidence.
The trial court found DSS presented clear, cogent, and
convincing evidence to support termination of respondent's parental
rights under N.C. Gen. Stat. §§ 7B-1111(a)(1), (3), and (7):
(a) The court may terminate the parental
rights upon a finding of one or more of the
(1) The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
. . . .
(3) The 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 forsuch period to pay a reasonable portion of the
cost of care for the juvenile although
physically and financially able to do so.
. . . .
(7) The parent has willfully abandoned the
juvenile for at least six consecutive months
immediately preceding the filing of the
petition or motion, or the parent has
voluntarily abandoned an infant pursuant to
G.S. 7B-500 for at least 60 consecutive days
immediately preceding the filing of the
petition or motion.
A neglected juvenile is defined as:
[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
In re Yocum
, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (quoting
N.C. Gen. Stat. § 7B-101(15)), aff'd per curiam
, 357 N.C. 568, 597
S.E.2d 674 (2003).
The court may conclude a child is neglected where a parent has
failed or is unable to adequately provide for the child's physical
and economic needs, and it is proved that the parent will not or is
not able to correct those inadequate conditions within a reasonable
time. In re Montgomery
, 311 N.C. 101, 109, 316 S.E.2d 246, 252
(1984). Neglect may also be proved by a parent's failure to
provide a stable living environment and proper food and clothing.
In re Adcock
, 69 N.C. App. 222, 225, 316 S.E.2d 347, 349 (1984).
The trial court entered the following findings of fact: 24. The juvenile was born premature and tested
positive for cocaine at her birth on .
25. The parents did not made [sic] appropriate
provisions for the juvenile's care upon
release from the hospital after her birth.
26. Upon discharge from the hospital, the
juvenile was placed on an apnea monitor and
was expected to need the same for
approximately six (6) months. The parents
lived in a boarding home where known drug
users resided and these people had caused
problems for the family. The parents' home
environment was not conducive to the special
needs of the juvenile.
. . . .
38. Since the December 2005 hearing, the
mother had failed to comply with or make any
real progress on the family services case
plan. The mother stated that she had no
transportation available and could not comply
with the plan of services.
. . . .
49. The mother has failed to show appropriate
parental concern for the juvenile since
December 9, 2005; she has failed to make any
plan for her care since her birth. She has
visited the juvenile but failed to prepare
herself to properly care for the juvenile who
is a special needs juvenile. She has a
history of breaking, entering and larceny and
is currently on probationary sentence. The
mother has attended several court sessions and
has been living with the father in Angier, NC
for some appreciable time. She has purchased
a care [sic] and a truck. Her failure to be
involved with and support the juvenile has
50. As indicated by the evidence and the
foregoing findings, the neglect of the
juvenile continues to the time of the hearing
and there is a likelihood that if she is
returned to the parents, the neglect would
Respondent only assigns error to and argues on appeal that the
trial court erred when it entered findings of fact numbered 52 and
56 and conclusion of law numbered 7. Assignments of error not set
out in the appellant's brief . . . will be taken as abandoned.
N.C.R. App. P. 28(b)(6) (2007). Unchallenged findings of fact are
binding on appeal. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127,
133, disc. rev. denied, 306 N.C. 565 (1982).
Clear, cogent, and convincing evidence shows respondent
neglected M.S. because: (1) M.S. tested positive for cocaine at
birth; (2) respondent failed to make appropriate provisions for
M.S. upon M.S.'s release from the hospital; (3) respondent resided
at a boarding home, where known drug users lived, was not
conductive to M.S.'s special needs; (4) respondent failed to make
reasonable progress on her family case plan; (5) respondent failed
to show appropriate parental concern for M.S.; and (6) respondent's
neglect of the juvenile continues and a likelihood exists that
neglect would continue if M.S. returned to respondent's custody.
Uncontested and binding findings of fact support the trial
court's conclusion that respondent neglected M.S. Because a
finding of any one of the enumerated grounds in N.C. Gen. Stat. §
7B-1111 is sufficient to support termination, we do not address
respondent's other grounds for termination. In re Pierce, 67 N.C.
App. 257, 263, 312 S.E.2d 900, 904 (1984).
B. Challenged Findings of Fact and Conclusions of Law
Respondent contends the trial court erred when it entered
findings of fact numbered 52 and 56 and conclusion of law numbered
7. Findings of fact numbered 52 and 56 state:
52. The juvenile was placed in a licensed
foster care home on August 22, 2005. As a
special needs baby, she was placed on an apnea
monitor at birth and has continued to need the
monitor until recently. The foster parents
engaged in special training at the hospital on
how to feed, bathe and care for the juvenile
and became proficient in the use of the apnea
monitor. The mother failed to participate
with this training.
56. It is in the best interest of the juvenile
that the parental rights of the parents be
Conclusion of law numbered 7 states:
7. It is in the best interests of the juvenile
to terminate the parental rights of the
At the trial court's termination of parental rights hearing,
Coley testified the hospital trained the foster parents to care for
M.S. using the apnea monitor, and to bathe and feed M.S. Coley
testified respondent began training for M.S.' care at the hospital
but the hospital staff asked her to leave due to her being
disruptive. Coley testified respondent refused to accept any
further training for M.S.'s care.
Coley's testimony provides clear, cogent, and convincing
evidence to support finding of fact numbered 52. The trial court
did not err when it entered finding of fact numbered 52. Clear,
cogent, and convincing evidence supports finding of fact numbered
56, which supports conclusion of law numbered 7. The trial court
did not err when it concluded it was in M.S.'s best interest toterminate respondent's parental rights. Respondent's assignment of
error is overruled.
Clear, cogent, and convincing evidence supports the trial
court's findings of fact that a statutory ground exists to
terminate respondent's parental rights. The trial court did not
abuse its discretion when it concluded M.S.'s best interest was
served by terminating respondent's parental rights. The trial
court's order terminating respondent's parental rights is affirmed.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***