NO. COA07-917
Appeal by respondent-mother from order entered 3 May 2007 by
Judge Amber Davis in Dare County District Court. Heard in the
Court of Appeals 26 November 2007.
Sharp, Michael, Outten & Graham L.L.P., by Steven D. Michael,
for Dare County Department of Social Services, petitioner-
appellee.
Duncan B. McCormick for respondent-appellant.
Pamela Newell Williams for the Guardian ad Litem.
MARTIN, Chief Judge.
Respondent-mother (“mother”) appeals the order terminating her
parental rights to her minor children, I.S.E.G., T.I.D., and A.R.D.
On 7 May 2004, the Dare County Department of Social Services
(“DSS”) filed amended juvenile petitions alleging that I.S.E.G. and
T.I.D. were abused, neglected, and dependent as to mother and their
respective biological fathers. The petitions alleged that I.S.E.G.
and T.I.D. had been exposed to the violent behavior of mother's
husband (“husband”), who was also I.S.E.G's biological father.
More specifically, the petition alleged that husband had assaulted
mother on two occasions, once breaking her hand, and had set fire
to both the home of the maternal grandmother of the children, wheremother and the children were living, as well as the home of one of
mother's friends. Husband's actions resulted in criminal charges
against him including assault and arson. The petition further
alleged that husband had a criminal history which included drug,
robbery, and assault offenses. With respect to mother, the
petition alleged that she suffered from bipolar disorder, attention
deficit hyperactivity disorder, and major aggressive disorder, and
that she had not been receiving treatment in recent months.
In response to the juvenile petition, the trial court granted
DSS nonsecure custody of I.S.E.G. and T.I.D. On 7 June 2004, the
trial court held an adjudication and disposition hearing and
adjudicated I.S.E.G. and T.I.D. as neglected. In its adjudication
order, the trial court found that the parties had stipulated that
the allegations in the juvenile petition regarding neglect were
true.
In its disposition order, the trial court placed the children
with their maternal grandmother, gave the parents supervised
visitation, ordered the parents to comply with the DSS case plan,
and ordered mother to comply with a plan of prenatal care for her
unborn child. In addition, the trial court ordered mother to
comply with the recommendations of DSS that she attend therapy for
her mental health issues, submit to random drug screens, cooperate
and maintain weekly contact with DSS, make her home available for
a DSS visit, attend weekly sessions of a domestic violence program,
and find suitable housing. On 14 September 2004, DSS filed a juvenile petition alleging
that mother's newborn child, A.R.D., was neglected and dependent.
On 25 October 2004, the trial court adjudicated A.R.D. as dependent
and placed him with his siblings in the maternal grandmother's
home.
Between September 2004 and May 2005 the trial court reviewed
the cases on five occasions. Following a review hearing on 23 May
2005, the trial court found that the children were doing well in
the placement with their maternal grandmother. Regarding mother's
compliance with the case plan, the trial court found that mother
had refused to take a drug test on two occasions, had not attended
the domestic violence counseling group, had attended only two
therapy sessions since January 2005, had no means of
transportation, she and husband were facing eviction from their
residence, she was pregnant, and she had “not received adequate
prenatal care in the past and cannot meet the needs of her own
health since she is a severe diabetic.” On the basis of these
findings, the trial court ordered DSS to cease reunification
efforts and ordered that mother should have no visitation with the
children.
Following the next review by the trial court in July 2005, the
trial court again found that mother had made no progress on her
case plan and that she had criminal charges pending for selling
alcohol to a minor, possession of an open container, and consuming
alcohol in the passenger area of a vehicle. The trial court
further found that “[mother] is presently pregnant and should notbe consuming alcohol. . . . All of [mother's] children have had
medical issues, low birth [weight] and developmental issues due to
her non-compliance with prenatal care and her diabetes.” Also in
its order, the trial court found that mother later had suffered a
miscarriage with the pregnancy and the infant had died.
During the trial court's reviews in July and August of 2005,
the trial court found that the children had to be removed from the
maternal grandmother's home and placed in foster care due to a
domestic violence incident between maternal grandmother and her new
husband and due to a decline in the level of care the grandmother
was providing to the children. In its order from the August 2005
review, the trial court approved the DSS recommendation that the
permanent plan be changed to termination of parental rights and
adoption of the children.
On 21 November 2006, DSS filed a petition to terminate the
parental rights of mother and the respective fathers of the minor
children. On 3 May 2007, the trial court entered an order
terminating mother's and the fathers' parental rights. Mother now
appeals the termination.
______________________
In her first assignment of error, mother challenges several of
the trial court's findings of fact in the termination order as
constituting mere recitations of findings from prior orders in the
case. We agree that the fourteen findings of fact challenged by
mother reiterate the findings from the many court orders entered
during the lengthy history of this case. However, in its seventy-nine page termination order, these findings merely provide detailed
background information regarding the circumstances and proceedings
that led to the filing of the termination petition, and it was not
error for the court to make them.
See In re Ballard, 311 N.C. 708,
715, 319 S.E.2d 227, 232 (1984) (“[E]vidence of neglect by a parent
prior to losing custody of a child _ including an adjudication of
such neglect _ is admissible in subsequent proceedings to terminate
parental rights.”). Moreover, the trial court entered separate
findings not challenged by mother that are sufficient to support
the trial court's termination as discussed in the next section of
this opinion. Consequently, this assignment of error is overruled.
In her next assignment of error, mother contends that the
trial court erroneously terminated her parental rights on the basis
of neglect pursuant to N.C.G.S. § 7B-1111(a)(1). For the purposes
of this statutory ground, “neglected juvenile” is defined 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);
see also N.C. Gen. Stat. § 7B-
1111(a)(1) (2005). Furthermore, this Court has held:
In deciding whether a child is neglected
for purposes of terminating parental rights,
the dispositive question is the fitness of the
parent to care for the child at the time of
the termination proceeding. . . . Terminationmay not . . . be based solely on past
conditions that no longer exist.
Nevertheless, 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 L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005)
(citations omitted) (internal quotation marks omitted).
Mother argues that the trial court must be reversed because
its findings are inadequate to support a conclusion of neglect.
Although mother assigned error to many of the court's findings of
fact, she abandoned them when she failed to argue them in her
brief. N.C.R. App. P. 28(b)(6) (2007). With respect to these
findings of fact, because mother abandoned her exception to them,
“they are presumed to be correct and supported by the evidence.”
In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982). Based
upon the unchallenged findings of fact, the court's conclusion of
neglect can be affirmed. The following findings support the
court's determination of neglect:
70. [Mother] has demonstrated a pattern
of instability since the Department became
involved in May of [2004]. She has changed
residences frequently and not made the
Department aware of her numerous addresses.
She has not provided any funds for the
children. She has not called to inquire about
the care or welfare of her children since May
of 2005. [Mother] did call and leave messages
that she wanted a visit with the children
after the hearing on January 3, 2007 when [the
social worker] agreed to discuss it with the
therapist. However, after a review of the
Court Orders, it was determined that the Court
Orders from August 10, 2005 stated that there
was to be no visitation. During the one phoneconversation and the messages she left,
[mother] did not ask how the children were
doing. . . .
71. . . . [Mother]
last attended a
Permanency Planning Team meeting at the Dare
County Department of Social Services on August
16, 2005 and at that time when asked if she
had any input, she stated that “it didn't
matter.” [Mother] did not attend the
Permanency Planning Team meeting in August of
2006 since the Department was not informed by
[mother] of her current address. All other
invitations to the Permanency Planning Team
meetings were not returned by the postal
service. [Mother] did have her attorney fax a
letter that [mother] could not make the
Permanency Planning Team meeting on February
20, 2007. The letter did not give a reason
why she could not attend.
72. During the past year, [mother] has
not had a stable place to live. She lived
with her mother in Elizabeth City for a period
of time . . . .
73. On November 29, 2006, [mother] was
incarcerated in Pasquotank County jail and had
not made arrangements to attend the Court
hearing.
74. From August of 2005 until January of
2007, [mother] did not request any visitation
or contact with the children.
75. [Mother] has an extensive criminal
history, including the following convictions:
Pasquotank County: January 12, 2006 -
Communicating Threats - guilty; January 13,
2006 - M. Assault with a Deadly Weapon -
guilty special conditions - submit to warrant
less [sic] searches, drug screens, not use,
possess[, ]or control any illegal controlled
substances or alcohol, no contact directly or
indirectly with victim; November 13, 2006 -
Misdemeanor probation violation - revoked for
45 days; November 9, 2006, Driving While
Licence Revoked - guilty.
Dare County: January 26, 2007 - Felony
possession with intent to sell/deliver cocaine- guilty - fine $300.00, restitution $200.00,
costs $232.50, supervised probation; September
12, 2006 - Misdemeanor Sell/Give MTBV/U-Wn to
under 21 - guilty; September 12, 2006 -
Possess open container/cons alcohol psg area -
guilty; March 22, 2006 - Misdemeanor
Possession Drug Paraphernalia - guilty;
February 21, 2006 - Felony Flee/Elude Arrest
with Motor Vehicle (F) - guilty; and September
14, 2006, - Misdemeanor Simple Assault -
guilty.
. . . .
77. [Mother] is currently charged with
Felony Possession Schedule II Controlled
Substance in Pasquotank County. She was
served on June 12, 2006 and she was indicted
by the Grand Jury. She is currently still on
probation awaiting trial on this new charge.
A conviction on this charge would likely
result in a violation of her probation and an
active period of incarceration.
With respect to mother's progress on the case plan, the trial
court made the following findings:
87. . . . [Mother and husband] never
maintained appropriate or stable housing; they
have moved frequently and lived with
individuals who used illegal drugs; they did
not keep the Department informed of where they
were living. . . . They failed to attend
counseling regularly and failed to provide
verification and documented no progress; lived
in residences where controlled substances were
kept; failed to maintain regular employment;
exposed the children to individuals involved
in criminal activities; failed to keep [DSS]
informed of their whereabouts; and continued
to be involved in criminal behaviors.
. . . .
89. [Mother and husband] have not
received needed services. During 2004 and
2005, . . .[mother] only went to therapy three
times. The couple refused to take drug tests
. . . . [Mother and husband] never provided
any written verification of attendance at any
of their meetings. [Mother and husband]allowed [an individual] to live with them who
was charged with a gun and drug offense while
in [their] residence. Although it has been
reported that [mother] attended mental health
counseling, the Department has received no
verification of this information or of any
progress she has made.
. . . .
93. [Mother] testified at this hearing
stating that she was currently seeing a
therapist at Albemarle Mental Health and
therapy began five months ago. She reports
attending four times in five months. In 2006,
she was incarcerated and was sent to Raleigh
for safe keeping and then returned to the
Albemarle District Jail. She was incarcerated
for approximately 50 days. She reported that
she lived with her mother for a time and left
her mother's home because they “had a conflict
in lifestyle.” She reports that she is
presently residing with her brother. [Mother]
acknowledged that she was convicted of assault
in September of 2005 and in September of 2006
for assaults on other females.
. . . .
95. The parents have not demonstrated a
pattern of stability, moving from place to
place and living in the homes of others.
Historically, they have always lived in the
homes of others, never having housing of their
own and have resided with individuals which
made placement of the children unlikely. They
have not at any time established a safe or
suitable home for placement of the children.
96. The parents have failed to
demonstrate interest in the welfare or well
being of the children, having not maintained
contact with the Department for over two years
and on the rare occasions when contact
occurred, they did not inquire about the well
being of the children.
These findings show a history of neglect and the probability
of repetition of neglect sufficient to constitute a ground for
termination of parental rights. Mother's failure to comply withthe case plan in any significant way for a period of almost three
years, her failure to seek adequate mental health treatment, her
failure to address significant issues of domestic violence and
substance abuse, her continuing involvement in criminal activities,
and her failure to maintain any stable housing or employment not
only evidence past neglect but also adequately support the trial
court's conclusion that the children would be subject to neglect if
they were placed in mother's care.
See In re Davis, 116 N.C. App.
409, 414, 448 S.E.2d 303, 306 (1994) (holding the parents' failure
to “obtain[] continued counseling, a stable home, stable
employment, and [attend] parenting classes” was sufficient to show
a probability that neglect would be repeated if the child were
returned to the care of the parents). Accordingly, we affirm the
trial court's conclusion that there were grounds for termination on
the basis of neglect pursuant to N.C.G.S. § 7B-1111(a)(1).
Because we conclude that the grounds for termination have been
established under N.C.G.S. § 7B-1111(a)(1), we do not address
mother's remaining argument regarding the additional ground relied
upon by the trial court under N.C.G.S. § 7B-1111(a)(2).
In re
Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (holding
that a finding based upon one statutory ground is sufficient to
support the termination of parental rights).
Affirmed.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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