In re J.A.O.

166 N.C. App. 222
CourtCourt of Appeals of North Carolina
DecidedSeptember 7, 2004
DocketNo. COA03-629
StatusPublished
Cited by25 cases

This text of 166 N.C. App. 222 (In re J.A.O.) 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 J.A.O., 166 N.C. App. 222 (N.C. Ct. App. 2004).

Opinion

TIMMONS-GOODSON, Judge.

Respondent appeals the trial court order terminating her parental rights to her sixteen-year-old son, Jeff.1 For the reasons discussed herein, we reverse.

The facts and procedural history pertinent to the instant appeal are as follows: On 15 May 2002, Buncombe County Department of Social Services (“DSS”) filed a petition to terminate respondent’s parental rights (“the petition”) to her minor son, Jeff. The petition alleged that sufficient grounds existed to terminate respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-llll(a)(l) (2003) and N.C. Gen. Stat. § 7B-llll(a)(7) (2003). On 21 October 2002, the trial court conducted a hearing on the petition. After hearing testimony and receiving evidence from the parties, the trial court determined that sufficient grounds existed to terminate respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-llll(a)(l) (2003) and N.C. Gen. Stat. § 7B-llll(a)(7) (2003). The trial court also determined that it was in Jeff’s best interest to terminate respondent’s parental rights. Accordingly, in an order entered 11 December 2002, the trial court terminated respondent’s parental rights to Jeff. Respondent appeals.

The dispositive issue on appeal is whether the trial court erred in terminating respondent’s parental rights. Because we conclude that [224]*224the trial court abused its discretion in terminating respondent’s parental rights, we reverse the trial court’s order.

In the instant case, the trial court concluded at the adjudicatory stage that sufficient grounds existed to terminate respondent’s parental rights based on neglect and abandonment pursuant to N.C. Gen. Stat. § 7B-llll(a)(l) and (7). At the dispositional stage, respondent argued that it was in Jeff’s best interest not to terminate respondent’s parental rights because (i) respondent had taken sufficient steps to correct the problems that led to the grounds for termination, and (ii) adoption of Jeff was highly unlikely. The trial court nevertheless concluded that it was in Jeff’s best interest to terminate respondent’s parental rights. We disagree.

Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists.” In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). “If the trial court determines that grounds for termination exist, it proceeds to the dis-positional stage, and must consider whether terminating parental rights is in the best interests of the child.” Id. at 98, 564 S.E.2d at 602. “[This Court] review[s] the trial court’s decision to terminate parental rights for abuse of discretion.” Id.

“Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered during the dispositional stage.” Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. “[E]ither party may offer relevant evidence as to the child’s best interests.” In re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86 (2002). “Such evidence may therefore include facts or circumstances demonstrating either: (1) the reasonable progress of the parent, or (2) the parent’s lack of reasonable progress that occurred before or after . . . the filing of the petition for termination of parental rights.” Id. at 76, 565 S.E.2d at 86-87.

In the instant case, respondent’s evidence tended to show that respondent had made reasonable progress to correct the conditions that led to the petition to terminate her parental rights. Although respondent admitted to stopping visits with Jeff in 1999, she explained that she stopped visiting Jeff because he had been transferred to Cumberland Hospital in Virginia, more than six hours away [225]*225from respondent’s residence. Debbie Ensley (“Ensley”), the social worker in. charge of Jeffs case, testified that respondent had frequently visited Jeff prior to 1997. Ensley further testified that respondent was asked by DSS to suspend her visitations with Jeff in 1997 because of an increase in Jeff’s violent behavior. Respondent complied with DSS’s request, and remained “an active part of the treatment team at that point.” Respondent continued visitations with Jeff until 1999, when Jeff was transferred to Park Ridge Hospital and subsequently Cumberland Hospital.

Respondent testified that when Ensley notified her of Jeff’s transfer to Cumberland Hospital, Ensley “told me that he was going — they were going to send him up to Virginia, that I couldn’t see him.” Respondent testified that she was told in 1997 that her visits with Jeff were “making him worse.” Respondent testified that she did not visit Jeff in Virginia because she did not have a vehicle or other transportation to Virginia, and she “didn’t want [Jeff] to have to suffer like he did[.]” Respondent testified that she nevertheless remained in frequent contact with the Mashburns, Jeff’s foster parents. Respondent also testified that she had written Jeff letters after he had been subsequently transferred to a hospital in Florida, but that the letters were never delivered. Respondent further testified that she now owns a vehicle, has had stable employment since 1999, and lives in a rented efficiency apartment. Two witnesses testified to respondent’s love and care for Jeff and her efforts to reunite with her son. Betty,2 respondent’s sister, testified that respondent is a “loving” mother and is currently looking for a larger apartment, “hoping she’ll get [Jeff] back.” Brenda McPherson (“McPherson”), a life-long friend of respondent, testified that respondent is “a very good mother, [a] very loving and caring mother” who “has always showed a lot of concern [for Jeff].” McPherson testified that she has had experience helping sexually abused and hyperactive children as a member of Angel Group, a support group, and would be willing to help respondent and Jeff. Respondent also testified that she has a support system of family and friends as well as a “pediatrician that will help me in any way” with Jeff.

Dee Shelton (“Shelton”), Jeff’s guardian ad litem, also argued that it was in Jeff’s best interest not to terminate respondent’s parental rights. In a 16 October 2002 report to the trial court, Shelton made the following observations and conclusions:

[226]*226The facts of this case may show that [respondent] has had and would continue to have difficulties parenting [Jeff] and it is not likely that [respondent] would be able to adequately provide the constant medical and mental health care that [Jeff] currently needs or will need in the future. [Respondent] is remorseful that she was unable to attend to her child’s needs in the proper manner and that her ex-husband may have disciplined [Jeff] harshly.
[Respondent] and foster mother both informed this GAL that the professionals involved over the years have not been in agreement as to diagnosis or cause of [Jeffs] problems. The current therapist believes that [Jeffs] problems exist due to his mental state and not environment. The Department of Social Services petition fixes the blame for [Jeffs] situation on his mother.

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Bluebook (online)
166 N.C. App. 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jao-ncctapp-2004.