IN THE MATTER OF:
A.S. Wayne County
A.J.S. Nos. 04 J 220 and 221
E.B. Borden Parker for petitioner-appellee Wayne County
Department of Social Services.
Winifred H. Dillon for respondent-appellant.
CALABRIA, Judge.
Respondent-appellant M.S. (“respondent-mother”) appeals from
orders terminating her parental rights to A.S. and A.J.S.
(collectively “the minor children”) on the grounds of neglect. We
affirm.
On 14 October 2004
, the Wayne County Department of Social
Services (“DSS”) filed two juvenile petitions alleging that
A.S.
and A.J.S. were neglected and dependent. The petitions alleged
that
DSS substantiated reports in October 2003 that the parents,
respondent-mother and her husband (collectively “the parents”),
used drugs and did not provide proper care for the children. The
petitions further alleged that the children were exposed to
domestic violence and that the father was arrested for a domesticviolence assault against respondent-mother. Also, the petitions
alleged that as of October 2004, the family was “living place to
place with friends” and
both parents tested positive for marijuana.
The trial judge placed the minor children
in non-secure custody
with DSS. Subsequently, the minor children were placed in foster
care.
On 4 November 2004, the trial court entered an order
adjudicating the children neglected and dependent
. In the order,
the trial court found that respondent-mother and the father
admitted that A.S. and A.J.S. were neglected and dependent at the
time of the filing of the petitions
. The trial court ordered both
respondent-mother and the father to complete psychological
evaluations and substance abuse assessment
s and to comply with
recommendations. Also, respondent-mother and the father were
ordered to submit to random drug screens. The father was also
ordered to “attend and participate in domestic violence classes at
the Lighthouse of Wayne County, Inc.”
At a review hearing on 3 February 2005, the trial court found
that respondent-mother was currently employed but had not complied
with previous court orders. The respondent-mother was ordered to
submit to a substance abuse test on the date of the hearing. Also,
respondent-mother was ordered to comply with random drug tests, to
complete a psychological and substance abuse evaluation, and to
comply with all recommendations.
At a subsequent review hearing on 28 April 2005, the trial
court found that respondent-mother and the father had obtained psychological evaluations. The trial court also found that the
psychologist recommended a psychiatric evaluation for each parent
and recommended that each complete the requirements for a high
school diploma or a GED. At a 30 June 2005 hearing, the trial
court found that the parents had not complied with random drug
screens or completed substance abuse assessments. Also, the
parents had not obtained psychological evaluations. The trial
court ordered each parent to “go to Med Stat on this date when they
leave the Court for a drug test to be paid for by the Department of
Social Services.” The parents were also ordered to complete
psychiatric evaluations, submit to random drug screens, and
complete substance abuse assessments. Additionally, the parents
were ordered to complete the requirements for a GED and secure and
maintain stable housing and employment.
A permanency planning hearing was held on 21 December 2005,
wherein the trial court entered an order finding that respondent-
mother had successfully completed a parenting class. The trial
court also found that she had negative drug screens on three
separate occasions. Further, respondent-mother was actively
participating and progressing in her substance abuse therapy. The
trial court also found that respondent-mother visited with her
children regularly on a bi-weekly basis and that she was currently
employed. However, the trial court found that respondent-mother
was not pursuing her GED, had not completed a psychiatric
evaluation, and had not obtained stable housing. In addition,
neither parent was contributing to the support of the children. More importantly, respondent-mother stated she would not comply
with any court order that prevented the children from being in the
presence of the father. At the close of the hearing, the court
ordered that the permanent plan for the minor children was adoption
and termination of parental rights.
On 20 February 2006, DSS filed motions to terminate the
parental rights of both respondent-mother and the father based upon
neglect.
By separate orders filed 25 September 2006
, the trial
court terminated the parental rights
of respondent-mother and the
father.
Respondent-mother appeals.
The father did not file a
notice of appeal.
The termination of parental rights to minor children is a
two-step process that requires this Court to apply two separate
standards of review. First 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).
The standard of review for the adjudication phase of a termination
of parental rights is whether the trial court's findings of fact
are supported by clear, cogent, and convincing evidence and whether
the findings of fact support its conclusions of law. In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996).
“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.” N.C. State Bar v.
Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985). “A
finding of one statutory ground is sufficient to support thetermination of parental rights.” In re A.D.L., 169 N.C. App. 701,
710, 612 S.E.2d 639, 645 (2005).
In the dispositional phase, the trial court considers the best
interests of the child. We review this determination for an abuse
of discretion. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d
403, 407 (2003). 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). “So long as the findings of fact
support a conclusion based on [the statute], the order terminating
parental rights must be affirmed.” Oghenekevebe, 123 N.C. App. at
436, 473 S.E.2d at 395-96.
Respondent-mother argues the trial court's finding regarding
the likelihood of a repetition of neglect were not supported by
clear, cogent and convincing evidence. We disagree.
In its order, the trial court found that “it is probable that
the parents of the [minor children] will continue to act in a way
that would prevent the return of the [minor children] to them.”
The trial court also found that “[the parents'] actions indicate to
the Court that they have continued to neglect the [minor children]
and will most likely continue to neglect the [minor children] if
the [minor children are] returned to [the parents'] care.” These
findings were supported by clear, cogent and convincing evidence in
the record.
The minor children were removed from respondent-mother's care
because of substantiated reports that the minor children wereexposed to illegal drug use and to domestic violence. Although
respondent-mother had taken steps to resolve her substance abuse
issues and had made progress in that area, respondent-mother
continued to reside with the father who had not complied with any
of the court's orders. Not only had the father not completed a
domestic violence program to resolve some of the causes for the
removal of the minor children, he also continued to display
patterns of domestic violence by assaulting respondent-mother
during July of 2005. Additionally, the father had not completed a
substance abuse assessment and admitted to using controlled
substances as recently as December of 2005. Further, despite the
father's lack of progress, respondent-mother continued to reside
with him and stated that she would continue to care for him and
would not abide by a court order if it required her to prevent the
minor children from being in their father's presence. This
evidence alone support's the trial court's finding that it was
probable respondent-mother would continue to act in a manner that
would prevent her children from being returned to her.
Respondent-mother also contends the trial court's conclusion
that grounds existed to terminate her parental rights on the basis
of neglect was not supported by the findings of fact. We disagree.
Pursuant to N.C. Gen. Stat. § 7B-1111 (a)(1) (2005), a court
may terminate parental rights upon a finding that the parent has
neglected the child. Id. The definition of a neglected child, in
pertinent part, is one who “does not receive proper care,
supervision, or discipline . . . or who lives in an environmentinjurious to the juvenile's welfare.” N.C. Gen. Stat. § 7B-
101(15)(2005). In order for a parent's rights to be terminated on
the basis of neglect, the petitioner must prove by clear, cogent
and convincing evidence that evidence of neglect existed at the
time of the termination proceeding. In re Young, 346 N.C. 244,
248, 485 S.E.2d 612, 615 (1997). The dispositive question in
determining whether a child is neglected is the fitness of the
parent to care for the child at the time of the termination
proceeding. In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236,
242 (2005). Additionally, “a prior adjudication of neglect may be
admitted and considered by the trial court in ruling upon a later
petition to terminate parental rights on the ground of neglect.” In
re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).
However, when a child has not been in the parent's custody for a
significant period of time, “a trial court may find that grounds
for termination exist upon a showing of a history of neglect by the
parent and the probability of a repetition of neglect.” In re
L.O.K., 174 N.C. App. at 435, 621 S.E.2d at 242 (internal
quotations omitted).
Here, there is clear, cogent and convincing evidence that
respondent-mother neglected her children in the past and that
neglect would likely occur in the future. The evidence showed that
when DSS became involved, the children were not receiving proper
medical care and were exposed to domestic violence and illegal drug
use. The record indicates that respondent-mother eventually took
the necessary steps to comply with court orders. She completed apsychological evaluation, had a substance abuse evaluation and
attended substance abuse counseling, and tested negative during the
random drug screens. In addition, respondent-mother maintained
stable employment. However, respondent-mother continued to reside
with the father and expressed to DSS and GAL that she would not
abide by a court order that required her to keep the children away
from their father. At the time of the termination proceedings, the
father had not complied with court orders. He had not completed
random drug screens, attended domestic violence classes, or
obtained substance abuse counseling. Further, the father admitted
that he was using drugs in July of 2005 and that he assaulted
respondent-mother. The fact that respondent-mother insisted upon
continuing to live with the father who continued to be involved in
the same conduct that brought about the removal of the children
supports the trial court's conclusion that a probability of a
repetition of neglect existed.
Respondent-mother also argues several other findings of fact
made by the trial court were not supported by clear, cogent and
convincing evidence. Although several of the trial court's
findings were made regarding respondent-mother and the father
collectively, some of the findings were not applicable to
respondent-mother. We agree that these findings challenged by
respondent-mother were not supported by clear, cogent and
convincing evidence. However, we have already determined that the
trial court's finding regarding the probability of a repetition of
neglect was supported by clear, cogent and convincing evidence andthis finding supported the trial court's conclusion that grounds
existed to terminate respondent-mother's parental rights.
Upon careful review of the record and transcript, we hold that
the evidence of circumstances at the time of the hearing supports
the conclusion that there was a history of neglect by respondent-
mother and that the previous neglect was likely to reoccur. The
orders of the trial court terminating the parental rights of
respondent-mother is affirmed.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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