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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-485


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
A.M.D.

    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.

    TYSON, Judge.

    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.

I. Background
    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 appeals.
II. Issues
    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.
B. Analysis
    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 (1989). 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 transportation.

        . . . .

        e. [Respondent] did not complete her drug treatment with New Visions as required by her case plan.

        . . . .

        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 for termination. 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 overruled.
IV. Conclusion
    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.
    Affirmed.
    Judges MCGEE and ELMORE concur.
    Report per Rule 30(e).

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