IN RE: T.J.M.,
A Minor Juvenile. Burke County
No. 03 J 168
Stephen M. Schoeberle, for petitioner-appellee Burke County
Department of Social Services.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for respondent-appellant father.
On 23 September 2003, the Burke County Department of Social
Services (DSS) filed a juvenile petition alleging that the minor
child, T.J.M., and a minor sibling not a party to this appeal, were
dependent and neglected. In the petition, DSS alleged that the
juveniles were neglected on the grounds that they were present
during a domestic violence incident that occurred between the
mother of T.J.M. (respondent-mother) and respondent-mother's
boyfriend (Mr. Bennett), and that T.J.M. was struck in the eye by
Mr. Bennett during the altercation. The petition further alleged
that while respondent-mother had signed a safety agreement whereby
she agreed not to allow further contact between T.J.M. and Mr.Bennett, respondent-mother subsequently violated the agreement.
The petition additionally alleged that the children were dependent
because they were left without appropriate childcare when Mr.
Bennett was arrested for misdemeanor child abuse and respondent-
mother was arrested for failure to appear on other charges.
On 25 September 2003, the trial court gave DSS non-secure custody of the children. In its order granting non-secure custody, the trial court noted that respondent-appellant father, T.J.M.'s biological father (respondent), had not yet been served with the juvenile petition. However, respondent was thereafter served on 15 October 2003.
On 20 November 2003, the trial court conducted a hearing on the juvenile petition. On 26 November 2006, the trial court entered an adjudication and disposition order adjudicating the children as dependent and neglected. With respect to respondent, the trial court found that respondent and respondent-mother were involved in a thirteen-year abusive relationship, that respondent- mother had a long history of substance abuse, and that T.J.M. was born with cocaine in his system. The trial court also found that Mr. Bennett had met respondent and respondent-mother at a drug house where they used cocaine and alcohol and all participated in sexual acts while [T.J.M.] was present and asleep on the floor. The trial court further found:
7. [Respondent] was located with the help of the authorities in Florida. It is reported that he has been drunk every night in a motel, had a fight with a woman there and damaged a phone in the room during that fight. He has completed a psychological evaluation, but theresults are not available yet. He has declared his intention to relocate to North Carolina.
In the disposition portion of its order, the trial court continued custody of the children with DSS and ordered respondent, respondent-mother, and Mr. Bennett to comply with the recommendations of their psychological evaluations and to submit to random drug testing at the request of DSS. The trial court also ordered weekly, supervised visitation for each parent.
In a review order entered 19 May 2004, the trial court noted that the results of respondent's psychological evaluation revealed a diagnosis of poly-substance abuse and anti-social personality disorder. Referring to this diagnosis and similar diagnoses for respondent-mother and Mr. Bennett, the trial court found that [t]he odds are not favorable for long-term change . . . . In addition, the trial court noted that all of the parents had extensive histories of previous DSS involvement in their lives.
Nevertheless, the trial court found that respondent had visited regularly with T.J.M. and that the visits had gone well. The trial court further found that respondent had maintained employment, had attended Alcoholics Anonymous (AA) meetings six to ten times per week, had tested negative in all drug screens, and that a home study of his residence revealed no safety issues. The trial court additionally found that T.J.M. suffers from a kidney disorder, which requires regular treatment and periodic hospitalization. The trial court ordered that respondent have weekly unsupervised visitation with T.J.M. In its 18 February 2005 permanency planning order, the trial court found that for a period of fourteen months respondent had maintained employment and a residence, had continued to attend AA meetings daily, and had no positive alcohol or drug tests. The trial court further found that respondent continues to address his life-long substance abuse issues. The trial court increased respondent's unsupervised visitation period to Friday afternoon to Wednesday morning every other week. The trial court further ordered respondent not to consume alcohol or controlled substances during or within 48 hours of visitation and not to have any overnight guests or visits from women with whom he had a romantic relationship during visitation.
In a 7 April 2005 permanency planning order, the trial court found that respondent had made significant progress in dealing with his substance abuse issues and in maintaining stability, but he is at a high risk for relapse. Nevertheless, the trial court ordered that reunification of T.J.M. with respondent should be attempted and specifically approved DSS's placement of T.J.M. with respondent.
After T.J.M. had resided with respondent for approximately eight months, DSS removed T.J.M. from the respondent's home on 6 January 2006 as the result of respondent's testing positive for cocaine. Following a review hearing on 9 February 2006, the trial court found that while respondent had made a yeoman's effort to address his lengthy history of substance abuse, respondent had relapsed as indicated by both the positive cocaine test and hisfailure to report for other drug tests. The trial court also found that respondent's deterioration . . . coincided with his relationship with [S.T.], whom he met at an AA meeting and who had a history of cocaine abuse. The trial court further found that respondent had been less than forthright about residing with S.T., and that respondent had tried to persuade T.J.M. not to disclose that respondent had consumed beer or that he had permitted T.J.M. to have contact with respondent-mother. Based on these findings, the trial court concluded that it was in T.J.M.'s best interests to cease reunification efforts.
On 25 May 2006, DSS filed a petition to terminate, and on 12 January 2007, the trial court terminated respondent's parental rights. Respondent now appeals the termination.
On appeal, this Court must determine (1) whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence, and (2) whether the findings of fact support the trial court's conclusion of law that one or more of the statutory grounds set forth in N.C. Gen. Stat. § 7B-1111 for termination exists. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) .
We first address respondent's argument that the trial court erroneously terminated his parental rights on the ground that T.J.M. was neglected pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). For the purpose of this statute, neglected juvenile is defined in relevant part as:
A juvenile who does not receive proper care, supervision, or discipline from the juvenile'sparent, 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) (2005). In deciding whether a child is neglected for purposes of terminating parental rights, [t]he determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Termination, however, may not be based solely on past conditions that no longer exist. In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citation omitted). When a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, 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 Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citation omitted).
As an initial matter, we note that respondent has not assigned error to any of the specific findings of fact related to this ground for termination. Consequently, the trial court's findings of fact are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.). Accordingly, our review will be limited to whether the findingssupport the conclusions of law. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174 (2001). (See footnote 1)
With respect to the trial court's determination of neglect, the trial court made the following pertinent findings of fact:
3. Neither [respondent-mother] nor [respondent] are present in court today and neither has filed a responsive pleading. . . . [Respondent] has not appeared in court since June 1, 2006. He has had no contact with the Department, the guardian ad litem or his son since prior to that date. He apparently does maintain contact with his attorney, but his current address is unknown. [Respondent- mother] and [respondent] at this point apparently are indifferent to [T.J.M.] and his needs.
* * *
5. Both [respondent-mother] and [respondent]
have histories of poly-substance abuse and
domestic violence, and those are the primary
issues that gave rise to this case. Neither
is known to have completed, or currently to be
receiving, treatment or counseling for those
issues, therefore they are as serious today as
they were on September 23, 2003, when the
initial juvenile petition was filed. As a
result, there is a substantial likelihood that
the neglect that [the] Court found in its
adjudication order of November 20, 2003, would
be repeated were [T.J.M.] to be returned to
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