Opinion
No. COA95-533
Filed 2 April 1996
Parent and Child § 101 (NCI4th) — termination of parental rights — sufficiency of evidence of neglect The evidence was sufficient to support the trial court's order terminating respondent's parental rights based on neglect of the child where it tended to show that respondent lived in filth and clutter, allowing roaches to crawl on her child, in his car seat and diaper bag, and on dirty clothes, allowing cat feces and cat urine in her home, and allowing dirty dishes and dirty clothes to pile up; she allowed these conditions to exist even after her move to another home; and she gave her child a "milk bottle with contents looking similar to cottage cheese." N.C.G.S. § 7A-289.32(2) and (21).
Am Jur 2d, Parent and Child § 7.
Validity of state statute providing for termination of parental rights. 22 ALR4th 774.
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38 ALR4th 756.
Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect. 44 ALR4th 649.
Appeal by respondent from order entered 3 November 1994 by Judge Michael E. Beale in Moore County District Court. Heard in the Court of Appeals 21 February 1996.
Lapping Lapping, by Stephan Lapping, for petitioner appellee.
Brown Robbins, L.L.P., by Carol M. White, for respondent appellant.
David G. Crockett Law Offices, by Jerry D. Rhoades, Jr., Guardian Ad Litem.
Judge WYNN dissenting.
On 1 November 1994, the trial court entered an adjudication order holding that grounds existed to terminate respondent mother's parental rights based on neglect under N.C. Gen. Stat. § 7A-289.32(2) (1995). A subsequent dispositional order terminated her parental rights. From this order, respondent appeals.
On appeal, respondent contends the trial court erred in terminating her parental rights because the trial court's findings of fact were not based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. We disagree.
Under G.S. § 7A-289.32(2), parental rights may be terminated if the child is neglected by the parent as defined under N.C. Gen. Stat. § 7A-517(21) which provides:
[A neglected juvenile is] [a] juvenile who does not receive proper care, supervision, or discipline from . . . [his] 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 . . . [his] welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7A-517(21) (1995).
The trial court must base its findings of fact on "clear, cogent and convincing evidence," a requirement which establishes an intermediate standard of proof, greater than the preponderance of the evidence standard, but less than the requirement of proof beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984); N.C. Gen. Stat. § 7A-289.30(e) (1995). In a termination case in which the appealing party raises questions about the evidence, our task is to review the evidence to determine whether there is clear, cogent, and convincing evidence to support the findings of fact and to decide whether those findings support the conclusions of law. Id. at 111, 316 S.E.2d at 253.
In the present case, the trial court found that Alvina Street, friend of respondent, observed a roach on the child's face on one occasion and also saw roaches on the car seat, diaper bag, and dirty clothes. Furthermore, on one occasion, Street observed respondent give the child a "milk bottle with contents looking similar to cottage cheese." Additionally, Street testified that respondent's Aberdeen apartment was "extremely cluttered" and that dirty diapers and dirty litter and cat feces were in the apartment. When Street later visited respondent's Pinebluff home, she observed dirty dishes accumulating and dirty clothes piled up. Finally, the trial court found that a few weeks prior to the hearing, Sue Stubbs, an acquaintance of respondent, visited respondent's Carthage home unannounced and found the home smelled of cat urine and found cat feces on the kitchen floor, conditions similar to those she observed at respondent's Pinebluff residence.
Considering this and other evidence, we find the trial court's findings of fact were based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. The evidence showed that the problems which caused the injurious environment had continued and probably would recur. Accordingly, we conclude the trial court did not err in terminating respondent's parental rights.
Affirmed.
Judge MARTIN, Mark D., concurs.
Judge WYNN dissents with separate opinion.