IN THE MATTER OF:
E.F.M., E.L.M., Surry County
T.J.M. No. 05 J 81-83
H. Lee Merritt, Jr. for Surry County Department of Social
Services, petitioner-appellee.
Kilpatrick Stockton L.L.P., by Adam H. Charnes and N.
Dean Powell, Jr., for Guardian ad Litem.
Leslie R. Nydick for respondent-appellant.
MARTIN, Chief Judge.
Respondent appeals from judgments terminating her parental
rights as the mother of E.F.M., E.L.M., and T.J.M. We affirm.
The Surry County Department of Social Services (DSS) filed
juvenile petitions on 29 July 2005 alleging that E.F.M., E.L.M.,
and T.J.M. were neglected and dependent because of respondent's
chronic housing instability and respondent's inability “to support
her children or provide for their basic needs.” DSS took non-secure
custody of respondent's children that same day. By orders filed 15
September 2005, the trial court adjudicated the minor children
neglected and dependent based upon the facts alleged in thejuvenile petitions. The trial court ordered respondent to follow
DSS's recommendations and comply with the family services
agreement.
In May of 2006, DSS filed petitions to terminate the parental
rights of respondent as to each child alleging that she had: (1)
neglected the minor children, N.C. Gen. Stat. § 7B-1111(a)(1)
(2006), and (2) willfully failed to pay a reasonable portion of the
cost of care for the children, N.C. Gen. Stat. §7B-1111(a)(3)
(2006).
In its separate orders filed 17 November 2006, the trial court
concluded that based upon clear, cogent, and convincing evidence,
sufficient grounds existed for terminating the parental rights of
respondent in that the minor children were neglected and that
respondent failed to pay support for the minor children
.
Respondent appeals.
Respondent contends the trial court's conclusion that she
neglected her minor children is not supported by sufficient
competent evidence or findings of fact. We hold the evidence was
sufficient to support the trial court's findings which, in turn,
were sufficient to support the order terminating parental rights.
A termination of parental rights proceeding is conducted in
two phases: (1) the adjudication phase which is governed by
N.C.G.S. § 7B-1109 and (2) the disposition phase which is governed
by N.C.G.S. § 7B-1110. See In re Brim, 139 N.C. App. 733, 741, 535
S.E.2d 367, 371 (2000). During the adjudication stage, petitioner
has the burden of proof by clear, cogent, and convincing evidenceof the existence of one or more of the statutory grounds for
termination set forth in N.C.G.S. § 7B-1111. See N.C. Gen. Stat.
§ 7B-1109(e)-(f) (2006). The standard of appellate review is
whether the trial court's findings of fact are supported by clear,
cogent, and convincing evidence and whether the findings of fact
support the conclusions of law. In re Huff, 140 N.C. App. 288,
291, 536 S.E.2d 838, 840 (2000), disc. review denied and appeal
dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001).
If petitioner meets its burden of proof that grounds for
termination exist, the trial court then moves to the disposition
phase and must consider whether termination is in the best interest
of the child. See N.C. Gen. Stat. § 7B-1110(a) (2006). The trial
court has discretion, if it finds by clear, cogent, and convincing
evidence that at least one of the statutory grounds exists, to
terminate parental rights upon a finding that it would be in the
best interests of the child. In re Blackburn, 142 N.C. App. 607,
613, 543 S.E.2d 906, 910 (2001). The trial court's decision to
terminate parental rights is reviewed under an abuse of discretion
standard. In re Brim , 139 N.C. App. at 744, 535 S.E.2d at 373.
In this case, the trial court terminated respondent's parental
rights under 7B-1111(a)(1) based upon a finding that the minor
child was a “neglected juvenile”
within the meaning of N.C.G.S. §
7B-101. Section 7B-101(15) defines “neglected juvenile” as
follows:
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 providednecessary 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 . . . .
N.C. Gen. Stat. § 7B-101(15) (2006). To prove neglect in a
termination case, there must be clear and convincing evidence that
(1) the juvenile is neglected within the meaning of N.C.G.S.
7B-101(15), and (2) “the juvenile has sustained 'some physical,
mental, or emotional impairment . . . or [there is] a substantial
risk of such impairment'” as a consequence of the neglect. In re
Reyes, 136 N.C. App. 812, 814-15, 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)).
“A finding of neglect sufficient to terminate parental rights
must be based on evidence showing neglect at the time of the
termination proceeding.” In re Young, 346 N.C. 244, 248, 485
S.E.2d 612, 615 (1997). “Termination of parental rights for
neglect may not be based solely on past conditions which no longer
exist.” Id. “[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). If the
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, then “[t]he
trial court must also consider any evidence of changed conditions
in light of the evidence of prior neglect and the probability of arepetition of neglect.” Id. at 715, 319 S.E.2d at 232. Thus,
where “there is no evidence of neglect at the time of the
termination proceeding . . . parental rights may nonetheless be
terminated 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. 812, 814-15,
526 S.E.2d 499, 501 (2000).
In support of its conclusion that respondent's parental rights
should be terminated pursuant to N.C.G.S. § 7B-1111(a)(1), the
trial court entered the following pertinent findings of fact as to
each child:
13. [DSS] has worked with the respondent-
mother extensively since January 2002. [DSS]
has provided the respondent-mother with
services to help with housing, employment
skills, Medicaid benefits, and proper care for
her minor children.
14. Respondent-mother has a history of housing
instability for herself and the minor
children. The respondent-mother has had more
than thirty (30) different residences since
her oldest child, T.M., was born in August
1999. In July 2005, the respondent-mother did
not have a permanent residence and was
residing in a tent in Cana, Virginia. The
minor child, at that time, had been placed in
the care of a non-relative who was no longer
willing or able to provide care for the child.
Since July 2005, the respondent-mother has
resided at numerous locations with her
boyfriend. . . . From January 2006 until
August 2006, the respondent-mother and her
boyfriend resided in Claudeville, Virginia . .
. .
15. Respondent-mother entered into a family
services case plan with [DSS] on August 26,
2005. Respondent-mother, pursuant to theplan, agreed to maintain stable housing and
employment in order to be in a position to
have the minor child returned to her care.
Respondent-mother has failed to maintain
stable housing and, further, has failed to be
gainfully employed on a regular basis.
Respondent-mother was employed through Ablest
temporary services from late November 2005
until mid-January 2006. Respondent-mother has
not been employed since mid-January 2006.
Prior to the respondent-mother's injury to her
foot in June 2006, she was capable of being
employed on a regular basis. Respondent-
mother has had difficulty in finding
employment in the past. She does not have a
driver's license even though she is eligible
to obtain a driver's license. Respondent-
mother has not taken the steps necessary to
obtain her license even though she has been
encouraged to do so.
16. In June 2006, respondent-mother injured
her foot and ankle and, as such, since that
time she has not been physically able to be
employed. Based upon the testimony of the
respondent-mother, the court finds that she
has not been diligent in her efforts to seek
medical treatment for her injury.
17. Respondent-mother has been diagnosed with
a bi-polar disorder. Respondent-mother has
received treatment and counseling for the
mental disorder in the past. In the family
services case plan, respondent-mother agreed
to obtain an evaluation for her condition and
to follow the recommended treatment.
Respondent-mother did not seek treatment for
her condition until August 2006. In September
2006, respondent-mother was evaluated and has
attended several counseling sessions since
that date.
18. Respondent-mother, pursuant to the family
services case plan, was encouraged to maintain
a close bond and visit with the minor child on
a regular basis. Respondent-mother visited
with her children weekly from August 2005
until November 2005. Respondent-mother did
not visit with the children at all between
November 28, 2005, and December 28, 2005.
Since January 2006, respondent-mother has had
the opportunity to visit with the minorchildren at least on a monthly basis. She has
missed the scheduled visits for February,
April, and July 2006.
. . .
20. The minor child was adjudicated a
neglected child by order of this court on
September 1, 2005. Since that time,
respondent-mother has not been diligent in her
efforts to correct the conditions which
resulted in the minor child's being
adjudicated a neglected child. There is a
strong likelihood of future neglect on the
part of the respondent-mother in regard to her
minor children.
Respondent does not challenge any of the above findings and
they are presumed to be correct and supported by competent
evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133
(1982). In addition, a review of the record and transcript shows
that each of the trial court's findings is based upon competent
evidence, including orders entered in the case and testimony from
DSS social worker Wendy Harmon, guardian ad litem volunteer
Christopher Mooney and respondent herself. The prior adjudication
established the existence of prior neglect. Respondent's failure
to obtain appropriate housing, her failure to obtain appropriate
employment, and her lack of diligence in pursuing mental health
treatment
support the court's determination that there was a
probability that neglect would be repeated in the future. The
trial court thus properly considered both evidence of past neglect
by respondent, as well as evidence of conditions since that time
showing a likelihood of neglect in the future. We, therefore,
hold that the trial court's findings of fact were based on clear,cogent, and convincing evidence. We further hold that these
findings support the court's conclusion that grounds justifying
termination existed under N.C.G.S. § 7B-1111(a)(1). As only one
ground is necessary to support the termination, we need not address
whether evidence existed to support termination based on N.C.G.S.
§ 7B-1111(a)(3).
Respondent also contends the trial court erred by not
appointing her a guardian ad litem “knowing that respondent's
mental health issues and the [neglect] allegations were
intertwined.” Here, the trial court appointed a guardian ad litem
and attorney advocate to represent respondent in the termination
proceedings a month after DSS filed its petitions to terminate.
Respondent, however, argues that she should have been appointed a
guardian ad litem during the “critical, early stages of the
proceedings[.]”
In In re O.C.,
171 N.C. App. 457, 462, 615 S.E.2d 391, 394
(2005), this Court rejected respondent's argument that the trial
court's “failure to appoint a GAL for the dependency adjudication
proceedings occurring 19 months earlier” was grounds for reversing
a termination of parental rights order. This Court reasoned that
the issue of whether the trial court should have appointed a
guardian ad litem for the mother in a prior dependency proceeding
was not an issue before the court. Id. As in In re O.C., the
issue of appointing a guardian ad litem prior to the termination
proceedings in this case is not before this Court.
Therefore, this
assignment of error is overruled.
In conclusion, we find no prejudicial error in the proceeding
to terminate respondent's parental rights. The order entered by
the trial court is affirmed.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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