Opinion
No. COA10-1393
Filed 21 June 2011 This case not for publication
Appeal by Respondent-Father from order entered 29 June 2010 by Judge Monica Leslie in District Court, Clay County. Heard in the Court of Appeals 24 May 2011.
Chester M. Jones for Clay County Department of Social Services, Petitioner-Appellee. Levine Steward, by James E. Tanner III, for Respondent-Appellant Father.
Clay County No. 09 JT 7.
C.G.M. (Respondent) appeals from an order entered 29 June 2010, terminating his parental rights to his minor child, C.G.M., II (the Juvenile). The Juvenile was born in August 2003. Respondent and the Juvenile's mother (the mother) were not married, and they separated when the Juvenile was approximately six months old. The Clay County Department of Social Services (Petitioner) became involved with the Juvenile in November 2006, as a result of an investigation regarding family violence between the mother and the mother's live-in boyfriend. Petitioner entered into a safety plan with the mother on 17 November 2006, and allowed the Juvenile to remain in the mother's custody. However, Petitioner subsequently learned that the mother had violated the safety plan. Petitioner assumed non-secure custody of the Juvenile, and filed a petition alleging that the Juvenile was a neglected juvenile.
After a hearing on 17 April 2007, the trial court entered adjudication and disposition orders finding that the Juvenile was a neglected juvenile. It its disposition order, the trial court found that Petitioner had sought to work with Respondent. It also found that Respondent had tested positive for methamphetamine. The trial court continued custody of the Juvenile with Petitioner, and ordered Respondent to attend substance abuse counseling and to follow all recommendations that resulted from the counseling. Additionally, the trial court awarded Respondent weekly supervised visitation with the Juvenile.
The trial court held a review hearing on 5 September 2007. In its order from that hearing, the trial court found Respondent had attended a substance abuse assessment, but had not undergone any further treatment or counseling. The trial court found that Petitioner had requested that Respondent submit to a drug screen in 2007, but Respondent had failed to do so. Additionally, the trial court found that Respondent had stated he did not want to be the primary caregiver for the Juvenile, but that he did want regular visitation with the Juvenile. Petitioner retained custody of the Juvenile and was ordered to follow up with Respondent's substance abuse assessor to determine if further drug treatment was necessary.
The trial court filed a second review order on 14 February 2008 in which it found that Respondent had submitted to drug screens on 23 August 2007 and 1 November 2007, and that the results of both screens were negative. However, the trial court also found that a home study had been done on the home in which Respondent resided, but that the home had not been approved for the placement of the Juvenile. The trial court continued custody of the Juvenile with Petitioner and set the permanent plan for the Juvenile as reunification with Respondent or the mother.
In an order dated 23 December 2008, the trial court relieved Petitioner of any need to continue efforts toward reunification of the Juvenile with Respondent and the mother. The trial court changed the permanent plan for the Juvenile to adoption and authorized Petitioner to institute proceedings to terminate the parental rights of Respondent and the mother. The trial court found that bi-weekly family therapy sessions had been discontinued because Respondent and the mother had failed to follow through with the sessions. Home studies of Respondent's home had been performed three times and all were "negative and were turned down." The trial court did find that Respondent had not had any issues with methamphetamine within the last year. However, Respondent had tested positive for marijuana in May and July of 2008. Further, Respondent had a history of unstable living situations, having lived in four different homes since the Juvenile was placed in Petitioner's custody. Additionally, the trial court found Respondent had missed two of ten scheduled visits with the Juvenile, and that Respondent's inconsistent visitation had caused "negative issues" for the Juvenile. In a subsequent review and permanency planning order entered after a hearing on 18 May 2009, the trial court reduced Respondent's visitation with the Juvenile to once a month.
Petitioner filed a petition to terminate Respondent's parental rights on 13 March 2009. Petitioner alleged grounds existed to terminate Respondent's parental rights in that Respondent neglected the Juvenile, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), and willfully left the Juvenile in foster care or placement outside the home for more than twelve months without showing to the satisfaction of the trial court that he had made reasonable progress under the circumstances in correcting those conditions which led to the removal of the Juvenile, pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). After hearings on 4 February and 25 March 2010, the trial court entered separate adjudication and disposition orders on 29 June 2010, terminating Respondent's parental rights to the Juvenile. The trial court found that both grounds alleged in the petition existed, and that it was in the best interests of the Juvenile to terminate Respondent's parental rights. The trial court also terminated the parental rights of the mother. Respondent appeals.
Respondent argues the trial court erred in concluding grounds existed to terminate his parental rights based on neglect. Respondent contends he was not the custodial parent and had no involvement in the circumstances that led to the initial adjudication of neglect. Respondent further argues that there was no evidence of neglect at the time of the termination hearing. We disagree.
"Termination of parental rights is a two-step process. In the first phase of the termination hearing, the petitioner must show by clear, cogent and convincing evidence that a statutory ground to terminate exists." In re S.N., X.Z., 194 N.C. App. 142, 145-46, 669 S.E.2d 55, 58 (2008) (citations omitted), aff'd, 363 N.C. 368, 677 S.E.2d 455 (2009).
If the petitioner succeeds in establishing the existence of any one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111, the trial court moves to the second, or dispositional, stage, where it determines whether it is in the best interests of the child to terminate the parental rights.
In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5 (2004) (citations and quotation marks omitted). "On appeal, `[o]ur standard of review for the termination of parental rights is whether the [trial] court's "findings of fact are based upon clear, cogent and convincing evidence" and whether the "findings support the conclusions of law."'" In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003) (citation omitted). However, "[t]he trial court's conclusions of law `are fully reviewable de novo by the appellate court.'" In re S.N., X.Z., 194 N.C. App. at 146, 669 S.E.2d at 59 (citation omitted).
Grounds exist to terminate parental rights where the parent has neglected the juvenile such that the trial court finds the juvenile to be a neglected juvenile within the meaning of N.C. Gen. Stat. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1) (2009). A "neglected juvenile" is defined as:
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) (2009). "To prove neglect in a termination case, there must be clear, cogent and convincing evidence of (1) neglect and (2) as a consequence of the neglect, `the juvenile has sustained "some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment[.]"'" In re Ore, 160 N.C. App. 586, 589, 586 S.E.2d 486, 488 (2003) (citation omitted, alterations in the original). Additionally, "[i]n 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.'" In re L.O.K., J.K.W., T.L.W. T.L.W., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (citation omitted). However, "[w]here, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citation omitted). "[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).
Where a trial court considers a prior adjudication of neglect, "[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." Id. at 715, 319 S.E.2d at 232 (citation omitted). In assessing changed conditions, the trial court may consider whether the parents have "made any meaningful progress in eliminating the conditions that led to the removal of [the] children." In re Leftwich, 135 N.C. App. 67, 72, 518 S.E.2d 799, 803 (1999). A trial court may terminate parental rights based upon a prior adjudication of neglect if "the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to her parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
In the case before us, the trial court made the following findings of fact which support its conclusion that grounds exist to terminate Respondent's parental rights because he neglected the Juvenile and that the neglect was likely to continue into the future:
37. That as of April 17, 2007, . . .
. . . .
J. That [Respondent] has tested positive for methamphetamine.
. . . .
39. That as of April 17, 2007, . . . the [trial] [c]ourt concluded as a matter of law that the Minor Juvenile was a neglected juvenile within the meaning of N.C. Gen. Stat. § 7B-101(15).
40. That as of April 17, 2007, . . . the [trial] [c]ourt did order:
. . . .
L. That [Respondent] shall attend substance abuse counseling and follow the recommendations that result from the same.
41. That as of September 5, 2007. . . .:
. . . .
L. That in May of 2007, [Petitioner] did request a drug screen be done by [Respondent] and the same was not done by [Respondent];
M. That [Respondent] does not want to be the primary caregiver for the Minor Juvenile and he lives separate and apart from the biological mother of the Minor Juvenile. However, [Respondent] does want to have regular visitation with the Minor Juvenile;
N. That [Respondent] did attend a substance abuse assessment, but he has not undergone any further treatment or counseling and he has stated unto the [trial] [c]ourt that he has been released from any substance abuse treatment. The [trial] [c]ourt does desire for [Petitioner] to follow-up with [Respondent's] substance abuse assessor to determine whether or not he is in need of any substance abuse treatment;
. . . .
44. That as of December 4, 2007. . . .:
. . . .
C. That [Respondent] has been drug tested on August 23, 2007, and on November 1, 2007, and he has been negative for drugs in each test.
. . . .
47. That as of July 30, 2008 . . .:
. . . .
H. That there have been bi-weekly family sessions between the Minor Juvenile and the Juvenile's therapist. The biological mother and [Respondent] did attend some;
I. That such family sessions were discontinued due to the biological mother's and [Respondent's] failure to follow through;
J. The family sessions . . . began again on December 15, 2007;
K. That the biological mother and [Respondent] continued to miss the family sessions and did not call to cancel the same;
M. That there have been three home studies of [Respondent's] home and all three have been negative and turned down;
N. That the biological mother of the Minor Juvenile and [Respondent] were involved with methamphetamine when this case first began;
O. That the biological mother of the Minor Juvenile and [Respondent] have not had issues with methamphetamine within the last year;
. . . .
Q. That [Respondent] did test positive for marijuana on May 8, 2008. . . .;
R. That the biological mother and [Respondent] have both had and continue to have a history of unstable relationships and unstable homes;
. . . .
AA. That since the last review and until May, 2008, [Respondent] has had 10 potential visits with the Juvenile made available to him and he has missed 2 of the same;
. . . .
UU. That there was a [time] from mid-December until February 14, 2008, where [Respondent] did not have contact with [Petitioner] or the Minor Juvenile.
VV. When [Respondent] did not call or contact anyone in over six weeks this made the Minor Juvenile very sad;
. . . .
51. That as of May 18, 2009,. . . .
. . . .
D. That the Minor Juvenile misses his parents when they have not shown or canceled visits and [this] is reflected in his behavior and sadness at those times;
E. That [Respondent] has not attended visits for several months;
. . . .
63. That at the May 18, 2009, review and permanency planning hearing . . . the visitation of [Respondent] with the Minor Juvenile was changed to one time per month. He exercised one of those visitations on August 24, 2009. He saw the Minor Juvenile on one other occasion on a [trial] [c]ourt date on January 11, 2010. [Respondent] has told Social Worker Hager that he has not attended visits with the Minor Juvenile due to not having money for gas to attend the visitation. However, [Respondent] receives approximately $900.00 per month in disability. [Respondent] has a North Carolina Drivers License and transportation and has made every [trial] [c]ourt Date. [Respondent] smokes approximately a pack of cigarettes per day.
64. [Respondent] made contact with the Social Worker approximately every other month.
65. That Social Worker Hager met with [Respondent] on October 29, 2009, at which time he stated that he wanted to try to obtain custody of the Minor Juvenile. He stated that he was moving into a new home and offered to take a drug test. . . .
66. That [Respondent] did take a drug test on October 29, 2009, at Angel Urgent Care and the same was positive for Methamphetamine and Marijuana.
67. That since [Respondent] was told about the positive drug screen, he has had less contact with the Social Worker than prior to the positive screen.
. . . .
69. That prior to [Petitioner] being relieved of reasonable efforts, neither of the biological parents were making substantial progress on their case plans or providing a stable place where the Minor Juvenile could live.
We note that Respondent does not specifically challenge any of the trial court's findings of fact regarding Respondent's visitation with the Juvenile or contact with Petitioner. Accordingly, those findings of fact are binding on this Court. In re M.D., N.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009) (holding "findings of fact are deemed to be supported by sufficient evidence and are binding on appeal" where the appellant does not challenge the findings "as lacking adequate evidentiary support").
Respondent does argue that the prior adjudication of neglect of the Juvenile is not applicable to Respondent because Respondent was not the custodial parent of the Juvenile and was not involved in the events upon which the adjudication is based. Respondent's argument, however, is misplaced, as an adjudication of neglect is not "as to" a parent. Rather, "[t]he purpose of abuse, neglect and dependency proceedings is for the [trial] court to determine whether the juvenile should be adjudicated as having the status of abused, neglected or dependent." In re J.S., 182 N.C. App. 79, 86, 641 S.E.2d 395, 399 (2007) (emphasis added).
The purpose of the adjudication and disposition proceedings should not be morphed on appeal into a question of culpability regarding the conduct of an individual parent. The question this Court must look at on review is whether the [trial] court made the proper determination in making findings and conclusions as to the status of the juvenile.
Id. Accordingly, the use of a prior adjudication of neglect in a subsequent proceeding to terminate parental rights is not predicated on the culpability of the parent in the acts which gave rise to the adjudication of neglect. Here, the trial court properly considered the prior adjudication of neglect.
Respondent also argues the trial court's findings of fact regarding Respondent's past drug use are not supported by any competent evidence presented at the termination hearing. Respondent contends the findings of fact regarding his past drug use, other than the 29 October 2009 test results, are only supported by the prior dispositional orders entered in the juvenile case. Respondent argues the prior dispositional orders cannot support the trial court's current findings of fact because the dispositional orders are based upon a lower evidentiary standard than what is required for an adjudication of termination of parental rights.
However, at the termination hearing, Dr. Michael Dennis Golightly testified that Respondent tested positive for both methamphetamine and marijuana on 29 October 2009. Ms. Terry Hager (Ms. Hager), a social worker employed by Petitioner, also testified that Respondent tested positive for methamphetamine on 29 October 2009; that he had previously tested positive for drugs in April of 2007 and in May of 2008. Ms. Hager further testified that part of Respondent's case plan included substance abuse counseling and that she informed Respondent of counseling services that were available to him. Moreover, Respondent himself testified that he had used marijuana and methamphetamines, had taken quite a few drug tests as part of the underlying juvenile case, and had probably failed more drug tests than he had passed. Respondent further testified that he had participated in substance abuse counseling, but had still used drugs after completing the counseling. Based on this testimony, we hold the trial court's findings of fact regarding Respondent's drug use and substance abuse counseling are supported by competent evidence.
After careful review of the record, we hold the trial court's findings of fact regarding Respondent's continuing drug use and lack of visitation with the Juvenile support the trial court's conclusion that Respondent had neglected the Juvenile up to, and continuing through, the date of the termination hearing. Respondent's failure to make substantial progress in dealing with his use of marijuana and methamphetamine establishes a probability of repetition of neglect should the Juvenile be returned to Respondent's custody. While the trial court did not specifically state there was a "probability of repetition of neglect," the trial court's conclusion that Respondent's neglect of the Juvenile was likely to continue into the future is sufficient to support its conclusion. Additionally, Respondent's inconsistent visitation over the course of several years, and almost complete lack of visitation since 18 May 2009, demonstrate an abandonment of the Juvenile at the time of the hearing, which is sufficient to establish the ground of neglect.
Because we hold the trial court did not err in concluding grounds existed to terminate Respondent's parental rights to the Juvenile based on neglect, we do not address Respondent's additional arguments regarding the trial court's conclusion that grounds to terminate his parental rights also existed under N.C. Gen. Stat. § 7B-1111(a)(2). In re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005) (holding "where the trial court finds multiple grounds on which to base a termination of parental rights, and `an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds'" (citation omitted)), aff'd, 360 N.C. 360, 625 S.E.2d 779 (2006). Since Respondent has not challenged the trial court's ruling that termination of his parental rights was in the best interests of the Juvenile, we affirm the trial court's order terminating Respondent's parental rights to the Juvenile.
Affirmed.
Judges GEER and HUNTER, JR. concur.
Report per Rule 30(e).