IN THE MATTER OF: Richmond County
C.J.G.S. Nos. 03 J 77
M.M.J.S. 03 J 78
Deane, Williams & Deane, by Jason T. Deane, for petitioner-
appellee Department of Social Services.
Jon W. Myers, for respondent-appellant.
CALABRIA, Judge.
Respondent appeals from orders terminating her parental rights
to two children, C.J.G.S. and M.M.J.S., on the grounds of neglect.
We affirm.
In January 2002, the Richmond County Department of Social
Services (“DSS”) became involved after receiving reports of
unsanitary conditions in respondent's home. Social workers from
DSS visited respondent's home at least nine times in 2002 and 2003.
During the home visits, DSS evaluated the home and provided
guidance on maintaining a suitable living environment for the
children since the children were not clean. DSS found unsanitary
conditions in the house that included animal feces throughout the
house from a variety of pets kept by respondent, dirty dishes piledup on the counter and in the sink, food left out from the previous
night on the table, and garbage accumulated on the floor. In
addition to unsanitary conditions, there were issues with lack of
supervision and care of the children. Specifically, DSS received
reports from C.J.G.S.'s school that he came to school with hygiene
problems. Although respondent made some progress, conditions
always reverted to the unsanitary conditions that led to the
involvement of DSS. DSS filed a juvenile petition in December
2003, alleging both children to be neglected due to living in an
environment injurious to their health. On 2 December 2003 the
children were placed in non-secure custody, and respondent
stipulated to neglect. On 13 January 2004, the trial court's order
adjudicated the children as neglected.
Respondent and her husband (not the children's biological
father) entered into a family services case plan that listed twelve
items for improvement, including maintaining a clean and hazard-
free home and making sure the children were dressed in clean
clothes and groomed every day. Since respondent made some
improvements and began to follow the case plan, in February 2004,
the children were placed back in the home on a trial basis. In
April 2004 respondent was arrested for a probation violation and
was incarcerated in South Carolina for several months.
Respondent's husband contacted DSS and told the agency he was
unable to provide proper care and supervision for the children, and
on 5 May 2004 the trial court ordered DSS to place the children in
foster care. The children remained in foster care. During theJune and August 2004 review periods, reunification remained the
permanent plan despite the fact that respondent was incarcerated in
South Carolina and was not released until sometime late in 2004.
Over the course of several review periods from December 2004
through November 2005, respondent improved the conditions in the
home, but was unable to consistently comply with the family
services case plan. Some of the recurring issues included keeping
pets in the home after DSS asked respondent to keep them out of the
home, and keeping the house clean and free of garbage. After
visiting with respondent, the children would return to their
respective foster homes with numerous flea and insect bites. In
addition, they were hungry and dirty, and exhibited cigarette burns
on their skin. C.J.G.S. was bitten by a dog and received medical
attention. In the court's November 2005 order, the trial court
warned respondent she had one last chance to make the necessary
efforts and improvements to provide a “safe, fit, and sanitary
environment for the minor children.”
In the trial court's next order, entered 31 January 2006, the
court noted improvements in the cleanliness of respondent's home,
but the presence and appropriate care of the pets remained an area
of concern. The court also noted DSS's request that “the parents
demonstrate a long-term commitment before the minor children return
to their custody.” The court found it “likely” that the children
would be returned to respondent within six months. The court
increased visitation to weekly in-home visits and reiterated therequirement that respondent comply with the family services case
plan and maintain a suitable living environment for the children.
At the next review hearing, respondent notified the court that
she had separated from her husband and was moving to a new house.
An unannounced home visit from DSS revealed respondent's house was
not clean and was in disarray. The trial court found that
respondent was likely to be reunited with the children “if she
fully complies with her Family Services Case Plan for
Reunification.” The court stated that respondent needed to “show
significant progress to [the court] in completing her activities
and objectives.”
At a hearing on 11 April 2006, the trial court found
respondent had not made significant progress addressing the
cleanliness and safety of the home. After citing respondent's
regression to unsanitary conditions in her home and instability
regarding her relationships, the trial court terminated
respondent's visitation and allowed DSS to cease reunification
efforts. DSS filed a petition on 22 June 2006 seeking to terminate
respondent's parental rights on the grounds of neglect, willfully
leaving the children in foster care for more than twelve months
without showing reasonable progress, and willfully failing to pay
a reasonable portion of the costs of care for the children while
they were in foster care. Hearings were held on 21 and 28 November
2006. The trial court found grounds, concluded termination was in
the best interests of the children, and terminated respondent's
parental rights to both children. Respondent appeals. On appeal, respondent raises three issues: (i) the trial court
erred in terminating parental rights based upon neglect; (ii) the
trial court erred in terminating parental rights based upon failure
to make reasonable progress while leaving the children in foster
care for more than twelve months; and (iii) the trial court abused
its discretion in finding that the best interests of the children
would be served by terminating parental rights.
Respondent argues the trial court erred in terminating her
parental rights on the basis the findings of fact are not supported
by the evidence and the conclusions of law are not supported by the
findings of fact. Respondent contends the trial court
impermissibly shifted the burden of proof to her by refusing to
acknowledge respondent's changed circumstances at the time of the
termination hearings. Respondent testified that her husband was
the source of the unsanitary conditions and he was the reason she
was unable to maintain a suitable living environment for the
children. The couple separated in January 2006, and respondent
testified that once she moved to a new house, she maintained safe
and sanitary conditions suitable for her children. We reject
respondent's arguments and uphold the trial court's decision to
terminate respondent's parental rights.
Proceedings in termination of parental rights cases are
divided into two parts: (1) the adjudication phase, governed by
N.C. Gen. Stat. § 7B-1109 (2006) and (2) the disposition phase,
governed by N.C. Gen. Stat. § 7B-1110 (2006). In re Baker, 158
N.C. App. 491, 581 S.E.2d 144 (2003).
“'The standard of review intermination of parental rights cases is whether the findings of
fact are supported by clear, cogent and convincing evidence and
whether these findings, in turn, support the conclusions of law.'”
In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004)
(quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758
(1984)).
Findings of fact supported by competent evidence are
binding on appeal even though there may be evidence to the
contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317,
320 (1988).
An order terminating parental rights will be upheld if
one or more grounds for termination is found. N.C. Gen. Stat. §
7B-1110(a) (2006). Once a trial court has determined that at least
one ground exists,
the trial court then decides whether termination
of parental rights is in the best interests of the child. In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
A trial court may terminate parental rights based on neglect
“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). A “neglected juvenile” is “[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 [the] law.” N.C. Gen.
Stat. § 7B-101(15) (2006). A prior order adjudicating neglect is
admissible evidence to show past neglect. In re Ballard, 311 N.C.708, 713-14, 319 S.E.2d 227, 231 (1984). However, termination of
parental rights may not be determined solely on a finding of past
neglect. Id., 311 N.C. at 714, 319 S.E.2d at 231. A trial court
must find either that neglect exists at the time of the termination
hearing or that there is a reasonable likelihood of repetition of
neglect if the children were returned to the parents. Id.; see
also In re Reyes, 136 N.C. App. 812, 526 S.E.2d 499 (2000). This
is especially true when a respondent has not had custody of the
child for quite some time. Ballard, 311 N.C. at 714, 319 S.E.2d at
231.
Although the prior adjudication in this case established the
existence of prior neglect, DSS had the burden to show that a
reasonable probability existed that the neglect would most likely
be repeated if the children returned to their mother's home.
Evidence and testimony highlighted respondent's lack of progress
toward maintaining a clean and safe home over a four-year period.
DSS gave respondent numerous opportunities to improve the
cleanliness of her home even before filing the juvenile petitions
at the end of 2003. Respondent exhibited a pattern of making
minimal improvements, only to repeat the same habits that led to
the involvement of DSS. Once the trial court became involved,
respondent entered into a series of family services case plans over
a two-year period, all with the same goal of maintaining a clean
and safe home for the children, and addressing the needs of the
children. Respondent was given specific goals to keep the house
clean, and was warned numerous times about the problems associatedwith keeping animals in the house. Social workers from DSS helped
respondent clean her house on one day in November 2005 in order to
illustrate the types of tasks that were needed. However, she
continued to disregard the guidance of DSS and allowed the home to
remain in a filthy state. Evidence was presented that respondent
had the physical ability to comply with the requirements set forth,
yet she never stated any reason why she could not comply. Her
unwillingness to undertake the necessary efforts for four years
demonstrated the likelihood that the children's neglect would
continue if they were returned to her care. In addition,
respondent's inability to properly care for the children during
visitations provided further evidence of the likelihood of the same
behavior continuing in the future. Evidence was presented that
C.J.G.S. exhibited emotional and behavioral problems, and these
problems increased after visitation with respondent. M.M.J.S.
regressed in her toilet training each time she visited with
respondent. Both children suffered from flea and insect bites and
returned to foster care dirty and exhibiting injuries. Respondent
was not always prepared for visitation with the children.
Specifically, she did not have sufficient food in the house for the
children or properly clean the house.
Respondent claimed her husband was the source of the
unsanitary conditions, and testified that she and her husband
separated on 27 January 2006, a couple of months before DSS ceased
reunification efforts. The separation gave respondent some time to
demonstrate an ability to maintain a clean home for the children;however, she failed to do so. Respondent also testified that she
and her husband started talking again in the summer of 2006, and
that he had stayed at her house until late July. Such testimony
undermines respondent's credibility regarding her desire to
eliminate the negative influences from her life that prevented her
from reunifying with her children. In fact, the trial court did
find respondent's testimony generally unconvincing, and since the
trial court had the opportunity to listen to respondent's testimony
and to weigh her credibility, we are unable to say the trial court
erred in deciding to give her testimony little weight. See Hodges
v. Hodges, 257 N.C. 774, 779, 127 S.E.2d 567, 571 (1962)(it is the
trial judge's “right and duty to consider and weigh all the
competent evidence before him, giving to it such probative value as
in his sound discretion and opinion it is entitled to”). Nor did
the trial court impermissibly shift the burden of proof to
respondent; the court merely found her testimony not to be
credible. We therefore find DSS presented sufficient evidence to
support the trial court's findings. The trial court did not err in
concluding respondent neglected her children and that such neglect
was likely to be repeated if the children were returned to her
care. Because we find the termination was properly based upon
neglect, we need not address respondent's further arguments
regarding the remaining ground for termination based upon failure
to make reasonable progress while leaving the children in foster
care for more than twelve months.
N.C. Gen. Stat. § 7B-1111(a)
;
In
re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003)
. Respondent next assigns error to the trial court's conclusion
that termination of her parental rights is in the best interests of
the children. Respondent argues the trial court impermissibly
shifted the burden to her by concluding that “there is no evidence
that it is contrary to the best interests of the minor child to
terminate the parental rights of the Respondent mother.” We
disagree.
A trial court is not required to terminate parental rights
even upon finding that statutory grounds exist to support
termination. In re Tyson, 76 N.C. App. 411, 419, 333 S.E.2d 554,
559 (1985). The trial court's decision to terminate parental
rights is reviewed for an abuse of discretion.
Shermer, 156 N.C.
App. at 285, 576 S.E.2d at 407
. In the instant case, DSS presented
evidence regarding the progress of each child in their respective
foster home placements. C.J.G.S. was placed in a therapeutic home
that was separate from M.M.J.S.'s home in order to address specific
behavioral and emotional issues. He acted out to a greater degree
just prior to and following his visits with respondent,
particularly the overnight visits. C.J.G.S. improved while in
therapeutic foster care. Specifically, he made the honor roll and
while at school, he controlled his emotions. M.M.J.S. initially
had difficulty with speech and enunciation, as well as toilet
training. Testimony from her foster mother indicated the toilet
training was sporadic with M.M.J.S., because she would revert to
wetting her clothes after returning from visits with her mother.
Once the visitation was suspended in April 2006, M.M.J.S.'s wettingceased. The children would also return from visitations with
respondent dirty, hungry, and needing to eat right away. Both
children learned daily routines while in foster care and were able
to dress and groom themselves appropriately with guidance from
their respective foster parents. Neither child had hygiene issues
after visitation with respondent ceased.
After reviewing the record, prior court orders, transcripts,
as well as the trial court's findings and conclusions in its order,
we hold the trial court's findings of fact are supported by clear,
cogent and convincing evidence and the findings of fact support the
conclusions of law. Therefore, we find the trial court did not
abuse its discretion in determining termination of respondent's
parental rights was in the best interests of the children.
Based on the foregoing analysis, we affirm the order
terminating respondent's parental rights.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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