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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 August 2007
IN THE MATTER OF:
D.Q.M.D. New Hanover County
M.D.D. Nos. 06 J 423, 06 J 424, 06 J 425
Appeal by respondent mother from order entered 17 January 2007
by Judge J.H. Corpening, II, in New Hanover County District Court.
Heard in the Court of Appeals 30 July 2007.
Dean W. Hollandsworth, for petitioner-appellee New Hanover
County Department of Social Services.
Pamela Newell Williams, for guardian ad litem.
Annick Lenoir-Peek, for respondent-appellant.
U.B. (respondent) appeals from order entered terminating her
parental rights to her minor children, D.Q.M.D. and M.D.D.
(collectively, the children). We affirm.
In July 2004, respondent gave birth to A.M.D.. Both
respondent and A.M.D. tested positive for cocaine. The father of
A.M.D. tested positive for marijuana, cocaine, and PCP in December
2004. In December 2004, respondent and the father also signed a
voluntary placement agreement with the New Hanover County
Department of Social Services (DSS) for A.M.D. to be placed into
foster care. The two older children, M.D.D. and D.Q.M.D., two and three-
years-old at the time, remained in respondent's home until 7
January 2005, when DSS took them into custody. Both parents
stipulated that the children were neglected due to the father's
positive drug test and the parents' inability to maintain
employment and to provide for the basic needs of the children. The
trial court ordered respondent to maintain her substance abuse
treatment, undergo a psychological evaluation, submit to random
drug tests, comply with DSS's recommendations, and the family
services case plan. On 17 November 2005, respondent signed a
Relinquishment of Minor for Adoption by Parent or Guardian for
A.M.D., who was later adopted. This appeal is limited to issues
concerning D.Q.M.D. and M.D.D.
On 2 March 2006, the trial court changed the permanency plan
for D.Q.M.D. and M.D.D. from reunification to adoption. DSS filed
a petition to terminate respondent's and the father's parental
rights on 29 August 2006. DSS alleged as grounds the parents'
neglect and their willfully leaving the children in foster care
without showing reasonable progress to correct the conditions which
led to the removal of the children from the home pursuant to N.C.
Gen. Stat. § 7B-1111(a)(1) and (2) (2005).
On 17 January 2007, the trial court found grounds existed to
terminate respondent's parental rights on the basis of neglect and
failure to make reasonable progress by clear, cogent, and
convincing evidence and terminated respondent's parental rights.
Respondent argues the trial court erred by: (1) finding and
concluding that the children were neglected, willfully left in
foster care without showing reasonable progress, and abandoned;
and, (2) excluding testimony and evidence about her progress in
reunifying with another child, born in September 2006, who is not
a party to these proceedings.
III. Termination of Parental Rights
Respondent argues the trial court's conclusion to terminate is
not supported by the findings of fact. We disagree.
Proceedings in termination of parental rights cases are
divided into two parts: (1) the adjudication phase, governed by
N.C. Gen. Stat. § 7B-1109; and (2) the disposition phase, governed
by N.C. Gen. Stat. § 7B-1110. In re Baker, 158 N.C. App. 491, 581
S.E.2d 144 (2003). The petitioner has the burden of proving that
at least one ground for termination exists by clear, cogent, and
convincing evidence. In re Blackburn, 142 N.C. App. 607, 610, 543
S.E.2d 906, 908 (2001); N.C. Gen. Stat. § 7B-1111(b).
A. Standard of Review
The standard of review on appeal is whether the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence and whether the conclusions of law are supported by the
findings of fact. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d
838, 840 (2000), disc. rev. denied and appeal dismissed, 353 N.C.
374, 547 S.E.2d 9 (2001). Findings of fact supported by clear,
cogent, and convincing evidence are binding on appeal, even thoughthere may be evidence to the contrary. In re Helms, 127 N.C. App.
505, 511, 491 S.E.2d 672, 676 (1997). A trial court need only find
one statutory ground to exist for termination before adjudicating
the disposition phase of the proceedings. In re Shermer, 156 N.C.
App. 281, 285, 576 S.E.2d 403, 406 (2003); N.C. Gen. Stat. § 7B-
1111(a). In the disposition phase, the trial court determines
whether termination of parental rights is in the best interest of
the child. Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
Parental rights may be terminated when [t]he parent has
abused or 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). A neglected juvenile is one who does not
receive proper care, supervision, or discipline from the juvenile's
parent . . . ; 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 . . . . N.C. Gen. Stat. § 7B-101(15) (2005).
A prior adjudication of neglect may be considered by a trial
court, but cannot be the sole basis for terminating parental
rights. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984). Where
a child has been adjudicated neglected and the parent has not had
custody of the child for some time prior to the termination
hearing, the court must consider evidence of neglect at the time of
the hearing and any change of circumstances occurring after theadjudication. In re Bishop, 92 N.C. App. 662, 375 S.E.2d 676
Changed circumstances must be considered in light of the
evidence of prior neglect and the probability of a repetition of
neglect. Ballard, 311 N.C. at 715, 319 S.E.2d at 232. The court
must find either that neglect continues to exist at the time of the
termination hearing or that there is a clear and convincing
likelihood of repetition of neglect if the child is returned to the
parent. Id. at 714-15, 319 S.E.2d at 231-32; Shermer, 156 N.C.
App. at 286, 576 S.E.2d at 407.
The trial court made the following findings of fact in support
of its conclusion that grounds exist to terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1):
13. That the mother and father have willfully
abandoned the children for at least six months
immediately preceding the filing of this
petition, in that the minor children have been
in foster care continuously since January 7,
2005, and there has been minimal effort on the
part of the mother and father to reunite with
them. They both have had minimal contact with
the children. Neither parent has complied
with any court orders resulting from file nos.
05 J 08, 09 and 04 J 534. Specifically the
actions of the mother and the father as they
pertain to this action and the underlying
matter are as follows:
a. [Respondent] did not comply with the
visitation plan, which prohibited [the father]
from being present during visitations. Jolene
Armstrong, the social worker saw [the father]
at the apartment complex where [respondent]
resided at the time of a scheduled home visit.
b. [Respondent] did complete a parenting
program subsequent to the permanent plan for
her children being changed to adoption. The
afore-referenced program was not a court
authorized or ordered program. Furthermore,
[respondent] did not comply with in hometherapy as court ordered to assist with
parenting skills in the home.
c. [Respondent] has participated in therapy
with Dr. Kashgarian, but participation has
been inconsistent. Transportation has been
problematic since the mother does not own a
car, and must rely on others or public
. . . .
e. [Respondent] did not complete her drug
treatment with New Visions as required by her
. . . .
g. [Respondent] had another child in September
who is in the custody of the agency.
[Respondent] wants reunification with this
child and is working with the same social
worker Jolene Armstrong, but has not sought
information regarding the welfare of
[D.Q.M.D.] and [M.D.D.].
h. [Respondent]'s last visit with the children
occurred on January 6, 2006. She stated to
the social worker that if she could not have
the children for the whole day, she did not
want to visit with them. That since that
time, [respondent] has not contacted the
social worker to request visitation.
Our review of the record and transcript reveals each of these
findings are based on substantial evidence and includes prior
orders entered in the case and testimony from DSS Social Worker
Joann Armstrong. The adjudication order established the existence
of prior neglect. Respondent's failure to comply with DSS's
recommendations or the visitation plan, and her failure to make
reasonable progress in her case plan provides some evidence of the
likelihood of a repetition of neglect in the future. More
importantly, respondent's last visitation with the childrenoccurred more than eleven months prior to the termination hearing.
Respondent also refused visitation with her children on the grounds
she could not have them for an entire day. Although respondent
testified she called one of the children on their birthday, she did
not make any other telephone calls to them nor did she send
letters, cards, or gifts. [A] parent's complete failure to
provide the personal contact, love, and affection that inheres in
the parental relationship may be considered by a trial court in
determining neglect. In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d
811, 813 (1982).
Clear, cogent, and convincing evidence supports the trial
court's findings which, in turn, supports the conclusion to
terminate respondent's parental rights.
Since termination based
upon neglect was proper, we need not address the remaining ground
Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407.
This assignment of error is overruled.
IV. Excluded Testimony
Respondent also argues the trial court erred by excluding
testimony regarding her progress with respect to her youngest
child, who was born in September 2006 and who was in the care of
DSS at the time of the termination hearing. Respondent argues the
trial court's exclusion of this evidence deprived her of a chance
to show the trial court she would not repeat those circumstances
and how compliant she had been for the last several months with
regards to a new case plan. She further contends the error was
prejudicial and requires reversal. We disagree.
Respondent failed to request or make an offer of proof to
demonstrate what evidence she would have provided had the excluded
evidence been admitted in order to preserve the record. Our
Supreme Court has stated:
[W]e would hold that, whether an objection be
to the admissibility of testimony or to the
competency of a witness to give that, or any,
testimony, the significance of the excluded
evidence must be made to appear in the record
if the matter is to be heard on review.
Unless the significance of the evidence is
obvious from the record, counsel offering the
evidence must make a specific offer of what he
expects to prove by the answer of the witness.
Currence v. Hardin, 296 N.C. 95, 99-100, 249 S.E.2d 387, 390 (1978)
(citations omitted) (emphasis supplied); see also In re Parker, 90
N.C. App. 423, 431-32, 368 S.E.2d 879, 884-85 (1988) (This Court
was unable to review the exclusion of evidence in termination
hearing when the record failed to show the substance of the
excluded evidence). Respondent's failure to make an offer of proof
of the excluded testimony or evidence to preserve the record on
appeal waived any alleged error. This assignment of error is
The trial court's conclusions of law were supported by the
findings of fact and the findings of fact were supported by clear,
cogent, and convincing evidence. The trial court's order
terminating respondent's parental rights is affirmed.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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