Opinion
No. COA03-444
Filed 6 January 2004 This case not for publication
On writ of certiorari filed by respondent mother to review order filed 21 October 2002 by Judge Joseph M. Buckner in Orange County District Court. Heard in the Court of Appeals 29 October 2003.
Northern Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee. Rebekah W. Davis for respondent-appellant.
Orange County No. 01 J 132.
Bonita Stanford (respondent) seeks review by writ of certiorari of an order filed 21 October 2002 terminating her parental rights over her daughter, Brianna Stanford (the child).
On 17 July 2001, seventeen-year-old respondent enrolled at Hope Meadows, a residential substance abuse treatment program in Orange County, North Carolina. While there, respondent gave birth to the child on 12 August 2001. On 10 November 2001, respondent prematurely left the program with the child even though she did not have provisions or housing plans for the child. The next day, she used cocaine. Two days later, the Orange County Department of Social Services (DSS) took custody of the child under a non-secure order. On 16 November 2001, a consent order was entered findingthe child to be dependent pursuant to N.C. Gen. Stat. § 7B-101(9) and allowing DSS to continue to have custody of the child. On 15 and 17 November 2001, respondent had supervised visits with the child.
With the help of DSS, respondent enrolled in a two-year substance abuse treatment program in Asheville, North Carolina on 21 November 2001. Nine days later, she left the program despite warnings from the program staff and DSS that her departure would frustrate her reunification efforts. In December 2001, respondent informed DSS that she was receiving outpatient substance abuse services in Catawba County, North Carolina.
On 17 January 2002, an adjudication hearing was held, resulting in an order filed 1 March 2002 finding the child to be dependent. After the adjudication hearing, respondent moved to South Carolina. She contacted a treatment program there but did not enroll. Later, she moved back to Catawba County.
While the child was in DSS custody, Joan Hunt, the maternal grandmother, began visiting the child on a bi-weekly basis and was interested in having custody of the child. Respondent came to one of those visits arranged for Ms. Hunt. At a 18 April 2002 hearing, where respondent was absent, the trial court denied the request to give Ms. Hunt custody due to a negative home study and allowed DSS to cease reunification efforts.
At the 19 September 2002 termination hearing, where respondent was again absent, the trial court rejected her counsel's motion to continue and proceeded with the hearing. A staff member of DSStestified that respondent needed to enroll in a residential substance abuse program, that the outpatient services she reportedly received in Catawba County were inappropriate in light of her needs, and that she had not met her goals for substance abuse and mental health treatments, stability, and self-sustenance. A foster parent, who had cared for the child for ten months, also testified that he and his family were willing to adopt the child. In an order filed 21 October 2002, the trial court terminated respondent's parental rights on the grounds of neglect and dependency.
The issues are whether the trial court erred in: (I) denying respondent's motion to continue the termination hearing; (II) concluding respondent neglected her child; (III) permitting the admission of allegedly hearsay statements in the DSS record; and (IV) concluding that termination of parental rights was in the best interest of the child.
I
Respondent first argues the trial court erred in denying her motion to continue the termination hearing. Respondent stated in her brief to this Court that because of her absence at the hearing, evidence of her efforts to participate in treatments for substance abuse and mental health and to obtain employment could not be verified.
"A motion to continue is addressed to the court's sound discretion and will not be disturbed on appeal in the absence of abuse of discretion. Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. The chief consideration is whether granting or denying a continuance will further substantial justice."
In re Humphrey, 156 N.C. App. 533, 538, 577 S.E.2d 421, 425 (2003) (emphasis added) (citation omitted) (affirming the trial court's denial of the respondent's motion to continue the termination of parental rights hearing when she could not provide evidence to justify her absence from the hearing). In the instant case, respondent provided no justification for her absence from the termination hearing. Therefore, respondent failed to meet her burden of demonstrating sufficient grounds for a continuance, and the trial court did not abuse its discretion in denying respondent's motion for continuance.
II
Respondent next contends the trial court's conclusion that respondent neglected her child was not supported by clear, cogent, and convincing evidence. We disagree.
A trial court may terminate the parental rights of a parent upon a finding that she has neglected the juvenile within the meaning of N.C. Gen. Stat. § 7B-101. N.C.G.S. § 7B-1111(a)(1) (2003). As defined in N.C. Gen. Stat. § 7B-101, a neglected juvenile is a "juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent . . .; or who has been abandoned." N.C.G.S. § 7B-101(15) (2003). "`The petitioner seeking termination bears the burden of showing by clear, cogent and convincing evidence that such neglect exists atthe time of the termination proceeding,'" In re Leftwich, 135 N.C. App. 67, 71-72, 518 S.E.2d 799, 803 (1999) (citation omitted), and that there is some physical, mental, or emotional impairment or a substantial risk of such impairment of the juvenile as a result of neglect, In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). On appeal, the trial court's findings of fact are binding "where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary." In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984).
In the instant case, the trial court found:
7. The juvenile was born while [r]espondent . . . was a resident at Hope Meadows, a facility which treats people with substance abuse issues. . . .
8. [DSS] received a referral which led to the filing of a juvenile petition on November 10, 2001. The substance of the referral was that [respondent] left Hope Meadows with her baby. . . .
9. After leaving Hope Meadows, [respondent] admitted to the Social Worker that she had used drugs, had no provisions for the baby, [and] had no housing or plans. She admitted that her temporary residence was not appropriate for a child.
. . . .
12. The last contact [DSS] had with [r]espondent was January 9, 2002 when she attended a Permanency Planning meeting. She has not seen the juvenile, nor inquired of her for the past eight (8) months.
13. By failing to address her substance abuse and drug addictions and by not making any attempts at regaining custody of her daughter, [r]espondent has demonstrated her unwillingness and inability to be aparent.
These findings of fact are supported by the evidence. Respondent had refused to complete several residential substance abuse treatment programs after the birth of her child, against the advice of DSS that the programs were appropriate to her needs and necessary to her parent-child reunification goals. Besides the problem of substance abuse, she also failed to receive mental health treatment and maintain self-sustenance and stability. Therefore, at the time of the termination proceeding, respondent had not made meaningful progress in eliminating the conditions that previously led to the removal of her child. See Leftwich, 135 N.C. App. at 72, 518 S.E.2d at 803 (affirming the trial court's order terminating a mother's parental rights based on neglect and noting that she refused to enroll in a residential treatment facility for alcohol abuse and had not made meaningful progress in eliminating that and other problems); In re Bluebird, 105 N.C. App. 42, 48, 411 S.E.2d 820, 823 (1992) (affirming the trial court's order terminating a mother's parental rights based on neglect and noting that she failed to respond to the suggestions of DSS as to how she could regain custody of her son and to avail herself of the services to remedy the problems which caused her son to be placed in DSS custody).
Evidence of neglect also includes respondent's lack of contact with the child and concern for the child's welfare. As found by the trial court, respondent had not seen nor inquired of her child for the eight months before the termination of parental rightshearing. See Bluebird, 105 N.C. App. at 48, 411 S.E.2d at 823 (noting the respondent attempted to contact her child and DSS only two times during the eighteen-month period when the child was in foster care). In addition, she did not participate in the permanency planning review and termination hearings and provided no justification for her absence.
Therefore, the trial court's order terminating respondent's parental rights is supported by clear, cogent, and convincing evidence that respondent's neglect of her child existed at the time of the termination proceeding and that the child faced a substantial risk of impairment as a result of the neglect. Having concluded the trial court's determination of neglect is supported by the evidence, we need not reach respondent's contention that the trial court's finding as to dependence was not supported by clear, cogent, and convincing evidence. See In re Swisher, 74 N.C. App. 239, 246, 328 S.E.2d 33, 37 (1985).
III
Respondent further argues the trial court erred in admitting hearsay statements in the court record prepared by DSS for the hearing. The statements, made by Hope Meadows staff and recited in the termination order, characterized respondent as impulsive, immature, unable to care for her child, and not ready to stop using drugs.
"Where there is competent evidence to support the court's findings, the admission of incompetent evidence is not prejudicial." In re McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175 (2001) (holding the admission of hearsay testimony of two social workers was not prejudicial because the evidence, exclusive of the testimony, supported the trial court's findings) (citing In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393 (1996)). In this case, the statements made by Hope Meadows staff were hearsay and erroneously admitted; however, the error was not prejudicial because the trial court's findings were otherwise supported by clear, cogent, and convincing evidence, as indicated above. Accordingly, the admission of the statements was not prejudicial, and respondent's assignment of error is therefore overruled.
IV
Respondent finally contends the trial court erred in concluding that the termination of parental rights was in the best interest of the child. Specifically, respondent argues she is becoming mature and has the support of her mother.
Termination of parental rights is a two-stage proceeding. At the adjudication stage the petitioner must show by clear, cogent and convincing evidence that grounds exist to terminate parental rights. If one or more of the grounds listed . . . are shown, then the court moves to the dispositional stage "to determine whether it is in the best interest of the child to terminate the parental rights."
In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000) (citation omitted). The trial court's determination of the child's best interest is to be reviewed under an abuse of discretion standard. See id. at 745, 535 S.E.2d at 374.
The evidence does not support respondent's argument that preserving her parental rights would be in the child's bestinterest. Respondent does not present persuasive evidence of becoming mature and responsible. Moreover, the evidence indicated the child's foster parents had cared for the child for the past ten months and desired to adopt her. In their care, the child was happy, healthy, and attached to the family. See id. at 744-45, 535 S.E.2d 373-74 (holding the trial court did not abuse its discretion in terminating the respondent's parental rights, based on the evidence that the child had developed a close bond with the foster family and that the respondent had not demonstrated she could adequately provide for the needs of the child).
For the reasons herein, we hold the trial court did not abuse its discretion in terminating respondent's parental rights.
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).