Opinion
No. 07-1447.
Filed April 1, 2008.
Wilkes County Nos. 04J23, 04J25.
Appeal by respondent from order entered 7 September 2007 by Judge David V. Byrd in Wilkes County District Court. Heard in the Court of Appeals 17 March 2008.
Paul E. Freeman, Jr., for petitioner-appellee, Wilkes County Department of Social Services. John M. Moye for respondent-appellee, Guardian Ad Litem. Mercedes O. Chut for respondent-appellant.
Mr. N.S., the biological father ("respondent"), appeals an order terminating his parental rights to his daughters, T.R.S. and B.T.S. We affirm.
On 23 February 2004, the Wilkes County Department of Social Services ("DSS") filed juvenile petitions alleging that T.R.S. and B.T.S. (collectively "the children") were neglected. Specifically, the juvenile petitions alleged that D.S. ("the mother") violated a protection agreement by being intoxicated around the children on at least three occasions after signing the agreement on 27 January 2004. The petitions also alleged that the mother took the children to respondent on the morning of 23 January 2004; that the mother's current boyfriend admitted to respondent that he had "pedophil[e] tendencies" and that respondent told the mother he did not want his children around her current boyfriend. The petitions further alleged that the respondent admitted to a "past history of cocaine use and a sporadic current use of marijuana," as well as "a history of domestic violence between the mother and father of the children." DSS filed a petition and the court ordered non-secure custody of the children the same day.
On 24 May 2004, the trial court held a hearing on the neglect petitions. By order filed 16 June 2004, the trial court found that in March of 2004, the mother tested positive for cocaine and marijuana; that respondent tested positive for marijuana; and that respondent stated that he uses marijuana on a daily basis. The trial court also found that respondent was enjoying visitation privileges with T.R.S. and B.T.S. during the period in which the mother was found to be intoxicated in violation of the Protection Plan; that since his children's removal respondent has called the social worker and brought clothes for them; and that respondent "has indicated to the Social Worker that he believes the children need to stay in foster care until he is able to improve his situation." The trial court determined that it would be "contrary to the welfare of the children" to return them to the mother or place them with respondent. Based on these findings, the trial court concluded that T.R.S. and B.T.S. were neglected juveniles.
On 7 December 2004, the trial court conducted a hearing to determine the appropriate custodial placement for T.R.S. and B.T.S. A favorable home study of the children's paternal uncle, who lives in New York, was entered into evidence. In its order entered in January 2005, the trial court found that although respondent stated that he had not used drugs since June of 2004, respondent tested positive for marijuana in July of 2004 and positive for cocaine in October of 2004. The trial court found respondent's claim that he tested positive because of second-hand smoke not to be credible. The trial court also found respondent's statement that he is "a great father" to be "outrageous given the father's admitted use of drugs and alcohol." The trial court found that the paternal uncle's home was an appropriate placement for T.R.S. and B.T.S. and that the home was approved by the Interstate authorities in North Carolina and New York. Legal and physical custody of the children were continued with DSS and the children were physically placed in the home of the paternal uncle.
In April of 2005, the trial court awarded legal and physical custody of T.R.S. and B.T.S. to the paternal uncle and his wife, with respondent's consent. The trial court ordered "[a]ny visitation between the children and their parents shall be on a schedule and under such circumstances as determined by the custodians[]." After the paternal uncle's permanent residence was destroyed by fire and the paternal uncle was laid off from employment he held for several years, the New York authorities requested DSS resume legal custody of T.R.S. and B.T.S. in order for DSS to provide financial assistance to the children. The trial court held a review hearing on 19 September 2005. In its order, the trial court found [n]o evidence was presented that the biological parents of the children have changed their circumstances since the children were placed into the legal and physical custody of their aunt and uncle. Indeed, it appears from the Summary of the Social Worker that the father of the children has continued to use and abuse controlled substances.
The trial court ordered legal custody placed with DSS and physical custody to remain with the paternal uncle and his wife.
DSS subsequently moved for a review hearing, requesting the permanent plan for the children to be changed to termination of parental rights and adoption. The trial court conducted a permanency planning hearing on 12 December 2005. By order filed 30 December 2005, the trial court found that "[n]either parent of the children has had any contact with the children for many months." The court also found that respondent "is believed to be living somewhere in the State of New York. He has had sporadic contact with his children, but this contact has not gone well. He is continuing to abuse drugs." At a June 2006 review hearing of the permanent plan, the trial court found that respondent "has been unstable in his residence . . . at the last review hearing, the father was living in the State of New York; and that the father is currently residing in the State of Tennessee." Adoption by the paternal uncle was approved in the permanent plan. The trial court further found that the "aunt and uncle continue to wish to adopt the children; and that the children desire to be adopted." The court concluded that adoption was the appropriate plan and ordered DSS to initiate termination proceedings. On 23 June 2006, DSS filed separate petitions to terminate the parental rights of respondent and the mother as to T.R.S. and B.T.S. based upon neglect (N.C. Gen. Stat. § 7B-1111(a)(1)), for willfully leaving the children in foster care without making progress under the circumstances (N.C. Gen. Stat. § 7B-1111(a)(2)), for willfully failing to pay a reasonable portion of the cost for the children (N.C. Gen. Stat. § 7B-1111(a)(3)), and for willfully abandoning the children (N.C. Gen. Stat. § 7B-1111(a)(7)). The trial court terminated the parental rights of respondent and the mother on all four grounds. The mother did not appear at the trial and did not file a notice of appeal. Only respondent appeals from the order of termination.
A termination of parental rights proceeding is conducted in two phases: (1) adjudication and (2) disposition. See In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudication phase, the petitioner has the burden of proving by clear, cogent, and convincing evidence that one or more of the statutory grounds for termination under N.C. Gen. Stat. § 7B-1111(a) exists. Id. If a petitioner meets its burden of proving one or more statutory grounds for termination, the trial court then moves to the disposition phase where it must decide whether termination is in the child's best interests. Id.
The standard of review of the adjudication phase of termination of parental rights is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support its conclusions of law. See In re Oghenekevebe, 123 N.C. App. 434, 439-41, 473 S.E.2d 393, 397-99 (1996). Findings of fact are conclusive on appeal if they are supported by "ample, competent evidence," even if there is evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). "So long as the findings of fact support a conclusion based on [the statute], the order terminating parental rights must be affirmed." In re Oghenekevebe, 123 N.C. App. at 436, 473 S.E.2d at 395-96.
Respondent contends the trial court erred by finding and concluding that sufficient grounds existed to terminate his parental rights. Preliminarily, we note that although the trial court concluded that several grounds existed pursuant to sections 7B-1111(a)(1), (2), (3) and (7) of the North Carolina General Statutes to terminate respondent's parental rights, we find it dispositive that the evidence is sufficient to support termination of respondent's parental rights under section 7B-1111(a)(1). See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (a finding of one statutory ground is sufficient to support the termination of parental rights).
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) (2007). Section 7B-101(15) defines "neglected 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) (2007). "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, 814-15, 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). Further, a trial court may also consider evidence of prior adjudications of neglect of a respondent's other children. See In re Allred, 122 N.C. App. 561, 564, 471 S.E.2d 84, 86 (1996) ("a respondent will not be prejudiced in a properly conducted hearing by the admission of evidence of the prior abuse of another of respondent's children").
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." In re Ballard, 311 N.C. at 715, 319 S.E.2d at 232. Thus,
if 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.
In re Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501.
In support of its conclusion that respondent's parental rights should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), the trial court entered the following pertinent findings of fact:
15. The children were removed from their parents as a result of the mother's use of illegal drugs and alcohol. At the time of the children's removal, [respondent and the mother] were separated and the children were residing primarily with their mother.
. . . .
17. At the time of the children's removal, [respondent] was an admitted daily drug user, and he was unable to provide proper care for the children at the time of their removal. Reference is made to Judge Gregory's adjudicatory Order wherein the father admitted that he was not able to provide for the children at the time of their removal.
18. When these matters were reviewed in December, 2004, [respondent] seemed to have had a change of heart, blaming the children's mother for all of the problems and declaring himself to be a "great father." However, the review Order clearly reflects that the presiding Judge at such review found the latter statement to be "outrageous" given [respondent] admitted use of drugs and alcohol. Since that time, [respondent] also testified that he had not used drugs since June, 2004, but this was proven to be incorrect based upon drug test results. The undersigned finds this to be noteworthy and damaging to [respondent's] creditability [sic], especially due to his testimony before the undersigned in the instant hearing that he has not used drugs for a long period of time. The Court also finds that from a September, 2005 review that [respondent's] drug abuse had continued.
. . . .
23. Since the children were placed in the Rivera home, [respondent] has had only sporadic contact with the children, and this has not gone well. Specific reference is made to the review Order from December, 2005, with particular reference being made to the Finding of [respondent's] continued drug use. 24. Although [respondent] lived for a time in New York and could have exercised visits with his children, he did not do so because he "wouldn't agree with their terms." [Respondent] testified, and the Court finds, that "jumping through their hoops wasn't acceptable", even though their "hoops" were required drug tests that were perfectly reasonable in light of [respondent's] long term substance abuse. It is clear that [respondent] allowed his pride to stand in the way of showing appropriate concern, attention, and affection for his children.
. . . .
31. Although [respondent and the mother] entered into Family Service Case Plans with the Department of Social Services, neither parent made much, if any progress, in addressing completion of those plans; and that none of the children's parents has made any progress in dealing with those conditions which led to the removal of the children. These failures have been willful and without just cause or excuse. The Court specifically finds that the lack of progress in successfully completing the Family Service Case Plans, the willful lack of contact between the parents and children, the lack of support, the lack of any consistent interest in the children, [respondent's] admitted "giving up" with regard to his efforts to develop a relationship with his children, and [respondent's] lack of stability all indicate that should the children be returned to a parent, there is a substantial risk that the neglect of the children would continue or recur.
. . . .
36. The Court also notes that the undersigned, in its Order from December 5, 2006, found, and hereby adopts, that [respondent] had been difficult to locate and that extensive efforts had been undertaken to serve him with process. . . .
Among these findings, respondent argues only finding of fact 31 is in error. 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 orders entered in the case and testimony from DSS social worker Jessica Wood ("Ms. Wood") and respondent. Ms. Wood testified that the last time that either respondent or the mother saw the children was in early 2005. She further testified that respondent called her "over a year ago, asking about the girls" and that she was "not aware of any" cards, letters or gifts sent by respondent to the children. Respondent testified that he is currently living in Tennessee and has been for "about a year and a half." Respondent testified that he moved to New York to be closer to his children; that the paternal uncle and wife let him talk with the children in the beginning; that the paternal uncle and wife wanted him to take drug tests and more classes; and that he "was cut off completely, because I couldn't agree with their terms." He testified that "having to jump through their hoops was not acceptable." Respondent stated that "I just gave up and figured my kids would see me someday."
The trial court was free to conclude, as it did, that respondent's pattern of drug abuse, his lack of credibility, and his refusal to cooperate with the paternal uncle suggested a probability that neglect 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). The trial court's order terminating respondent's rights as to T.R.S. and B.T.S. is affirmed.
Affirmed.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).