Appeal by Respondent-Mother from order entered 12 March 2007
by Judge C. Randy Pool in McDowell County District Court. Heard in
the Court of Appeals 4 September 2007.
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for
Petitioner-Appellee McDowell County Department of Social
Services.
Taylor, Penry, Rash & Riemann, PLLC, by Neil A. Riemann, for
Guardian ad Litem.
Robert W. Ewing for Respondent-Appellant.
STEPHENS, Judge.
Respondent-Mother appeals from an order terminating her
parental rights to her children, S.M.B. and T.M.B. For the reasons
set forth below, we affirm.
Petitioner McDowell County Department of Social Services
(“DSS”) has been involved with Respondent-Mother and her husband,
M.B., (collectively, “Respondents”) since 1994.
(See footnote 1)
Respondents'
first child, H.M.B., was adjudicated neglected in 1995 based upon
a history of domestic violence between Respondents. Custody ofH.M.B. was ultimately placed with a third-party. On 30 January
2003, DSS filed a petition in case number “03 J 17” alleging that
Respondents' second child, S.M.B., was a neglected juvenile. In
May 2003, the trial court adjudicated S.M.B. neglected based upon
(1) M.B.'s acts of domestic violence upon Respondent-Mother while
the family lived in the house of S.M.B.'s paternal grandfather;
and (2) Respondent-Mother's violation of two separate safety plans
she entered into with DSS in which she agreed to keep S.M.B. away
from M.B. The adjudication order found that Respondent-Mother had
contributed to an unsafe environment for S.M.B. and placed her at
risk of harm by continuing to expose S.M.B. to M.B. knowing him to
be a chronic alcoholic who engages in acts of domestic violence.
On 29 September 2003, after the birth of Respondents' third
child, T.M.B., DSS filed a petition in case number “03 J 108”
alleging that T.M.B. was a neglected juvenile. T.M.B. was
adjudicated neglected a month later. The adjudication order found
that since S.M.B. had been adjudicated neglected, M.B. had been
through several alcohol and drug abuse programs, but continued to
abuse alcohol on a regular basis; he was arrested for threatening
his father and assaulting a jailer; and he had not complied with
the prior orders of the court or family services case plan. Custody
of T.M.B. was placed with DSS, and a trial placement was authorized
with Respondent-Mother upon the condition that she not allow T.M.B.
to be around M.B. without DSS's approval. In a review order
entered 15 January 2004, the trial court ordered Respondent-Mother
to obtain and maintain employment, establish a residence separatefrom the residence of the paternal grandfather, and refrain from
contact with M.B.
On 23 September 2004, the trial court entered a permanency
planning review order with respect to S.M.B. and T.M.B. The trial
court made several findings of fact and concluded that it was in
the children's best interests to continue to work with Respondent-
Mother toward reunification. Respondent-Mother was ordered to
maintain employment, maintain a suitable residence for herself and
the children, continue counseling, and to refrain from any contact
with M.B.
By permanency planning order filed 13 January 2005, the trial
court ordered legal and physical custody of S.M.B. and T.M.B. to be
with Respondent-Mother. Conditions of the order included that she
not voluntarily contact M.B., maintain a suitable residence for
herself and the children, and provide proper care and supervision
of the children in a safe home. In accordance with the order,
Respondent-Mother moved out of the paternal grandfather's house and
into a trailer purchased by the paternal grandfather; however,
Respondent-Mother and the children moved back into the paternal
grandfather's house in the winter of 2005. In April 2006, after
M.B. was released from prison, he returned to the paternal
grandfather's house where Respondent-Mother and the children
resided.
On 23 June 2006, DSS filed a juvenile petition in 03 J 17 and
03 J 108 alleging that S.M.B. and T.M.B. were neglected juveniles
in that they were living in an environment injurious to theirwelfare. The petition further stated that Respondents were
violating the January 2005 order. By order filed 15 August 2006,
the trial court again adjudicated S.M.B. and T.M.B. neglected. The
children were placed in the custody of DSS and reunification
efforts with Respondents were ceased. On 18 December 2006, DSS
filed a motion to terminate Respondents' parental rights as to both
S.M.B. and T.M.B. based on neglect. Respondent-Mother was served
with notice of the motion by first-class mail, and she answered the
motion on 28 December 2006. At the hearing on the motion to
terminate, Respondent-Mother testified on her own behalf and
presented testimony from her social worker, friends, and M.B. The
trial court concluded that based upon clear, cogent, and convincing
evidence, sufficient grounds existed for terminating Respondents'
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) in that
S.M.B. and T.M.B. were neglected, and the trial court terminated
Respondents' parental rights. Respondent-Mother appeals.
_________________________
Respondent-Mother contends the trial court lacked jurisdiction
to terminate her parental rights because she was not properly
served with notice of the 18 December 2006 motion to terminate in
compliance with the service requirements of N.C. Gen. Stat. §
7B-1102. That statute provides:
(a) When the district court is exercising
jurisdiction over a juvenile . . . [an] agency
specified in G.S. 7B-1103(a) may file in that
proceeding a motion for termination of the
parent's rights[.]
(b) A motion pursuant to subsection (a) of
this section and the notice required by G.S.7B-1106.1 shall be served in accordance with
G.S. 1A-1, Rule 5(b), except:
(1) Service must be in accordance
with G.S. 1A-1, Rule 4, if . . .
. . . .
c. Two years has elapsed since the
date of the original action.
N.C. Gen. Stat. § 7B-1102 (2005). Further, “[u]nder N.C.G.S. §
7B-405 [(2005)], an 'action is commenced by the filing of a
petition in the clerk's office[.]'”
In re P.L.P., 173 N.C. App. 1,
6, 618 S.E.2d 241, 245 (2005).
Respondent-Mother asserts that the 2006 motion to terminate
was filed more than two years after the date of the original
action, requiring service pursuant to the procedures set out in
Rule 4. Respondent-Mother contends that the date of the original
action for S.M.B. is 30 January 2003, the date DSS filed its first
neglect petition in 03 J 17. Similarly, Respondent-Mother contends
the date of the original action for T.M.B. is 29 September 2003,
the date DSS filed its first petition in 03 J 108. DSS, however,
asserts that the date of the original action in this termination
proceeding is 23 June 2006, when DSS filed its second juvenile
petition for both children, and that, accordingly, service was
proper pursuant to Rule 5(b).
We considered a similar issue in
P.L.P.,
supra. In that case,
the mother argued service under Rule 4 was required because a 2003
motion to terminate was filed more than two years after the filing
of a 1999 juvenile petition by which P.L.P. first came under the
jurisdiction of the court. This Court, however, noted that thetrial court ordered P.L.P. returned to the mother's custody and
closed the juvenile file in December 2000, and that DSS commenced
another action in May 2002 when it filed another neglect petition.
This Court concluded that May 2002 was the date of the original
action in the termination proceeding and service of the 2003 motion
to terminate was adequate under Rule 5.
Id.
In the present case, DSS filed two separate juvenile petitions
in 2003 which resulted in both S.M.B. and T.M.B. being adjudicated
neglected that same year. By order filed 13 January 2005, the
trial court returned legal and physical custody of S.M.B. and
T.M.B. to Respondent-Mother. In June 2006, DSS filed another
juvenile petition alleging that both S.M.B. and T.M.B. were
neglected. Based upon the 2006 juvenile petition, the trial court
again adjudicated S.M.B. and T.M.B. neglected. Thereafter, DSS
moved to terminate Respondent-Mother's parental rights. Although
the trial court did not specifically order the juvenile file
“closed” as in
P.L.P., the 2003 actions were closed when S.M.B. and
T.M.B. were returned to Respondent-Mother's custody, and the June
2006 petition commenced separate and distinct actions from the
actions commenced in 2003. Thus, as in
P.L.P., service of the 18
December 2006 motion to terminate was adequate under Rule 5.
Respondent-Mother acknowledges that she was served with notice of
the motion to terminate pursuant to Rule 5. Accordingly, the trial
court had jurisdiction to terminate her parental rights. This
assignment of error is overruled.
_________________________
Respondent-Mother next contends the trial court erred by
concluding that sufficient grounds existed to terminate her
parental rights based upon a finding that the minor children were
neglected within the meaning of N.C. Gen. Stat. § 7B-101(15). We
disagree.
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) (2005). Section
7B-101(15) defines “[n]eglected 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) (2005). To prove neglect in a
termination case, there must be clear and convincing evidence that
(1) the juvenile is neglected within the meaning of N.C. Gen. Stat.
§ 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
Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (quoting
In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02
(1993)). “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. “[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 adjudication
of 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.
Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501.
The trial court entered the following findings to support its
conclusion that Respondent-Mother's parental rights should be
terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(1):
12. [Respondents] began living together
approximately 17 years ago, and were married
in 1994. On numerous occasions over at least14 years, [Respondents] have engaged in
domestic violence, and [M.B.] has had ongoing
issues of assaults and criminal behavior
arising while he was intoxicated. Although
[Respondent-Mother] has taken various criminal
assault warrants and 50B domestic violence
actions against [M.B.], she has dismissed most
of these proceedings and returned to live with
[M.B.], despite his history of alcohol abuse
and violence.
13. The children subject to the motion for
termination of parental rights have previously
been adjudicated to be neglected juveniles on
two separate occasions. The first
adjudication of S.M.B. occurred following a
hearing held May 29, 2003, in the action
entitled
In the Matter of: S.M.B. File No. 03-
J-17. T.M.B. was adjudicated to be a
neglected juvenile following a hearing held
October 16, 2003, in the action entitled
In
the Matter of: T.M.B., File No. 03-J-108. The
minor children were most recently adjudicated
to be neglected juveniles following a hearing
held August 3, 2006, in a proceeding entitled
In the Mattter of: S.M.B. and T.M.B., File
Nos. 03-J-17 and 03-J-108. The adjudication
and dispositional order found both of the
minor children to be neglected juveniles as
defined by § 7B-101(15), and the custody of
both children was placed with the McDowell
County Department of Social Services. The
adjudication of neglect was based upon the
parents' choosing to reside together at the
home of the paternal grandfather, J.B. in
violation of the prior orders of the court
regarding contact with each other, being in
violation of the safety plan requiring that
[M.B.] not have contact with the minor
children, and due to an incident of domestic
violence in the home where the children were
residing, which occurred after violation of
the safety plan by both parties. These facts
were similar to the facts that led to the
adjudication of H.M.B. as a neglected
juvenile, and similar to the factual pattern
that led to the prior adjudication of S.M.B.
as a neglected juvenile in May, 2003, and
adjudication of T.M.B. as a neglected juvenile
in October, 2003.
. . . .
19. [Respondent-Mother] has mostly lived at
the residence of her father-in-law, J.B., for
approximately 14 years, and has known that
each time [M.B.] comes to his father's
residence, usually following a release from
prison, [Respondents] engage in domestic
violence and [M.B.] abuses alcohol. Prior to
the children being returned to the custody of
[Respondent-Mother] following a hearing on
January 15, 2005, Judge Skerrett told
[Respondent-Mother] in 2004 on two separate
occasions that [she] should not live at the
residence of J.B., due to the pattern of
domestic violence that ensued when [M.B.]
returned to the residence of his father, J.B.
After the adjudication of neglect of [S.M.B.]
in May, 2003, the social workers along with
the presiding judge encouraged [Respondent-
Mother] to obtain a residence separate from
J.B., and in 2004 J.B. bought a mobile home
which was placed at Grandview Trailer Park in
order for [Respondent-Mother] to have a
separate residence. [Respondent-Mother] and
the minor children moved to the mobile home
residence at Grandview Trailer Park, and
stayed at the residence until some time during
the Winter of 2005, when she voluntarily moved
back to the residence of J.B.
20. Pursuant to a permanency planning order
entered January 13, 2005
In the Matter of:
S.M.B. and T.M.B., File Nos. 03-J-17 and -108,
the custody of said children, which had been
with the McDowell County Department of Social
Services, was placed with [Respondent-Mother]
upon terms and conditions that included that
[she] would not allow the children to be
around [M.B.] and that [she] shall not have
voluntary contact with [M.B.], and that if
[M.B.] contacted [Respondent-Mother] she was
to contact law enforcement and take
appropriate action if necessary. The
permanency planning order required
[Respondent-Mother] to maintain a suitable
residence for the minor children, and
suspended visitation between the children and
[M.B.] until he could demonstrate consistent
sobriety and was no longer demonstrating
harassing behaviors toward [Respondent-
Mother]. At the time the children's custody
was returned to [Respondent-Mother] on January
13, 2005, said respondent assured DSS that shedid not plan to reunite with [M.B.], and would
have no contact with him.
. . . .
25. [M.B.] was continuously incarcerated from
July, 2005 through January, 2006, when [he]
was released and immediately sent to the DART
program, where he remained until April 28,
2006. [M.B.] has previously attended the DART
program on at least four prior occasions. Upon
[his] release from the DART program, he
returned to the residence of his father, J.B.
where [Respondent-Mother] and the minor
children were residing. [Respondent-Mother]
knew or should have known [M.B.] would return
to the residence of J.B. upon his release from
prison. From past history [Respondent-Mother]
knew the minor children would be placed at
risk for their safety in the event [M.B.]
moved back to his father's residence.
[Respondent-Mother] failed to notify law
enforcement or DSS that [M.B.] had resumed
residing with her, and was allowing [him] to
have unsupervised contact with the minor
children despite her knowledge that the
father's presence in the home jeopardized the
safety of the children, and violated the prior
order of the court. On May 22, 2006, DSS
received a referral regarding [Respondent-
Mother]. Upon investigation, the social
worker found [Respondents] residing together
at the home of J.B. At the request of the
social worker, [Respondents] agreed to enter
into a protection plan for the children,
whereby [M.B.] would move from [Respondent-
Mother] and not have contact with the
children. J.B. paid for his son to move out
of his residence, and stay at the Sportsman
Inn. On May 25, 2006, [M.B.] was observed to
be drinking in his motel room, with several
empty beer bottles in the room. On May 31,
2006, [M.B.] was again observed by the social
worker to be under the influence of alcohol at
his motel room. On June 23, 2006, [M.B.] was
at the residence of his father, where
[Respondent-Mother] and the minor children
were residing. [M.B.] had been living at the
residence of [Respondent-Mother], in violation
of the safety plan, for approximately two
weeks, except for two days prior to June 23,
2006. On 23 June 2006, [M.B.] returned to theresidence where [Respondent-Mother] was
staying in the home of J.B., and threatened
[her]. Although [Respondent-Mother]
immediately took the children to the Sheriff's
Department after [M.B.] appeared in the home
on June 23, 2006, [she] did not press any
charges against [M.B.] or take out a domestic
violence restraining order. While both
[R]espondents testified [M.B.] was not living
at the home of [Respondent-Mother] and
children prior to June 23, 2006, the testimony
of said [R]espondents was not credible. As a
result of violation of the protection plan,
DSS sought and obtained non-secure custody of
the minor children. On June 23, 2006, the
home of [Respondent-Mother] was in substantial
disarray, with dirty dishes in various areas
of the home, piles of clean and dirty laundry,
cigarette butts in the floors and overflowing
out of the ashtrays, and a strong, unpleasant
odor was in the home. Following DSS taking
custody of the [R]espondents' children,
[Respondents] continued to reside together at
the residence of J.B. until [M.B.] was
incarcerated in August, 2006.
. . . .
29. DSS has previously provided intensive
supportive services to [Respondents] and the
minor children in order to prevent or
eliminate the need for the removal of the
minor child[ren] outside the home of
[R]espondents[.]
. . . .
31. Since the adjudication and dispositional
order entered August 3, 2006, adjudicating
[S.M.B.] and [T.M.B.] to be neglected
juveniles, [M.B.] has been incarcerated
serving an active sentence for two convictions
of driving while impaired and a conviction of
communicating threats. [Respondent-Mother]
has continued to reside at the home of [] J.B.
the father of [M.B.] As of February 8, 2007,
[Respondent-Mother] was unemployed. Between
February 8, 2007 and February 26, 2007,
[Respondent-Mother] obtained employment of
approximately 20 hours per week, as a
merchandising assistance [sic]. As of
February 26, 2007, [Respondent-Mother]continued to reside at the home of J.B.
[M.B.] intends to return to J.B.['s] residence
when he is released from prison in 2008. Mr.
J.B. has maintained ownership of the mobile
home where [Respondent-Mother] previously
resided at Grandview Trailer Park, and this
residence has been available as a location
where [she] could have resided, but chose not
to. When [M.B.] was requested by the
Department of Social Services to leave the
residence of J.B. in May, 2006, [M.B.]
attempted to move to the mobile home residence
at Grandview Trailer Park, but was not allowed
to reside there by the management at the
mobile home park due to [M.B.'s] reputation
for alcohol abuse.
32. [Respondents] have had a pattern of
conduct, extending several years, whereby
[Respondent-Mother] has remained unemployed,
and lives at the residence of J.B. the father
of [M.B.], despite diligent efforts on the
part of the Department of Social Services to
assist [Respondent-Mother] in finding a
separate residence. Despite [Respondent-
Mother] knowing that [M.B.] frequently becomes
intoxicated and engages in domestic violence
with [her] and threatens the children,
[Respondent-Mother] has persisted in remaining
with the children at the residence of J.B.,
where [M.B.] returns after each period of
incarceration. On each occasion after [M.B.]
has been incarcerated and has returned to the
residence of his father, where [Respondent-
Mother] and the children have resided,
incidents of domestic violence have occurred
putting the children's safety in jeopardy.
Prior court orders have noted the risk to the
children that is presented by [Respondent-
Mother] continuing to maintain a relationship
with [M.B.] and by residing with and being
financially dependent on J.B. [Respondent-
Mother] is under no disability and is capable
of gainful employment so that she could
establish a residence independent from the
home of J.B. the father of [M.B.]
[Respondent-Mother], since approximately 2004,
has had a mobile home residence available for
her use which is owned by her father-in-law,
J.B. [M.B.] is a threat to the minor children
due to his substance abuse, and threatening,
violent, and aggressive behavior afterdrinking. The above pattern of behavior by
[Respondents] has continued for at least
twelve years, despite the intervention of DSS
and the court system. [Respondents] have
chosen to continue their relationship with
each other, knowing that the children are
placed at risk due to the above pattern of
behavior. The court has considered the
testimony and evidence presented by
[Respondent-Mother] and her counselor, Sarah
Wells, but finds the conduct of [Respondent-
Mother] of repeatedly exposing her children to
the threat of domestic violence to be wilful.
Of these findings, Respondent-Mother challenges only finding of
fact thirty-two in her brief. Thus the remaining findings are
presumed to be correct and supported by the evidence.
In re Moore,
306 N.C. 394, 293 S.E.2d 127 (1982). In addition, a review of the
record and transcript shows that each of the trial court's findings
is based upon competent evidence, including the numerous court
orders and DSS and Guardian ad Litem reports entered in the case.
Respondent-Mother points to her counselor's testimony
regarding Respondent-Mother's progress as evidence that the
probability of neglect would not occur. Respondent-Mother,
however, testified that she still resided at the paternal
grandfather's house at the time of the termination proceeding
despite M.B.'s history of residing there upon release from prison.
Respondent-Mother's choice to continue living with the paternal
grandfather, and her failure to obtain appropriate housing and
employment, as ordered by the court and recommended by DSS,
supported the court's determination that there was a probability
that neglect would be repeated in the future. Further, because of
the similarities to H.M.B.'s situation, we find the evidenceregarding Respondent-Mother's other child to constitute relevant
circumstances and events which bear upon the probability of a
repetition of neglect. The trial court was free to conclude, as it
did, that M.B.'s pattern of alcohol abuse suggested a probability
that domestic violence in the presence of the children would recur.
We therefore hold that the trial court's findings of fact were
based on clear, cogent, and convincing evidence. We further hold
that these findings support the court's conclusion that grounds
justifying termination existed under N.C. Gen. Stat. § 7B-1111
(a)(1).
_________________________
Respondent-Mother also contends the trial court erred in
determining that it was in the children's best interests to
terminate her parental rights. We disagree.
In determining whether terminating parental rights is in a
juvenile's best interest, the court shall consider the following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental
rights will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive parent,
guardian, custodian, or other permanent
placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2005).
Here, to support its determination that it was in the
children's best interests to terminate Respondent-Mother's parental
rights, the trial court made the following finding of fact:
33. Since the minor children were placed in
foster care on June 23, 2006, the children
have done well in their placement. The
children are ages [] and [], and have no
medical, psychological, or behavioral problems
that would prevent the minor children from
being readily adopted. It is likely that if
the parental rights of [Respondents] were
terminated, the children could be adopted.
The permanent plan for the children is
adoption, and the termination of the parental
rights of [Respondents] will aid in the
accomplishment of the children's permanent
plan. The children have a moderate to strong
bond with [Respondent-Mother], and a weak bond
with [M.B.] Since the children have come into
the care of the Department of Social Services
they have resided in the same foster home.
The present foster care placement for the
minor children is a potential adoptive
placement for the children should the parental
rights of [Respondents] be terminated. The
quality of the relationship between the
children and their foster parents, which is a
possible adoptive placement, is good.
Based upon the trial court's finding, which addresses the
statutory factors in section 7B-1110(a) and is supported by the
evidence as Respondent-Mother concedes, we conclude that the trial
court did not abuse its discretion in determining that terminating
Respondent-Mother's parental rights was in the best interests of
the children.
The orders terminating Respondent-Mother's parental rights to
S.M.B. and T.M.B. are
AFFIRMED.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
Footnote: 1