In Re CMS

646 S.E.2d 592, 184 N.C. App. 488, 2007 N.C. App. LEXIS 1433
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 2007
DocketCOA07-108
StatusPublished

This text of 646 S.E.2d 592 (In Re CMS) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CMS, 646 S.E.2d 592, 184 N.C. App. 488, 2007 N.C. App. LEXIS 1433 (N.C. Ct. App. 2007).

Opinion

646 S.E.2d 592 (2007)

In the Matter of C.M.S.

No. COA07-108.

Court of Appeals of North Carolina.

July 3, 2007.

Mark T. Lowder for petitioner-appellee Stanly County Department of Social Services; Vita Pastorini, Albemarle, for appellee Guardian ad Litem.

Janet K. Ledbetter, Hillsborough, for respondent-appellant.

HUNTER, Judge.

Donna S. ("respondent-mother") appeals the termination of her parental rights as to C.M.S. After careful consideration, we affirm.

At the age of five, C.M.S. lived with respondent-mother and respondent-mother's boyfriend, Roger Jernigan, Jr. ("Jernigan"). During her time living with them, on 11 February 2004, the evidence presented at the hearing tended to show the following: C.M.S. witnessed an incident wherein respondent-mother held a gun to someone's head and Jernigan stabbed two men. During the course of this incident, C.M.S. was injured when she was struck in the head by a third party with the butt of a gun. As a result of *594 this affray, C.M.S. was taken into the custody of Stanly County Department of Social Services ("DSS") and placed in the Christian Foster Home where she remains to date. A trial court adjudicated C.M.S. abused and neglected on 8 July 2004.

After being placed in the foster home, C.M.S. disclosed to Stacey McCroskey ("McCroskey"), a DSS social worker, acts of sexual abuse committed by Jernigan against her. The acts included holding C.M.S. down, kissing her genitalia, kissing her on the mouth, inserting his tongue in her mouth, kissing her buttocks while she was undressed, and placing his finger inside her vagina. C.M.S. also had scarring in her vagina and notching to her hymenal ring consistent with sexual abuse.

On 29 October 2004, a second petition was filed by DSS alleging sexual abuse of C.M.S. by Jernigan. C.M.S. testified at this hearing regarding the acts by Jernigan. Dr. Conroy, who conducted the physical examination on C.M.S., corroborated much of C.M.S.'s testimony. C.M.S. also testified that she had informed respondent-mother about the sexual abuse, and that respondent-mother failed to protect her from those acts. On 14 July 2005, C.M.S. was adjudicated abused by the trial court for a second time.

On 18 November 2004, respondent-mother entered into an out-of-home family service agreement in which she agreed to: (1) locate appropriate, safe housing; (2) have a stable source of income adequate to meet all needs; (3) provide proof the utility and rent bills are being met each month; (4) have no contact with Jernigan; (5) allow no contact between Jernigan and C.M.S. and have no conversations with C.M.S. about Jernigan; (6) complete a series of parenting classes; (7) participate in anger management treatment and follow through with any recommended medication and therapy programs; (8) maintain regular contact with McCroskey; and (9) have regular supervised weekly visitation with C.M.S. An additional out-of-home family services agreement was entered into by respondent-mother on 11 February 2006 that again barred contact between her and Jernigan and required her to complete a psychological evaluation.

At the permanency planning hearing held on 3 March 2005, the trial court found that respondent-mother had made some progress toward achieving the permanent plan of reunification. On 14 July 2005, however, C.M.S. was adjudicated an abused juvenile because respondent-mother failed to supervise and stop the sexual abuse by Jernigan.

On 15 December 2005, the trial court entered an order changing C.M.S.'s permanent plan from reunification with respondent-mother to adoption and ordered DSS to file a petition terminating respondent-mother's parental rights. Respondent-mother's parental rights were terminated on 27 October 2006 after a five day hearing. The findings made by the trial court relative to the disposition of this appeal are discussed below.

Respondent-mother presents, in essence, two issues for this Court's review: (1) whether Title II of the Americans with Disabilities Act ("ADA" or "Act") precludes the state from terminating appellant's parental rights, and (2) whether the trial court's findings of fact were supported by competent evidence.

This Court's review of a trial court's order terminating parental rights involves two inquiries: Whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence, and whether those findings support its conclusions of law. In re Allred, 122 N.C.App. 561, 565, 471 S.E.2d 84, 86 (1996). A finding by the trial court of any one of the grounds enumerated in N.C. Gen. Stat. § 7B-1111 is sufficient to support an order of termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233-34 (1990).

I.

Respondent-mother first argues the ADA precludes the State from terminating her parental rights because she is mentally retarded. This is an issue of first impression for this Court, and after careful review we hold that the ADA does not prevent the termination of parental rights in the instant case. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the *595 services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 USCS § 12132 (2003).

In this case, respondent-mother argues that the ADA requires the state to make reasonable accommodations and provide services to assist a person with mental retardation to exercise their constitutionally protected parental rights. A similar argument was advanced in In re Terry, 240 Mich. App. 14, 610 N.W.2d 563, 569 (2000). While the In re Terry court first concluded that "mental retardation is a `disability' within the meaning of the ADA," it then agreed with the "[s]everal courts [that] have concluded that termination proceedings are not `services, programs or activities' under the ADA, and the ADA does not apply in termination proceedings as a defense to the termination of parental rights." Id. (citing 28 C.F.R. 35.104; In re Antony B., 54 Conn.App. 463, 735 A.2d 893, 899 (1999); State in Interest of B.K.F., 704 So.2d 314, 317-18 (La.Ct.App. 1997); In re B.S., 166 Vt. 345, 693 A.2d 716, 720 (1997); Stone v. Daviess Co. Div. Children & Family Services, 656 N.E.2d 824, 829-30 (Ind.Ct.App.1995); In Interest of Torrance P., 187 Wis.2d 10, 522 N.W.2d 243, 245 (1994)); see also People in Interest of T.B., 12 P.3d 1221, 1223 (Colo.Ct.App.2000). Accordingly, the In re Terry court held that "a parent may not raise violations of the ADA as a defense to termination of parental rights proceedings." In re Terry, 610 N.W.2d at 570.

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Related

Taylor v. Taylor
387 S.E.2d 230 (Court of Appeals of North Carolina, 1990)
In Re Dula
544 S.E.2d 591 (Court of Appeals of North Carolina, 2001)
Matter of Allred
471 S.E.2d 84 (Court of Appeals of North Carolina, 1996)
Matter of Oghenekevebe
473 S.E.2d 393 (Court of Appeals of North Carolina, 1996)
In Re Terry
610 N.W.2d 563 (Michigan Court of Appeals, 2000)
State, in Interest of Bkf
704 So. 2d 314 (Louisiana Court of Appeal, 1997)
State v. Raymond C.
522 N.W.2d 243 (Court of Appeals of Wisconsin, 1994)
Catherine P. v. Ngoc P.
101 Cal. Rptr. 2d 423 (California Court of Appeal, 2000)
People ex rel. T.B.
12 P.3d 1221 (Colorado Court of Appeals, 2000)
Stone v. Daviess County Division of Children & Family Services
656 N.E.2d 824 (Indiana Court of Appeals, 1995)
In re O.C.
615 S.E.2d 391 (Court of Appeals of North Carolina, 2005)
In re O.C.
623 S.E.2d 587 (Supreme Court of North Carolina, 2005)
In re C.M.S.
646 S.E.2d 592 (Court of Appeals of North Carolina, 2007)
In re Antony B.
735 A.2d 893 (Connecticut Appellate Court, 1999)
In re Terry
610 N.W.2d 563 (Michigan Court of Appeals, 2000)
In re B.S.
693 A.2d 716 (Supreme Court of Vermont, 1997)
In re B.S.D.S.
594 S.E.2d 89 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
646 S.E.2d 592, 184 N.C. App. 488, 2007 N.C. App. LEXIS 1433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cms-ncctapp-2007.