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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA07-245


Filed: 7 August 2007

                                Mecklenburg County
    M.G.                            No. 06 JT 784                            

    Appeal by respondent from order entered 18 December 2006 by Judge Louis Trosch in Mecklenburg County District Court. Heard in the Court of Appeals 11 June 2007.

    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.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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