In re D.M.W.

619 S.E.2d 910, 173 N.C. App. 679, 2005 N.C. App. LEXIS 2308
CourtCourt of Appeals of North Carolina
DecidedOctober 18, 2005
DocketNo. COA05-70.
StatusPublished
Cited by9 cases

This text of 619 S.E.2d 910 (In re D.M.W.) 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 D.M.W., 619 S.E.2d 910, 173 N.C. App. 679, 2005 N.C. App. LEXIS 2308 (N.C. Ct. App. 2005).

Opinions

TYSON, Judge.

Denise M. ("respondent") appeals from order terminating her parental rights to her minor child, D.M.W. We reverse.

I. Background

D.M.W. was born to respondent in September 1999. On or about 2 June 2003, respondent left D.M.W. with her maternal grandmother while respondent served time in jail. D.M.W.'s maternal grandmother later left D.M.W. with her aunt, respondent's sister. Respondent did not retrieve D.M.W. on her expected release date.

The Mecklenburg County Department of Social Services ("DSS") became involved in July 2003. Respondent's sister contacted DSS because she could no longer care for D.M.W. DSS searched for respondent, but was unable to locate her. DSS filed a juvenile petition on 9 July 2003 alleging D.M.W. was neglected and dependant. The court ordered non-secure custody of D.M.W. with DSS pending the adjudication hearing.

On 11 August 2003, DSS learned that respondent was incarcerated. DSS and respondent subsequently agreed to a case plan to address the following concerns: (1) substance abuse; (2) domestic violence; (3) parenting skills; (4) housing; and (5) employment. The trial court conducted the adjudication and dispositional hearings on 13 August 2003. Respondent was present with her attorney and stipulated to the facts alleged in the petition. The court adjudicated D.M.W. neglected and dependent as to *913respondent. The court adopted the 12 August 2003 case plan prepared by DSS.

Respondent was released from jail on or about 22 August 2003 and first met with a DSS social worker on 25 August 2003. On 23 September 2003, the Families in Recovery Stay Together ("FIRST") program screened respondent for substance abuse, mental health, and domestic violence problems. FIRST recommended respondent undergo substance abuse treatment through the CASCADE program and participate in domestic violence counseling through the Women's Commission. Respondent agreed to undergo substance abuse treatment, but refused to participate in domestic violence counseling.

Respondent initiated treatment at the CASCADE program but failed to complete it. She never began the domestic violence counseling through the Women's Commission. DSS made a referral for respondent to attend parenting classes. Respondent agreed, but never attended the parenting classes through DSS's recommended source. She was incarcerated at the time of the hearing to terminate her parental rights. Respondent has been incarcerated at least six times during the time in which DSS had custody of D.M.W. and never visited with D.M.W. due to her frequent incarcerations.

Since respondent has been incarcerated, she has worked toward completing the requirements of her case plan. She completed: (1) a substance abuse treatment program; (2) three parenting classes; and (3) a domestic violence treatment program. Respondent expected to be released from prison fourteen days following the hearing to terminate her parental rights.

The court conducted a review hearing of its 13 August 2003 order on 15 January 2004 and ordered reunification efforts with respondent to cease and for DSS to pursue termination of respondent's parental rights. DSS filed a petition to terminate respondent's parental rights on 24 February 2004.

As grounds for termination, the petition alleged respondent: (1) had neglected D.M.W.; and (2) willfully left D.M.W. in the custody of DSS for a continuous period of more than six months preceding the filing of the petition without paying a reasonable portion of the cost of care for D.M.W. although physically and financially able to do so. DSS alleged it was in the best interest of D.M.W. that respondent's parental rights be terminated. On 25 August 2004, the trial court entered an order finding facts to terminate respondent's parental rights on both grounds and concluded it was in D.M.W.'s best interest to terminate respondent's parental rights. Respondent appeals.

II. Issues

The issues on appeal are whether the trial court erred by: (1) concluding that grounds existed to terminate respondent's parental rights based on neglect; (2) concluding that grounds existed to terminate respondent's parental rights based on willfully leaving D.M.W. in foster care for more than six continuous months without paying a reasonable portion of D.M.W.'s cost of care; (3) concluding that it was in D.M.W.'s best interest to terminate respondent's parental rights; and (4) abusing its discretion and violating respondent's substantial rights by terminating her parental rights.

III. Standard of Review

A termination of parental rights proceeding involves two separate analytical phases: an adjudication stage and a dispositional stage. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). A different standard of review applies to each phase.

"At the adjudication stage, the party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist." In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). The standard for appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings of fact support its conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001) (citation omitted). "Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a *914reasonable doubt." N.C. State Bar v. Sheffield, 73 N.C.App. 349, 354, 326 S.E.2d 320, 323 (1985).

If the petitioner meets its burden of proving at least one ground for termination of parental rights exists under N.C. Gen.Stat.

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Bluebook (online)
619 S.E.2d 910, 173 N.C. App. 679, 2005 N.C. App. LEXIS 2308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dmw-ncctapp-2005.