In re S.B.A.

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1029
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1029 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

IN THE MATTER OF:

S.B.A., A Minor Child Greene County T.L.A., A Minor Child Nos. 11 JT 03 11 JT 04

Appeal by respondent-mother and respondent-father from

orders entered 12 and 14 June 2013 by Judge Timothy I. Finan in

Greene County District Court. Heard in the Court of Appeals 14

April 2014.

James W. Spicer, III, for petitioner-appellee Greene County Department of Social Services.

The Opoku-Mensah Law Firm, PLLC by Gertrude Opoku-Mensah for guardian ad litem.

Duncan B. McCormick for respondent-appellant mother.

Sydney Batch for respondent-appellant father.

DAVIS, Judge.

Respondent-mother and Respondent-father (collectively

“Respondents”) appeal from the district court orders terminating -2- their parental rights to their children “Sam” and “Tina.”1 After

careful review, we affirm.

Factual Background

In February 2011, Greene County Department of Social

Services (“DSS”) filed petitions alleging that Sam and Tina

(collectively “the children”) were neglected juveniles. The

trial court held an adjudication hearing on 21 March 2011. The

day of the hearing, Respondent-mother tested positive for

“opiates and cocaine,” and Respondent-father tested positive for

“benzos” (benzodiazepine). By orders entered 15 April 2011, the

trial court adjudicated the children neglected and continued

custody of the children with DSS, with whom the children were

already in custody at the time of the hearing.

In its adjudication orders, the trial court ordered

Respondent-father to complete substance abuse and mental health

assessments and made the following recommendations: (1)

maintain employment; (2) obtain and maintain stable housing for

him and his children; (3) submit to random drug testing; (4)

complete a parenting program and demonstrate the skills learned;

and (5) receive a domestic violence assessment and follow all

1 The pseudonyms “Sam” and “Tina” are used throughout this opinion to protect the identity of the children and for ease of reading. -3- recommendations. The trial court ordered Respondent-mother to:

(1) continue to attend Reformers Unanimous Program meetings at

Emmanuel Free Will Baptist Church; (2) follow recommendations

for treatment of her depression and anxiety; (3) obtain her GED;

(4) obtain and maintain stable housing for her and her children;

(5) submit to random drug testing; (6) complete a parenting

program and demonstrate the skills learned; and (7) receive a

domestic violence assessment and follow all recommendations.

After holding a permanency planning hearing on 4 June 2012,

the trial court ceased reunification efforts with Respondents

and ordered a permanent plan of adoption. On 30 July 2012, DSS

filed petitions to terminate Respondents’ parental rights to the

children, alleging Respondents neglected the children pursuant

to N.C. Gen. Stat. § 7B-1111(a)(1) (2013). The termination of

parental rights hearing was held on 14 March 2013, after which

the trial court found that grounds existed to terminate

Respondents’ parental rights on the basis of neglect. The court

also determined that termination of Respondents’ parental rights

was in the best interests of Sam and Tina and entered orders

terminating Respondents’ rights. Respondent-father and

Respondent-mother separately appeal.

Analysis -4- A proceeding to terminate parental rights is a two-step

process involving an adjudication phase and a disposition phase.

In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908

(2001). During the adjudication phase, the trial court must

determine whether the petitioner has established — by clear,

cogent, and convincing evidence — that at least one of the ten

grounds for termination enumerated in N.C. Gen. Stat. § 7B–1111

exists. Id. If the court determines that the existence of a

statutory ground for termination was established, it then moves

into the disposition phase, where it considers whether the

termination of parental rights is in the best interests of the

juvenile. Id.

On appeal, we review a trial court's order terminating

parental rights to determine whether the trial court's findings

of fact are supported by clear, cogent, and convincing evidence

and whether those findings, in turn, support its conclusions of

law. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6,

disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). “We

then consider, based on the grounds found for termination,

whether the trial court abused its discretion in finding

termination to be in the best interests of the child.” Id. at

222, 591 S.E.2d at 6. -5- I. Grounds for Termination

The trial court terminated Respondents’ parental rights to

Sam and Tina on the basis of neglect pursuant to N.C. Gen. Stat.

§ 7B-1111(a)(1). “A finding of neglect sufficient to terminate

parental rights must be based on evidence showing neglect at the

time of the termination proceeding.” In re Young, 346 N.C. 244,

248, 485 S.E.2d 612, 615 (1997). However, “a prior adjudication

of neglect may be admitted and considered by the trial court in

ruling upon a later petition to terminate parental rights on the

ground of neglect.” In re Ballard, 311 N.C. 708, 713-14, 319

S.E.2d 227, 231 (1984). When a prior adjudication of neglect is

considered by the trial court, “[t]he trial court must also

consider any evidence of changed conditions in light of the

evidence of prior neglect and the probability of a repetition of

neglect.” Id. at 715, 319 S.E.2d at 232. Thus, where

there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.

In re Reyes, 136 N.C. App. 812, 814, 526 S.E.2d 499, 501 (2000).

Here, it is undisputed that the children had previously

been adjudicated neglected juveniles by order entered 15 April -6- 2011. However, Respondents contend the trial court erred in

concluding that this neglect likely would be repeated if the

children were returned to their custody. We consider their

arguments separately.

A. Respondent-mother

The trial court made the following findings of fact to

support its conclusion that the termination of Respondent-

mother’s parental rights was appropriate based on neglect:

40. That the mother of the juvenile[s] acknowledged that she needed in patient treatment for her substance abuse, but would not go into a methadone treatment schedule and did not seek treatment until January of 2013.

41. That the mother has acknowledged that she has problems with prescription drugs.

42. That in February, 2011, the mother lived with [Mr. Tyson] [in] Stantonsburg, NC. She lived there for 3 months, and then moved [to] Snow Hill, NC and lived at that address for 1 to 1 ½ years. The mother then moved to [] E. Wayne Road, Goldsboro, NC and remained at that address for 6 months. She now lives at [] US Hwy 13 N, Goldsboro, NC and has been there for 9 months.

43. That the mother was requested to go to a methadone clinic and refused to do so.

. . . .

46. That the mother no longer attends the [Reformers Unanimous] program at Emmanuel Freewill Baptist Church on Friday evenings -7- from 7:00 p.m. until 9:00 p.m.

59. That the mother had the opportunity to go to a place where she could have both of her children with her, but was not willing to comply with the rules of that place in Greenville.

Of the above findings, Respondent-mother challenges only

finding of fact 46. Findings 40-43 and 59 are uncontested by

Respondent-mother and, accordingly, are binding on appeal.

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

The unchallenged findings in the trial court’s order demonstrate

that Respondent-mother has a history of failing to comply with

her case plan. Furthermore, Respondent-mother did not maintain

a stable home until nine months before the termination hearing

and, more importantly, did not complete in-patient substance

abuse treatment. Even assuming arguendo that finding of fact 46

was not supported by competent evidence, we conclude that the

trial court’s remaining findings of fact support its conclusion

that a probability of repetition of neglect would exist if the

children were returned to Respondent-mother.

B. Respondent-father -8- The trial court made the following unchallenged findings of

fact to support its conclusion that Respondent-father neglected

the children:

61. That [Respondent-father] . . . was using opiates.

65. That the father has had no mental health treatment.

66. That the father does not have a driver[’]s license.

68. That the father did not complete his substance abuse treatment.

70. That the father did not complete his domestic violence course.

Respondent-father does not contest these findings;

therefore, they are binding on appeal. Id. at 97, 408 S.E.2d at

731. Respondent-father argues, however, that he made

significant progress on his case plan and that, for this reason,

the trial court erred in terminating his parental rights.

Although we agree that Respondent-father made some progress on

his case plan (such as obtaining stable housing and employment),

he did not complete his substance abuse treatment. The record

evidence shows that on 17 February 2011, he began substance

abuse treatment with NIA Children and Family Services but -9- discontinued his treatment with the agency. On 7 September

2011, he began a substance abuse treatment program with

Alternative Care Treatment Systems. However, he only attended

10 of the 16 classes and was terminated from the program. As

Respondent-father admits, substance abuse was one of the issues

which led to the removal of the children. We believe the trial

court did not err in finding that a probability of future

neglect would exist if the children were returned to his

custody.

For these reasons, we hold that the trial court did not err

in finding that both Respondents' parental rights were subject

to termination under N.C. Gen. Stat. § 7B–1111(a)(1).

Respondents have not challenged the trial court's determination

that termination of their parental rights was in the children's

best interests. Therefore, having determined that Respondents’

parental rights were subject to termination under N.C. Gen.

Stat. §7B-1111(a)(1), we conclude that the trial court’s order

should be affirmed. See In re S.N., 194 N.C. App. 142, 149, 669

S.E.2d 55, 60 (2008) (affirming order terminating parental

rights after concluding that termination was proper under N.C.

Gen. Stat. §7B-1111(a)(2) where parent failed to challenge trial

court’s determination that termination was in best interests of -10- children), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455

(2009).

Conclusion

For these reasons, we affirm the trial court’s orders

terminating Respondents’ parental rights.

AFFIRMED.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).