IN THE MATTER OF:
Mecklenburg County
M.G. No. 06 JT 784
Tyrone C. Wade, for petitioner-appellee, Mecklenburg County
Department of Social Services, Division of Youth and Family
Services.
Pamela Newell Williams, for North Carolina Guardian Ad Litem
Program.
Janna D. Allison, for respondent-appellant.
CALABRIA, Judge.
T.G. (“respondent”) appeals from an order of the Mecklenburg
County District Court terminating her parental rights with respect
to her minor child (“M.G.”). We affirm.
The Mecklenburg County Department of Social Services (“DSS”
also referred to as “MYFS”) filed a juvenile petition on 17 August
2005 alleging that M.G. was neglected and dependent because M.G.
tested positive for cocaine at her birth and because of
respondent's history of substance abuse. That same day, M.G. was
placed in non-secure custody with DSS. On 14 November 2005,
respondent stipulated to the facts set out in the juvenile petition
and the trial court adjudicated M.G. neglected and dependent as torespondent. In the adjudication and disposition order, the trial
court ordered respondent to comply with the Family Services
Agreement, which included, inter alia, respondent obtaining a
substance abuse assessment and being “drug and alcohol free.” On
30 June 2006, DSS filed a petition to terminate the parental rights
of respondent and the unknown father alleging that M.G. was
neglected. The trial court concluded that based upon clear, cogent,
and convincing evidence, sufficient grounds existed for terminating
the parental rights of respondent in that M.G. was neglected
pursuant to N.C. Gen. Stat. § 7B-1111 (a) (1) (2006). Respondent
appeals. The trial court also terminated the parental rights of
the unknown father, who is not a party to this appeal.
Respondent contends the trial court erred in terminating her
parental rights because while she was in custody for a short period
of time, the minor child was in the custody of DSS.
Respondent cites In re P.L.P, 173 N.C. App. 1, 10, 618 S.E.2d
241, 247 (2005) (quoting In re Yocum, 158 N.C. App.. 198, 207-08,
580 S.E.2d 399, 405 (2003)) as support for her argument.
“Incarceration, standing alone, is neither a sword nor a shield in
a termination of parental rights decision.” Id. However,
respondent misses completely this Court's interpretation of
incarceration as a factor in terminating parental rights due to
neglect.
In the case before us, the trial court properly concluded
grounds existed for terminating respondent's parental rights not
solely because respondent was incarcerated, but because there wasa prior adjudication of neglect, and because there was no “evidence
of changed circumstances and [a] probability of a repetition of
neglect.” In re J.G.B., 177 N.C. App. 375, 382, 628 S.E.2d 450,
455 (2006). In the case before us, there is no evidence respondent
changed her circumstances. During respondent's incarceration, she
failed to contact M.G., and failed to avail herself of any
resources designed to assist her in correcting her substance abuse
problem and in developing her parenting skills. More importantly,
the trial court stated that, upon her release, there was a
probability of repetition of neglect because respondent failed to
obtain substance abuse treatment, failed to maintain stable
housing, failed to maintain contact with DSS, failed to complete
required assessments offered through DSS, failed to obtain stable
employment, and made no attempt to provide love, care, or personal
contact with the minor child.
A trial court may terminate parental rights upon a finding
that “[t]he parent has . . . neglected the juvenile. The juvenile
shall be deemed to be . . . neglected if the court finds the
juvenile to be . . . a neglected juvenile within the meaning of
G.S. 7B-101.” N.C. Gen. Stat. § 7B-1111 (a) (1) (2006). Section
7B-101 (15) defines a “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 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. . . .
N.C. Gen. Stat. § 7B-101 (15) (2006).
“To prove neglect in a termination case, there must be clear,
cogent, and convincing evidence (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 Beasley, 147 N.C. App. 399, 403, 555 S.E.2d
643, 646 (2001) (citation and internal quotations omitted).
“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. However, “[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 a repetition 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 adjudicationof 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, 815, 526 S.E.2d 499, 501 (2000).
The trial court entered the following findings to support its
conclusion that respondent's parental rights should be terminated
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1):
9. The child tested positive for cocaine at
birth. The mother was so impaired at the
child's birth that she could not feel any
pain. Her mind was foggy when she held the
child for the first time.
10. The mother left the child with an
acquaintance she had met at the end of her
pregnancy. MYFS located the child when that
acquaintance applied for food stamps using the
child's name. The acquaintance reported she
had met the mother and offered to care for the
child. At the time the petition was filed the
acquaintance did not know the mother's
whereabouts and had not received any support
from the mother to care for the child.
11. The petition alleging neglect and
dependency was filed on August 17, 2005 and
the mother was subsequently located in jail.
12. The mother failed to appear at the initial
7 day hearing. At that time her whereabouts
were unknown.
13. The mother stipulated to the allegations
contained in the petition . . . and the child
was adjudicated neglected and dependent. The
issues identified by the court at that time
were substance abuse, lack of stable housing,
lack of parenting skills, lack of employment,
the mother's ability to meet and provide for
the needs of her child and the mother's
criminal activity.
14. At the time of the adjudication, the
mother was incarcerated in the Mecklenburg
county jail. During this period ofincarceration, the mother did not avail
herself of any programs.
15. On October 14, 2005, the mother was
ordered to participate in a screening through
the Mecklenburg County F.I.R.S.T. program,
which would include substance abuse, mental
health, and domestic violence. She was to
follow all recommendations. She was also to
participate in random drug screens and remain
drug and alcohol free. . . .
. . .
17. The mother was held at the Mecklenburg
County jail from August 30, 2005 through
November 19, 2005, when she was sent to the
North Carolina Department of Corrections.
18. The mother was released from the North
Carolina Department of Corrections on February
11, 2006. The mother failed to contact the
MYFS upon her release from prison. The
assigned social worker accepted a collect call
prior to her release and made arrangements to
meet her and had scheduled her F.I.R.S.T.
assessment.
19. The mother did not submit to a F.I.R.S.T.
assessment upon her release from prison. She
did not meet the social worker as scheduled.
The mother fell back into abusing substances
following her release from prison.
20. A Review Hearing was conducted on May 2,
2006. The court found that the mother had not
made progress, she had not visited the
juvenile, nor had she inquired as to the
juvenile's status. At the time of the
hearing, the mother's whereabouts were
unknown.
21. The mother was committed to the
Mecklenburg County jail again from May 30,
2006 through June 19, 2006 for charges of
misdemeanor possession of stolen goods and
uttering a forged instrument.
22. The mother was committed to the
Mecklenburg County jail on July 9, 2006 and
was still incarcerated at the time of this
hearing for charges of robbery with adangerous weapon, conspiracy to commit
robbery, second degree kidnapping, possession
of stolen vehicle and habitual felon.
. . .
25. Since the time of her initial release from
prison in February 2006, the mother failed to
provide verification to MYFS of any employment
or her attempts at securing employment. The
mother admitted in her Answer that she was
required to obtain and maintain employment
upon her release from prison but had failed to
do so.
26. Since the time of her initial release from
prison in February 2006, the mother failed to
provide verification that she had secured
adequate housing. The mother failed to provide
an address or a contact number to MYFS from
her release in February 2006 through her most
recent incarceration in July 2006. The mother
admitted in her Answer that she was ordered to
obtain and maintain independent housing but
had not done so.
27. Since the time of her initial release
from prison in February 2006, the mother
failed to provide verification of her
attendance in parenting classes. While she
has indicated that she attended parenting
classes while in jail, she did not provide any
information as to what the classes included or
what she learned from those classes.
28. Since July 9, 2006, the mother has never
written the assigned social worker to inquire
as to her child's well-being. The mother has
never maintained or attempted to maintain
contact with MYFS.
30. The mother has pled guilty to false
pretense and is awaiting sentencing.
. . .
33. During the time the mother was not being
held on charges or imprisoned, her situation
was worse than when the child was initially
placed in custody. She had time to maintain
sobriety; however, she went right back to the
same lifestyle, which is not conducive tobeing a parent. The mother is still in need
of substance abuse treatment, which she has
never received.
. . .
34. Since her most recent incarceration in
July 2006, the mother engaged in an
altercation with another inmate resulting in
disciplinary action against her. As a result
of her disciplinary action, she was placed in
the “hole” and could not avail herself of
programs until after 60 days with good
behavior had elapsed.
Since respondent has not assigned error to these findings of
fact, the findings are presumed to be correct and supported by
clear, cogent, and convincing 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 clear, cogent, and convincing evidence, including
orders entered in the case and testimony from DSS social worker
Kamala Williams and respondent. The prior adjudication established
the existence of neglect. Respondent's choice to continue using
drugs, her failure to obtain employment, her failure to inquire
about her child's well-being, and her failure to participate in
F.I.R.S.T. as ordered by the court, supported the court's
determination that there was a probability that neglect would be
repeated in the future. The trial court thus properly considered
evidence of respondent's past neglect, as well as evidence of
conditions since that time showing a likelihood of neglect in the
future.
Therefore, we hold that the trial court's findings of fact
were based on clear, cogent, and convincing evidence. We furtherhold that these findings support the court's conclusion that
grounds justifying termination existed under N.C. Gen. Stat. §
7B-1111 (a) (1). See, e.g., In re Leftwich, 135 N.C. App. 67, 518
S.E.2d 799 (1999) (trial court properly found neglect when
respondent mother had not made meaningful progress in improving her
lifestyle, including continuing to abuse alcohol). Accordingly, we
affirm the trial court's order terminating respondent's parental
rights to her daughter.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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