In re Young

Court of Appeals of North Carolina

In re Young

468 S.E.2d 266, 122 N.C. App. 163, 1996 N.C. App. LEXIS 215, 1996 WL 155055

CourtCourt of Appeals of North Carolina

DecidedApril 2, 1996

DocketNo. COA95-533

StatusPublished

This text of 468 S.E.2d 266 (In re Young) 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 Young, 468 S.E.2d 266, 122 N.C. App. 163, 1996 N.C. App. LEXIS 215, 1996 WL 155055 (N.C. Ct. App. 1996).

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Opinions

ARNOLD, Chief Judge.

On appeal, respondent contends the trial court erred in terminating her parental rights because the trial court’s findings of fact were not based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. We disagree.

Under G.S. § 7A-289.32(2), parental rights may be terminated if the child is neglected by the parent as defined under N.C. Gen. Stat. § 7A-517(21) which provides:

[A neglected juvenile is] [a] juvenile who does not receive proper care, supervision, or discipline from . . . [his] parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to . . . [his] welfare; or who has been placed for care or adoption in violation of law.

N.C. Gen. Stat. § 7A-517(21) (1995).

[165]*165The trial court must base its findings of fact on “clear, cogent and convincing evidence,” a requirement which establishes an intermediate standard of proof, greater than the preponderance of the evidence standard, but less than the requirement of proof beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984); N.C. Gen. Stat. § 7A-289.30(e) (1995). In a termination case in which the appealing party raises questions about the evidence, our task is to review the evidence to determine whether there is clear, cogent, and convincing evidence to support the findings of fact and to decide whether those findings support the conclusions of law. Id. at 111, 316 S.E.2d at 253.

In the present case, the trial court found that Alvina Street, friend of respondent, observed a roach on the child’s face on one occasion and also saw roaches on the car seat, diaper bag, and dirty clothes. Furthermore, on one occasion, Street observed respondent give the child a “milk bottle with contents looking similar to cottage cheese.” Additionally, Street testified that respondent’s Aberdeen apartment was “extremely cluttered” and that dirty diapers and dirty litter and cat feces were in the apartment. When Street later visited respondent’s Pinebluff home, she observed dirty dishes accumulating and dirty clothes piled up. Finally, the trial court found that a few weeks prior to the hearing, Sue Stubbs, an acquaintance of respondent, visited respondent’s Carthage home unannounced and found the home smelled of cat urine and found cat feces on the kitchen floor, conditions similar to those she observed at respondent’s Pinebluff residence.

Considering this and other evidence, we find the trial court’s findings of fact were based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. The evidence showed that the problems which caused the injurious environment had continued and probably would recur. Accordingly, we conclude the trial court did not err in terminating respondent’s parental rights.

Affirmed.

Judge MARTIN, Mark D., concurs. Judge WYNN dissents with separate opinion.

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ARNOLD, Chief Judge.

On appeal, respondent contends the trial court erred in terminating her parental rights because the trial court’s findings of fact were not based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. We disagree.

Under G.S. § 7A-289.32(2), parental rights may be terminated if the child is neglected by the parent as defined under N.C. Gen. Stat. § 7A-517(21) which provides:

[A neglected juvenile is] [a] juvenile who does not receive proper care, supervision, or discipline from . . . [his] parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to . . . [his] welfare; or who has been placed for care or adoption in violation of law.

N.C. Gen. Stat. § 7A-517(21) (1995).

[165]*165The trial court must base its findings of fact on “clear, cogent and convincing evidence,” a requirement which establishes an intermediate standard of proof, greater than the preponderance of the evidence standard, but less than the requirement of proof beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984); N.C. Gen. Stat. § 7A-289.30(e) (1995). In a termination case in which the appealing party raises questions about the evidence, our task is to review the evidence to determine whether there is clear, cogent, and convincing evidence to support the findings of fact and to decide whether those findings support the conclusions of law. Id. at 111, 316 S.E.2d at 253.

In the present case, the trial court found that Alvina Street, friend of respondent, observed a roach on the child’s face on one occasion and also saw roaches on the car seat, diaper bag, and dirty clothes. Furthermore, on one occasion, Street observed respondent give the child a “milk bottle with contents looking similar to cottage cheese.” Additionally, Street testified that respondent’s Aberdeen apartment was “extremely cluttered” and that dirty diapers and dirty litter and cat feces were in the apartment. When Street later visited respondent’s Pinebluff home, she observed dirty dishes accumulating and dirty clothes piled up. Finally, the trial court found that a few weeks prior to the hearing, Sue Stubbs, an acquaintance of respondent, visited respondent’s Carthage home unannounced and found the home smelled of cat urine and found cat feces on the kitchen floor, conditions similar to those she observed at respondent’s Pinebluff residence.

Considering this and other evidence, we find the trial court’s findings of fact were based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. The evidence showed that the problems which caused the injurious environment had continued and probably would recur. Accordingly, we conclude the trial court did not err in terminating respondent’s parental rights.

Affirmed.

Judge MARTIN, Mark D., concurs. Judge WYNN dissents with separate opinion.

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Bluebook (online)

468 S.E.2d 266, 122 N.C. App. 163, 1996 N.C. App. LEXIS 215, 1996 WL 155055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-young-ncctapp-1996.

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