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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 July 2007
In The Matter of: Wilkes County
Nos. 04 J 105-107
B.D.H., J.L.S., & R.L.S.
Appeal by respondents from orders entered 16 November 2006 by
Judge David V. Byrd in Wilkes County District Court. Heard in the
Court of Appeals 11 June 2007.
Paul W. Freeman, Jr., for petitioner-appellee, Wilkes County
Department of Social Services.
Martin H. Brinkley, for Guardian Ad Litem Program.
Lisa Skinner Lefler, for respondent-mother.
Sofie W. Hosford, for respondent-father.
Randi S. (respondent-mother) appeals from orders of the
trial court terminating her parental rights to B.D.H., J.L.S., and
R.L.S. (the minor children). Scotty S. (respondent-father)
(collectively respondents) appeals from an order of the trial
court terminating his parental rights to R.L.S. We affirm.
Respondents are the biological parents of the minor child,
R.L.S. Respondent-mother is the biological mother of the minor
children B.D.H. and J.L.S. Jeffrey H. is the biological father of
B.D.H. and J.L.S., and is not a party to this appeal. On 15 July
2004, the Wilkes County Department of Social Services (DSS) filed
juvenile petitions alleging the minor children were neglected. Thepetition alleged that on 14 July 2004, a DMV officer found J.L.S.
wandering on a public street without adult supervision, dirty and
wearing only a diaper. The child was returned to the respondents
at their residence. The next day, a social worker visited
respondents' home and found the minor children in the home with
respondent-father asleep on the couch. The social worker attempted
to awaken respondent-father but failed. Respondents' home was
filthy, cluttered, and had no running water. The minor children
had not been bathed in several days. The social worker also
reported that the toilets were filled with feces, the front door
was nailed shut, and trash bags were open and overflowing. The
family had been involved in Case Management Services since 13
November 2003 after respondent-mother's probation officer found the
minor children alone in the home with no adult supervision. Also,
respondent-mother was found guilty of misdemeanor child abuse on 5
November 2003. The children were adjudicated neglected on 9
September 2004 and were placed in the custody of DSS. Respondents
were ordered to execute and successfully complete a family service
case plan as requested by DSS.
On 9 February 2006, DSS filed petitions to terminate
respondents' parental rights on the grounds of neglect, failure to
make reasonable progress, and failure to pay a portion of the
reasonable cost of care. On 17 November 2006, the trial court
terminated parental rights of the respondents and Jeffrey H. on the
grounds of neglect and failure to make reasonable progress. Fromthe orders terminating their parental rights, respondents appeal.
Jeffrey H. did not file notice of appeal.
Termination of parental rights involves a two-step process
under North Carolina law. First, a court must determine, based on
clear, cogent and convincing evidence, at least one statutory
ground under N.C. Gen. Stat. § 7B-1111 exists, and the burden of
proof is on the petitioner. Once one or more statutory grounds for
termination is established, the trial court enters the
dispositional phase where the court shall issue an order
terminating the parental rights unless it further determines that
the best interests of the child require otherwise. In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
I. Delay in Entry of Judgment
Initially, respondent-father contends the trial court's delay
in entering both the adjudicatory and dispositional order
prejudiced both him and R.L.S. We disagree.
North Carolina law requires both the adjudicatory and
dispositional orders be reduced to writing, signed and entered no
later than thirty days following the completion of the termination
of parental rights hearing. N.C. Gen. Stat. § 7B-1109(e); N.C.
Gen. Stat. § 7B-1110(a). However, a trial court's violation of
statutory time limits in a juvenile case is not reversible error
. . . [but] the complaining party must appropriately
articulate the prejudice arising from the delay in order to justify
reversal. In re S.N.H.
& L.J.H., 177 N.C. App. 82, 86, 627 S.E.2d
510, 513 (2006). Respondent-father argues he was prejudiced because he could
not appeal the termination order until it was entered by the court,
and he could not exercise visitation with his daughter.
We find respondent-father's first contention of prejudice
unpersuasive. In a strikingly similar case, we held there was no
prejudice in a delay of similar length to the respondent's right of
appeal because he was incarcerated at the time of the termination
order and was still incarcerated at the time the appeal was filed.
In re S.B.M.
, 173 N.C. App. 634, 635-36, 619 S.E.2d 583, 585
(2005). Also, in S.B.M.
, the respondent-father failed to keep
appointments concerning the child, failed to complete
court-ordered treatment, and his last contact with the child was
almost a year before he was incarcerated. Id
. at 635, 619 S.E.2d
at 584. In our case, respondent-father failed to complete
substance abuse classes, made only two of seven scheduled visits
with the child, and his last contact with R.L.S. was in December of
2005 - eight months before the hearing. Although respondent-father
was incarcerated during that time, he presented no evidence that he
made any phone calls to, sent any letters to, or had any other
contact with his daughter until April 2006. Accordingly,
respondent-father has not shown that he was prejudiced by the trial
court's delay in entering the adjudication and disposition orders.
II. Lack of Complete Transcript
Additionally, respondent-father contends the lack of a
complete transcript of the termination hearing prejudiced him inthat it deprived him of meaningful appellate review, which he
contends should result in a new trial. We disagree.
Pursuant to N.C. Gen. Stat. § 7B-806, all adjudicatory and
dispositional [termination] hearings shall be recorded by
stenographic notes or by electronic or mechanical means. N.C.G.S.
§ 7B-806 (2001). In order to prevail on an assignment of error
under the statute, a party must also show the failure to record
the evidence resulted in prejudice to that party. In re Clark,
159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003). Further,
[g]eneral allegations of prejudice are insufficient to show
reversible error resulting from gaps in the recording. In re
L.O.K., J.K.W., T.L.W. & T.L.W., 174 N.C. App. 426, 437, 621 S.E.2d
236, 243 (2005).
In our case, respondent-father failed to show any specific
evidence missing from the transcript or specific errors in the
transcript. Further, he failed to show prejudice by such omissions
or errors. When a complete transcript is unavailable, a party may
use other means to compile a narration of the evidence, such as
reconstructing the testimony with the assistance of those persons
present at the hearing. Miller v. Miller, 92 N.C. App. 351, 354,
374 S.E.2d 467, 469 (1988). Any disputes among the parties
regarding the content of testimony, objections, or rulings can be
resolved by the trial judge in settling the record on appeal. In
re L.O.K., J.K.W., T.L.W. & T.L.W., 174 N.C. App. at 437, 621
S.E.2d at 243. In our case, respondent-father has made no attempt
to compile a narration of the evidence using other means. Moreover, on 2 February 2007, respondent-father stipulated the
stenographic transcript of the proceedings . . . is an accurate
transcription of proceedings as recorded and shall be part of the
Record on Appeal[.] Accordingly, respondent-father's argument
here is dismissed.
Respondents collectively argue the trial court erred by
terminating their parental rights on the grounds of neglect. We
A trial court may terminate parental rights upon finding the
parent has neglected the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1)
(2006). Section 7B-101(15) defines neglected juvenile 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 lives in an
environment injurious to the juvenile's welfare[.] N.C. Gen.
Stat. § 7B-101(15) (2006). To prove neglect in a termination case,
there must be clear, cogent, and convincing evidence the juvenile
is neglected under N.C. Gen. Stat. § 7B-101(15) and the juvenile
has sustained 'some physical, mental, or emotional impairment . .
. or [there is] a substantial risk of such impairment as a
consequence' of such neglect. In re Reyes, 136 N.C. App. 812,
814, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C.
App. 747, 752, 436 S.E.2d 898, 901-02 (1993)).
Neglect must be shown at the time of the termination
proceeding. In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). Past neglect may be a factor used to terminate parental
rights, but it cannot be the sole factor. Id. (see also In re
Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). If a
child has been removed from the parents' custody before the
termination hearing, and the petitioner presents evidence of prior
neglect, including an adjudication of such neglect, the trial court
must also consider any evidence of prior neglect and the
probability of a repetition of neglect. Id. at 715, 319 S.E.2d at
232. Therefore, even if there is no evidence of neglect at the
time of the termination hearing, the trial court can terminate the
parents' rights if there is a showing of a past adjudication of
neglect and the trial court finds by clear and convincing evidence
a probability of repetition of neglect if the juvenile were
returned to [his or] her parents. In re Reyes, 136 N.C. App. at
815, 526 S.E.2d at 501.
In the case before us, the minor children were adjudicated
neglected on 9 September 2004. The trial court noted this in its
findings, and respondents did not assign error to this. The trial
court also made findings of fact regarding the likelihood of a
repetition of neglect, and these findings were supported by clear,
cogent, and convincing evidence. The trial court made the
22. [Due to] the parents' lack of interest,
and progress, continued problems with drug
abuse, continued involvement with law
enforcement, and continued instability of
residence and employment, it is likely that
should the child[ren] be returned to the home
of the parents, the original acts of neglect
or similar actions would recur.
. . .
32. There is a high likelihood of repetition
As to respondent-mother, these finding are supported by the
testimony of the DSS social worker, Deborah Koen (Ms. Koen). Ms.
Koen testified that respondent-mother had very little contact with
the minor children and had not recently provided them gifts, cards,
or letters. Also, respondent-mother testified she had been
incarcerated more than once since the minor children were born, and
she had several pending criminal charges. She further testified
she changed jobs and residences frequently, and lived with
different men who were not the father of the children.
Additionally, she admitted to using marijuana two months before the
termination hearing, and admitted to using cocaine approximately
six months prior to the hearing.
As to respondent-father, the evidence supporting the trial
court's findings can be found from his own testimony in which he
stated he had not sent cards, letters, or gifts to R.L.S. prior to
April 2006 while in prison. He also stated he missed several
visits, even during the times he was not incarcerated. Ms. Koen
testified she had not even seen respondent-father until the day of
the termination hearing. Respondent-father abused alcohol and
cocaine and only completed some substance abuse classes.
Further, evidence was presented showing respondent-father had a
persistent problem with the law. Respondent-father has not
graduated high school or obtained a GED, does not have a driver's
license, and presented no evidence showing he has securedemployment upon his release from incarceration. Respondents' drug
use, lack of stability in employment and housing, persistent
involvement with law enforcement, and failure to complete the
Family Service Case Plan supported the court's determination the
minor children were neglected and there was a strong likelihood of
neglect in the future. Therefore, this assignment of error is
IV. Failure to Make Reasonable Progress
Respondents next contend the trial court erred in terminating
their parental rights based on their failure to make reasonable
progress. We disagree.
Respondents contend their actions were not willful, and urge
this Court to adopt a different view of what constitutes willful
behavior. We cannot agree with respondents' contentions. This
Court has consistently held willfulness under § 7B-1111(a)(2) is
something less than willful abandonment. In re Nolen, 117 N.C.
App. 693, 699, 453 S.E.2d 220, 224 (1995). A parent's
willfulness in leaving a child in foster care may be established
by evidence that the parents possessed the ability to make
reasonable progress, but were unwilling to make an effort. In re
Baker, 158 N.C. App. 491, 494, 581 S.E.2d 144, 146 (2003).
In the case before us, respondents have failed to
significantly improve the conditions leading to the children's
removal. The evidence shows respondents failed to obtain stable
employment, failed to obtain stable housing, and failed to correct
persistent problems with law enforcement. Moreover, the minorchildren were removed due to respondents' substance abuse. Even
though respondents were enrolled in substance abuse classes,
respondents failed to complete such classes, and continued to
struggle with substance abuse. This clearly shows respondents had
programs available to help them with their substance abuse problem,
but failed to take advantage of the programs. As we have stated
previously, [e]xtremely limited progress is not reasonable
progress. In re Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25
(1995). Respondents' lack of action clearly supports a finding of
willfulness by the trial court.
Thus, we hold the trial court's findings of fact were
supported by clear, cogent, and convincing evidence. We further
hold these findings support the court's conclusion that grounds for
termination of respondents' parental rights existed.
Although respondents argue the trial court's order should be
reversed for not accurately reflecting the oral order, [T]he
finding of any one of the grounds (under N.C. Gen. Stat. §
7B-1111(a)) is sufficient to order termination. Owenby v. Young,
357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003). Thus, while the
trial court did not find sufficient grounds for terminating
respondents' parental rights based on their failure to pay a
portion of the reasonable cost of care, the trial court did find
sufficient grounds for termination based on neglect and failure to
make reasonable progress. Therefore, respondents' argument must be
V. Best Interests of the Children
Respondents contend the trial court abused its discretion in
finding it would be in the minor children's best interests to
terminate respondents' parental rights. After the trial court has
determined grounds exist for termination of parental rights at
adjudication, the court is required to issue an order of
termination . . . unless it finds the best interests of the child
would be to preserve the parent's rights. In re Blackburn,
N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). Once a ground for
termination has been established, the presumption is for the
issuance of a termination order. Id.
However, where there is
reasonable hope that the family unit within a reasonable period of
time can reunite and provide for the emotional and physical welfare
of the child, the trial court is given discretion not to terminate
In our case, the evidence clearly shows there is no reasonable
hope of reunification within a reasonable time and no reasonable
hope respondents can provide for the children's needs. Respondents
are frequently in trouble with the law, and both have been recently
incarcerated. Respondents frequently change jobs. Respondents
frequently change residences. Not only do they not currently live
together, but each testified to having recently had live-in
paramours. Further, respondents have presented no evidence showing
either of them has successfully completed substance abuse programs
or has lived for a significant period of time without abusing
illegal drugs. Respondents presented no evidence they are willingand able to care for the minor children. Respondents produced no
evidence they are likely to make appropriate choices as to the
welfare of the minor children. Additionally, the minor children
live with foster parents who are willing and able to care for them,
and who wish to adopt them. The foster parents are relatives of
respondent-father, and the children have stated they wish to remain
with the foster parents and be adopted by them. In our case,
[t]here [is] nothing upon which the trial court could reasonably
base a decision to find it would not
be in [the minor children's]
best interests to terminate parental rights. Id.
at 614, 543
S.E.2d at 911. Therefore, the trial court did not abuse its
discretion by concluding it was in the best interests of the minor
children for respondents' parental rights to be terminated.
Reviewing a termination of parental rights is an action this
Court conducts with utmost scrutiny and care. It is not an act to
be taken lightly. After careful consideration of the record on
appeal and the briefs of all the parties, we affirm the trial
court's order terminating respondent-mother's parental rights to
B.D.H., J.L.S., and R.L.S., and terminating respondent-father's
parental rights to R.L.S.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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