An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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).