In re N.B., I.B., & A.F.

688 S.E.2d 713, 200 N.C. App. 773, 2009 N.C. App. LEXIS 1726
CourtCourt of Appeals of North Carolina
DecidedNovember 3, 2009
DocketNo. COA09-811
StatusPublished
Cited by6 cases

This text of 688 S.E.2d 713 (In re N.B., I.B., & A.F.) 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 N.B., I.B., & A.F., 688 S.E.2d 713, 200 N.C. App. 773, 2009 N.C. App. LEXIS 1726 (N.C. Ct. App. 2009).

Opinion

BEASLEY, Judge.

Respondent appeals from the order terminating her parental rights to the minor children, N.B., I.B., and A.F.1 We reverse and remand in part and affirm in part.

On 7 May 2007, Orange County Department of Social Services (DSS) filed juvenile petitions alleging that N.B., I.B., and A.F. were neglected juveniles. By order entered 28 September 2007, the children were adjudicated neglected and dependent juveniles. On 15 November 2007, the trial court conducted a permanency planning hearing at which the trial court ceased reunification efforts and changed the permanent plan to adoption.

On 14 January 2008, DSS filed a motion to terminate Respondent’s parental rights. On 27 June 2008, the trial court entered an [775]*775order terminating Respondent’s parental rights. Respondent gave notice of appeal.

While the appeal was pending, the trial court conducted a second termination hearing on 6 November 2008 and again terminated Respondent’s parental rights. On 28 January 2009, Respondent filed a motion to vacate the second termination order because the trial court lacked subject matter jurisdiction. By order entered on 5 February 2009, the trial court vacated the second termination order.

On 20 January 2009, this Court reversed the 27 June 2008 termination order, and remanded for a new hearing because DSS failed to present evidence to support a conclusion that grounds for terminating parental rights existed. In re N.B., — N.C. App. -, 670 S.E.2d 923 (2009). Consequently, the trial court conducted another termination hearing on 19 March 2009. The trial court found grounds existed to terminate Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(6), and entered an order terminating Respondent’s parental rights on 17 April 2009. Respondent appeals.

On appeal, Respondent argues that the trial court erred in finding and concluding that grounds existed to terminate her parental rights under N.C. Gen. Stat. § 7B-1111(a)(6).

Termination of parental rights cases involve two separate components. 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). This Court reviews the adjudicatory stage to determine “whether the trial court’s findings of fact are based on clear, cogent, and convincing evidence and whether those findings support the trial court’s conclusion that grounds for termination exist pursuant to N.C. Gen. Stat. § 7B-1111.” In re G.W. & J.W., 182 N.C. App. 214, 219, 641 S.E.2d 725, 729 (2007) (citation omitted).

If the trial court determines that a ground for termination exists, it then conducts a disposition hearing, to determine whether termination is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a)(2007). The standard for appellate review of the trial court’s decision to terminate parental rights is abuse of discretion. In re Brim, 139 N.C. App. 733, 745, 535 S.E.2d 367, 374 (2000).

A trial court may terminate parental rights upon finding

[776]*776[t]hat the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.

N.C. Gen. Stat. § 7B-1111(a)(6)(2007).

First, Respondent argues that there was no evidence that she had a mental or other incapability. We note that the statute provides that incapability may be the result of substance abuse or mental illness. N.C. Gen. Stat. § 7B-1111(a)(6) (2007). In this case, there was evidence presented that Respondent had a history of substance abuse and mental illness.

Respondent also contends that several of the trial court’s findings of fact are not supported by the evidence. The trial court made the following pertinent findings of fact:

9. Respondent mother has an extensive history of substance abuse.
10. Respondent mother admitted and this Court finds that Respondent mother sold drugs from the age of eighteen (18) to the age of twenty-three (23).
13. Respondent mother was convicted of possession of illegal drugs with intent to manufacture, sell and deliver.
14. Respondent mother was incarcerated on April 29, 2008, and she remains incarcerated to date. Her release date is August 8, 2009.
15. After the juveniles were ordered into OCDSS custody, Respondent mother was ordered to participate in Family Treatment Court, a court which attempts to help parents recover from drug addictions so that they may be reunited with their children. She did not comply with the requirements of Family Treatment Court and was therefore terminated.
16.Five months after the beginning of her current incarceration, Respondent mother began participating in a program offered to [777]*777inmates which is called the “Latch” program. Her children had been in DSS custody for over a year (15 months) before Respondent-Mother began this treatment. By participating in this program, Respondent mother has made efforts to improve herself. Respondent mother claims that upon her release, she will continue her substance abuse treatment.
17. During the course of OCDSS involvement, Respondent mother did not follow a case plan which would have supported a plan of reunification. She failed to make scheduled appointments and it was difficult to stay in touch with her by telephone or otherwise.
18. Respondent mother has a criminal history, which includes charges and convictions related to the use and sale of drugs.
19. Throughout the course of the lives of the juveniles, they have been left in the care of family members without any information regarding Respondent-Mother’s whereabouts or return. The current caretakers of the juveniles have been in their lives since birth.
21. Respondent mother is incapable of parenting her children. Her incapability is likely to continue for the foreseeable future.
22. Her drug use and addiction interferes with her ability to parent her children. Her drug use and addiction has been long term, and her self-reported commitment to treatment has just recently occurred.

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Bluebook (online)
688 S.E.2d 713, 200 N.C. App. 773, 2009 N.C. App. LEXIS 1726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nb-ib-af-ncctapp-2009.