An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-786 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN THE MATTER OF:
Wake County No. 11 JT 338 A.U.B.-M.
Appeal by Respondent from order entered 9 April 2013 by
Judge Margaret Eagles in District Court, Wake County. Heard in
the Court of Appeals 10 December 2013.
Office of the Wake County Attorney, by Deputy Wake County Attorney Roger A. Askew, for Wake County Human Services, Petitioner-Appellee.
Ellis & Winters LLP, by Lenor Marquis Segal, for Guardian ad Litem.
Mary McCullers Reece for Respondent-Appellant.
McGEE, Judge.
Respondent-Appellant Father (“Respondent”) appeals from an
order terminating his parental rights to his daughter A.U.B-M.
(“the child”). Respondent challenges the grounds for
termination found by the trial court. We affirm. -2- The child was born on 23 December 2011. Following the
birth, both the child and her mother tested positive for
marijuana. Wake County Human Services (“WCHS”) filed a petition
on 29 December 2011 alleging the child was a neglected juvenile.
WCHS obtained nonsecure custody of the child on that date.
Genetic marker testing subsequently confirmed that Respondent is
the child’s biological father. The trial court adjudicated the
child as a neglected juvenile at a hearing on 21 March 2012 and
continued legal custody with WCHS. At the close of a permanency
planning hearing on 23 October 2012, the trial court directed
that a permanent plan of adoption be pursued. The child’s
mother relinquished the child for adoption.
WCHS filed a motion for the termination of Respondent’s
parental rights on 2 January 2013. The trial court conducted an
evidentiary hearing upon the motion on 19 March 2013. The trial
court filed an order on 9 April 2013 terminating Respondent’s
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)
(neglect) (2011); N.C. Gen. Stat. § 7B-1111(a)(2) (failure to
make reasonable progress in correcting the conditions which led
to child’s placement in foster care); and N.C. Gen. Stat. § 7B-
1111(a)(6) (incapability of providing for the proper care and -3- supervision of child). Respondent filed notice of appeal on 2
May 2013.
A trial court must find, based on clear, cogent and
convincing evidence, the existence of one or more grounds listed
by statute in order to terminate parental rights. N.C. Gen.
Stat. § 7B-1111(a) (2011); In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997). We review a trial court’s order
terminating parental rights to determine whether the findings of
fact are supported by clear, cogent and convincing evidence and
whether the conclusions of law are supported by the findings of
fact. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6
(2004). We conduct de novo review of the trial court’s
conclusions of law. In re S.N., X.Z., 194 N.C. App. 142, 146,
669 S.E.2d 55, 59 (2008).
A parent neglects a child by failing to provide proper
care, supervision, discipline or a safe environment or by
abandoning the child. N.C. Gen. Stat. § 7B-101(15) (2011). “A
finding of neglect sufficient to terminate parental rights must
be based on evidence showing neglect at the time of the
termination proceeding.” Young, 346 N.C. at 248, 485 S.E.2d at
615. The trial court must consider evidence of any changed
circumstances since the time of a prior adjudication and the -4- probability that the child will be neglected if returned to the
parent’s care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d
227, 232 (1984).
Respondent contends that, at the time of the termination
hearing, the circumstances did not support a conclusion that
Respondent was neglecting the child, or was likely to neglect
the child if she was given to Respondent’s care. Respondent
argues he has done the best he could under the circumstances of
his incarceration by enrolling in classes offered by the prison.
The trial court found as fact that, at the time of the
filing of the petition to terminate rights, Respondent was
incarcerated in Florida on two convictions of felony possession
of cocaine, with an expected release date in September 2013.
Respondent was previously incarcerated for four years on a
conviction of armed robbery and was released from that
incarceration in 2010. While out of prison, Respondent was
involved in a relationship with the child’s mother. Respondent
learned the mother was pregnant with the child in April of 2011.
Respondent returned to prison in December 2011 for the
convictions of the drug offense. Six and one-half of the
previous eight years of Respondent’s life have been spent -5- incarcerated upon serious felony charges. Respondent has not
had any contact with the child.
The trial court also found that in Respondent’s case and
visitation plans, Respondent was ordered to, inter alia: (1)
complete a substance abuse assessment and follow through with
the recommendations of that assessment, which included attending
meetings of treatment groups and AA/NA at a minimum of once
weekly; (2) complete a psychological evaluation or mental health
assessment as provided by the prison and comply with the
recommendations of the assessment, such as receiving therapy or
taking prescribed medications; (3) complete all components of
the Family Integrity Program; (4) complete his Parenting II
group and demonstrate safe and nurturing parenting skills during
visitations with the child; (5) participate in meetings and
court hearings involving the child, including by his attorney or
by mail; (6) maintain contact with WCHS bi-weekly by mail until
released from prison; and (7) establish and maintain a safe,
stable home free of substance abuse, criminal activity,
violence, and transient household members. Respondent was
offered the opportunity to register for AA/NA classes and
participate in a Family Integrity Program, which is a
comprehensive 100-hour program offering parenting, anger -6- management and life skills training. Respondent attended only
twelve hours each of the AA/NA classes and the Family Integrity
Program before he dropped out of both. Respondent needed
another six months to complete the program. Respondent also had
not completed a mental health or substance abuse assessment.
Although a WCHS social worker provided Respondent with multiple
postage-paid envelopes, Respondent failed to correspond with the
social worker bi-weekly as ordered by the trial court, but
instead mailed them on a monthly basis only.
The social worker responsible for Respondent’s case
testified that Respondent’s mail correspondence did not include
any cards, gifts or anything for the child. The report prepared
for the termination hearing showed that placement of the child
with a paternal relative was unavailable. Respondent proposed
to live with the child at his mother’s residence after he was
released from prison, but a home study conducted by Florida
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-786 NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
IN THE MATTER OF:
Wake County No. 11 JT 338 A.U.B.-M.
Appeal by Respondent from order entered 9 April 2013 by
Judge Margaret Eagles in District Court, Wake County. Heard in
the Court of Appeals 10 December 2013.
Office of the Wake County Attorney, by Deputy Wake County Attorney Roger A. Askew, for Wake County Human Services, Petitioner-Appellee.
Ellis & Winters LLP, by Lenor Marquis Segal, for Guardian ad Litem.
Mary McCullers Reece for Respondent-Appellant.
McGEE, Judge.
Respondent-Appellant Father (“Respondent”) appeals from an
order terminating his parental rights to his daughter A.U.B-M.
(“the child”). Respondent challenges the grounds for
termination found by the trial court. We affirm. -2- The child was born on 23 December 2011. Following the
birth, both the child and her mother tested positive for
marijuana. Wake County Human Services (“WCHS”) filed a petition
on 29 December 2011 alleging the child was a neglected juvenile.
WCHS obtained nonsecure custody of the child on that date.
Genetic marker testing subsequently confirmed that Respondent is
the child’s biological father. The trial court adjudicated the
child as a neglected juvenile at a hearing on 21 March 2012 and
continued legal custody with WCHS. At the close of a permanency
planning hearing on 23 October 2012, the trial court directed
that a permanent plan of adoption be pursued. The child’s
mother relinquished the child for adoption.
WCHS filed a motion for the termination of Respondent’s
parental rights on 2 January 2013. The trial court conducted an
evidentiary hearing upon the motion on 19 March 2013. The trial
court filed an order on 9 April 2013 terminating Respondent’s
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1)
(neglect) (2011); N.C. Gen. Stat. § 7B-1111(a)(2) (failure to
make reasonable progress in correcting the conditions which led
to child’s placement in foster care); and N.C. Gen. Stat. § 7B-
1111(a)(6) (incapability of providing for the proper care and -3- supervision of child). Respondent filed notice of appeal on 2
May 2013.
A trial court must find, based on clear, cogent and
convincing evidence, the existence of one or more grounds listed
by statute in order to terminate parental rights. N.C. Gen.
Stat. § 7B-1111(a) (2011); In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997). We review a trial court’s order
terminating parental rights to determine whether the findings of
fact are supported by clear, cogent and convincing evidence and
whether the conclusions of law are supported by the findings of
fact. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6
(2004). We conduct de novo review of the trial court’s
conclusions of law. In re S.N., X.Z., 194 N.C. App. 142, 146,
669 S.E.2d 55, 59 (2008).
A parent neglects a child by failing to provide proper
care, supervision, discipline or a safe environment or by
abandoning the child. N.C. Gen. Stat. § 7B-101(15) (2011). “A
finding of neglect sufficient to terminate parental rights must
be based on evidence showing neglect at the time of the
termination proceeding.” Young, 346 N.C. at 248, 485 S.E.2d at
615. The trial court must consider evidence of any changed
circumstances since the time of a prior adjudication and the -4- probability that the child will be neglected if returned to the
parent’s care. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d
227, 232 (1984).
Respondent contends that, at the time of the termination
hearing, the circumstances did not support a conclusion that
Respondent was neglecting the child, or was likely to neglect
the child if she was given to Respondent’s care. Respondent
argues he has done the best he could under the circumstances of
his incarceration by enrolling in classes offered by the prison.
The trial court found as fact that, at the time of the
filing of the petition to terminate rights, Respondent was
incarcerated in Florida on two convictions of felony possession
of cocaine, with an expected release date in September 2013.
Respondent was previously incarcerated for four years on a
conviction of armed robbery and was released from that
incarceration in 2010. While out of prison, Respondent was
involved in a relationship with the child’s mother. Respondent
learned the mother was pregnant with the child in April of 2011.
Respondent returned to prison in December 2011 for the
convictions of the drug offense. Six and one-half of the
previous eight years of Respondent’s life have been spent -5- incarcerated upon serious felony charges. Respondent has not
had any contact with the child.
The trial court also found that in Respondent’s case and
visitation plans, Respondent was ordered to, inter alia: (1)
complete a substance abuse assessment and follow through with
the recommendations of that assessment, which included attending
meetings of treatment groups and AA/NA at a minimum of once
weekly; (2) complete a psychological evaluation or mental health
assessment as provided by the prison and comply with the
recommendations of the assessment, such as receiving therapy or
taking prescribed medications; (3) complete all components of
the Family Integrity Program; (4) complete his Parenting II
group and demonstrate safe and nurturing parenting skills during
visitations with the child; (5) participate in meetings and
court hearings involving the child, including by his attorney or
by mail; (6) maintain contact with WCHS bi-weekly by mail until
released from prison; and (7) establish and maintain a safe,
stable home free of substance abuse, criminal activity,
violence, and transient household members. Respondent was
offered the opportunity to register for AA/NA classes and
participate in a Family Integrity Program, which is a
comprehensive 100-hour program offering parenting, anger -6- management and life skills training. Respondent attended only
twelve hours each of the AA/NA classes and the Family Integrity
Program before he dropped out of both. Respondent needed
another six months to complete the program. Respondent also had
not completed a mental health or substance abuse assessment.
Although a WCHS social worker provided Respondent with multiple
postage-paid envelopes, Respondent failed to correspond with the
social worker bi-weekly as ordered by the trial court, but
instead mailed them on a monthly basis only.
The social worker responsible for Respondent’s case
testified that Respondent’s mail correspondence did not include
any cards, gifts or anything for the child. The report prepared
for the termination hearing showed that placement of the child
with a paternal relative was unavailable. Respondent proposed
to live with the child at his mother’s residence after he was
released from prison, but a home study conducted by Florida
authorities was negative. Attempts to place the child with
three other paternal relatives were unsuccessful.
Although his options for showing affection are greatly limited, the respondent will not be excused from showing interest in the child's welfare by whatever means available. The sacrifices which parenthood often requires are not forfeited when the parent is in custody. -7- Whittington v. Hendren (In re Hendren), 156 N.C. App. 364, 368,
576 S.E.2d 372, 376 (2003). The trial court’s findings reflect
that Respondent has not made those sacrifices. He dropped out
of classes designed to help him be a parent to the child and
provide a safe, secure and loving home for her. He dropped out
of programs designed to help him overcome drug and alcohol abuse
issues. He has not taken advantage of opportunities to
cultivate a relationship with the child. Respondent does not
have an acceptable plan for caring for the child after he is
released from incarceration.
We conclude the trial court’s findings of fact support a
conclusion that Respondent has neglected the child and that it
is likely the neglect will continue. We affirm the trial
court’s conclusion that grounds exist pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1) to terminate Respondent’s rights.
Because a finding of one ground will support termination of
parental rights, we need not discuss Respondent’s arguments
concerning the other grounds for termination of his rights. In
re P.L.P., 173 N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005).
We affirm the order terminating Respondent’s parental
rights.
Affirmed. -8- Judges McCULLOUGH and DILLON concur.
Report per Rule 30(e).