In re M.A.W.

IN THE SUPREME COURT OF NORTH CAROLINA

No. 279PA16

Filed 29 September 2017

IN THE MATTER OF: M.A.W.

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 787 S.E.2d 461 (2016), reversing an order

entered on 12 August 2015 by Judge J.H. Corpening, II in District Court, New

Hanover County. Heard in the Supreme Court on 28 August 2017.

Regina Floyd-Davis for New Hanover County Department of Social Services,
petitioner-appellant.

Parker Poe Adams & Bernstein LLP, by William L. Esser IV, for appellant
Guardian ad Litem.

Rebekah W. Davis for respondent-appellee father.

JACKSON, Justice.

In this appeal we consider whether the trial court erred by terminating

respondent’s parental rights on the basis of neglect. Because we conclude that the

findings in the trial court’s order were sufficient to support termination of

respondent’s parental rights based upon neglect, we reverse the Court of Appeals’

determination that the trial court had erred.
 IN RE M.A.W.

Opinion of the Court

On 11 March 2013, the New Hanover County Department of Social Services

(DSS) filed a petition alleging that the minor child M.A.W.1 was a neglected juvenile.

The petition alleged that M.A.W.’s mother “has a history of substance abuse and

mental health issues.” At the time the petition was filed, respondent father was

incarcerated on charges of habitual impaired driving.

At the adjudication hearing on 12 June 2013, the trial court found that

M.A.W.’s mother had tested positive for use of the controlled substance commonly

known as Percocet without having a valid prescription for the drug. In addition, the

trial court found that the mother’s history of both substance abuse and mental health

issues previously had interfered with her ability to provide appropriate care for her

children. The trial court also noted that DNA testing had confirmed respondent’s

paternity and that respondent had reported participation in various services

available to him during his incarceration, including a parenting class and Alcoholics

Anonymous meetings. In addition, the trial court observed that respondent had

requested a home study on his mother for consideration of placement for M.A.W.

Based upon these and other findings of fact, the trial court concluded as a

matter of law that M.A.W. was “neglected” as defined by N.C.G.S. § 7B-101(15) and

that it was in the best interest of the child to remain in the legal custody of DSS,

which had the discretion to provide or arrange for foster care or another placement.

1 The Court is using initials to protect the identity of the child.

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Opinion of the Court

The mother was ordered to comply with her Family Services Agreement, which

included participating in treatment for substance abuse and mental health issues;

submitting to random drug and alcohol screens; and finding and maintaining suitable

housing and employment. Respondent was ordered to enter into a Family Services

Agreement and to access services available to him during his incarceration—

specifically parenting courses and substance abuse treatment programs. The trial

court’s order also established a visitation schedule for the mother and for respondent

upon his release from incarceration.

After numerous permanency planning review hearings, on 10 April 2014,

M.A.W.’s mother voluntarily relinquished her parental rights and executed consent

for M.AW.’s adoption by M.A.W.’s maternal relatives. The trial court’s 5 May 2014

permanency planning order relieved DSS of reunification efforts with the mother.

The order also reported that respondent was still incarcerated, that he “has a

drinking problem,” and that “[h]is continued sobriety is paramount to any plan of

reunification.” The trial court added that prior to his incarceration, respondent

“reports that he provided for the child financially and emotionally,” “was aware of

[the mother]’s substance abuse,” and had “anticipated the Department’s

intervention.” The trial court endorsed reunification with respondent as the

permanent plan for the child and ordered respondent to contact DSS within three

days of his release.

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 IN RE M.A.W.

Opinion of the Court

Respondent was released from incarceration on 29 August 2014. At a

4 September 2014 permanency planning review hearing, DSS stated that

termination of parental rights was not appropriate because respondent needed to be

afforded the opportunity to enter into a case plan. At the next review hearing on

8 January 2015, the trial court found, inter alia, that respondent had denied several

requests from DSS to access the home of his mother, with whom he purported to live,

that the court did not know where respondent was residing, and that respondent’s

initial regular visits with M.A.W. had declined in consistency. Further noting

respondent’s indication of his ability to pay child support arrearages for another child

he had fathered, the trial court determined that respondent intended to disregard

child support payments for M.A.W. Based upon these and other findings of fact, the

trial court permitted DSS to cease reunification efforts with respondent and changed

the permanent plan for M.A.W. to adoption.

On 10 February 2015, DSS filed a petition to terminate respondent’s parental

rights as to M.A.W. on the grounds of “neglect” and “failure to legitimate.” N.C.G.S.

§ 7B-1111(a)(1), (5) (2015). Following a hearing, the trial court concluded that

respondent had neglected M.A.W., and it found “a high probability that there [would]

be a repetition of neglect, and that the neglect [would] continue in the foreseeable

future.” The trial court entered an order on 12 August 2015 terminating respondent’s

parental rights based upon neglect in accord with N.C.G.S. § 7B-1111(a)(1).

Respondent appealed to the Court of Appeals.

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 IN RE M.A.W.

Opinion of the Court

In a unanimous opinion filed on 21 June 2016, the Court of Appeals reversed

the trial court’s termination of respondent father’s parental rights, holding that the

trial court erred in concluding grounds existed pursuant to N.C.G.S. § 7B-1111(a)(1)

to terminate respondent’s parental rights. In re M.A.W., ___ N.C. App. ___, ___, 787

S.E.2d 461, 463 (2016). The Court of Appeals stated that “while there was a prior

adjudication of neglect, the party responsible for the neglect was the juvenile’s

mother, not father.” Id. at ___, 787 S.E.2d at 463. The court further reasoned that

“[w]ithout evidence of any prior neglect, [DSS] failed to show neglect at the time of

the hearing.” Id. at ___, 787 S.E.2d at 463 (citing In re J.G.B., 177 N.C. App. 375,

382, 628 S.E.2d 450, 455 (2006)). The Court of Appeals also determined that “the

evidence, as well as the trial court’s findings, [did] not support a conclusion that there

was ongoing neglect at the time of the termination hearing.” Id. at ___, 787 S.E.2d

at 463. Accordingly, the Court of Appeals reversed the order entered by the trial

court. DSS appealed to this Court.

Before this Court, DSS argues that the Court of Appeals incorrectly opined

that, because respondent was incarcerated at the time of M.A.W.’s removal, he

therefore could not have neglected the child. DSS also contends that the Court of

Appeals failed to consider the trial court’s findings of fact outlining respondent’s

failures to comply with the directives of that court after his release from

incarceration. We agree.

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 IN RE M.A.W.

Opinion of the Court

In any proceeding such as this, we are reminded that “the fundamental

principle underlying North Carolina’s approach to controversies involving child

neglect and custody [is] that the best interest of the child is the polar star.” In re

Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984). Our General Statutes

provide that a juvenile shall be deemed neglected if the court finds the juvenile to be

a “neglected juvenile” within the meaning of N.C.G.S. § 7B-101. N.C.G.S. § 7B-

1111(a)(1). A neglected juvenile is statutorily defined, in pertinent part, as a juvenile

“who does not receive proper care, supervision, or discipline from the juvenile’s

parent, guardian, custodian, or caretaker; . . . or who lives in an environment

injurious to the juvenile’s welfare.” Id. § 7B-101(15) (2015). As in the present case,

“if the child has been separated from the parent for a long period of time, there must

be a showing of past neglect and a likelihood of future neglect by the parent.” In re

D.L.W., 368 N.C. 835, 843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard, 311 N.C.

708, 713-15, 319 S.E.2d 227, 231-32 (1984)). If past neglect is shown, the trial court

also must then consider evidence of changed circumstances. In re Ballard, 311 N.C.

at 715, 319 S.E.2d at 232.

In a recent case affirmed per curiam by this Court, a child was adjudicated

neglected because of the mother’s substance abuse. In re C.L.S., ___ N.C. App. ___,

___, 781 S.E.2d 680, 681, aff’d per curiam, 369 N.C. 58, 791 S.E.2d 457 (2016). The

identity of the father was unknown at the time the adjudication order was entered in

that case. Id. at ___, 781 S.E.2d at 681. Paternity was then established while the

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Opinion of the Court

father was incarcerated, and the trial court ceased reunification efforts with the

father several months later. Id. at ___, 781 S.E.2d at 681-82. The father in In re

C.L.S. initially indicated his willingness to enter into a case plan, but subsequently

failed to comply with the case plan recommendations and failed to obtain and

maintain stable housing and employment. Id. at ___, 781 S.E.2d at 681.

Subsequently, DSS moved to terminate both parents’ parental rights on the grounds

of neglect. Id. at ___, 781 S.E.2d at 681. The trial court terminated both parents’

parental rights and the father appealed. Id. at ___, 781 S.E.2d at 682. The Court of

Appeals majority affirmed the trial court’s decision, but the dissent contended that

the prior adjudication order could not be used as evidence of past neglect as to the

father because the sole party responsible for the neglect was the mother. Id. at ___,

781 S.E.2d at 683-84 (Tyson, J., dissenting). Notwithstanding the father’s

incarceration and lack of established paternity at the time of the neglect adjudication,

this Court affirmed the Court of Appeals’ decision affirming the trial court’s order

terminating the father’s parental rights. In re C.L.S., 369 N.C. 58, 791 S.E.2d 457

(2016).

Similarly, the neglect allegations in the instant case were based on the

mother’s actions, and the prior adjudication of neglect occurred while respondent was

incarcerated. Our precedents are quite clear—and remain in full force—that

“[i]ncarceration, standing alone, is neither a sword nor a shield in a termination of

parental rights decision.” In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005)

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Opinion of the Court

(quoting In re Yocum, 158 N.C. App. 198, 207-08, 580 S.E.2d 399, 405 (Tyson, J.,

dissenting), aff’d per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003)), aff’d per curiam,

360 N.C. 360, 625 S.E.2d 779 (2006). “[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. at 713-14, 319

S.E.2d at 231. During a proceeding to terminate parental rights, “the trial court must

admit and consider all evidence of relevant circumstances or events which existed or

occurred either before or after the prior adjudication of neglect.” Id. at 716, 319 S.E.2d

at 232-33. As the trial court did in In re C.L.S., the trial court here also appropriately

considered the prior adjudication of neglect as relevant evidence during the

termination hearing. Furthermore, in the present case the trial court made an

independent determination that neglect sufficient to justify termination of

respondent’s parental rights existed at the time of the termination hearing and that

a likelihood of repetition of neglect also existed. Cf. id. at 716, 319 S.E.2d at 233

(reversing a trial court’s order terminating the respondent’s parental rights when the

trial court failed to make an independent determination of whether neglect

authorizing termination of the respondent’s parental rights still existed at the time

of the termination hearing).

“[A] prior adjudication of neglect standing alone” likely will be insufficient “to

support a termination of parental rights” in cases in which “the parents have been

deprived of custody for any significant period before the termination proceeding.” In

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Opinion of the Court

re Ballard, 311 N.C. at 714, 319 S.E.2d at 231 (citing In re Barron, 268 Minn. 48, 53,

127 N.W.2d 702, 706 (1964)). We also are mindful that “[i]n determining whether a

child is neglected, the determinative factors are the circumstances and conditions

surrounding the child, not the fault or culpability of the parent.” In re Montgomery,

311 N.C. at 109, 316 S.E.2d at 252.

Here, however, the evidence of prior neglect does not stand alone. In addition

to the prior adjudication of neglect, the trial court found that respondent had a long

history of criminal activity and substance abuse. Moreover, respondent stipulated to

the allegations of neglect that led to M.A.W.’s adjudication as a neglected juvenile

and also testified during the hearing on the petition to terminate parental rights that

he was aware of the substance abuse issues of M.A.W.’s mother, stating that he “knew

it wouldn’t be too long that [DSS] would try to take [M.A.W.] too.”

The other striking similarity to the facts present in In re C.L.S. is that

respondent initially indicated his desire to be involved in M.A.W.’s life but after his

release, failed to follow through consistently with the court’s directives and

recommendations. The trial court considered these actions of respondent in

evaluating whether there was a likelihood of repetition of neglect. Although

respondent completed a parenting course, attended Alcoholics Anonymous meetings,

and completed his General Educational Development (GED) program while

incarcerated, the trial court made numerous relevant findings of fact supporting

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Opinion of the Court

termination that illuminated respondent’s behavior following his release and which

established a likelihood of repetition of neglect.

The trial court previously emphasized the importance of respondent’s sobriety

based on his history of alcohol abuse, and noted in its order that as of the 29 June

2015 hearing, respondent had “not begun to participate in any aspect of the

recommendations from [his] Drug & Alcohol Assessment.” In addition, the trial court

“stressed the importance of regular visitation” so that respondent could “establish a

father/daughter bond” with M.A.W. Upon his release, respondent was afforded, and

initially took advantage of, weekly visitation with the child; however, the trial court

found that the regularity of his visits diminished over time. The trial court made

several other relevant findings of fact supporting termination:

7. . . . The Department has not seen a certificate of
completion of parenting, nor is the Department specifically
aware of the dynamics of said parenting course.

....

10. . . . [Respondent] was neither forthcoming with
the Department nor compliant with the directives of this
Court. The Department attempted to confirm
[respondent’s] permanent address as given to the Social
Worker; however, [she] was denied access to his mother’s
home . . . .
11. . . . At a hearing held on 08 January 2015,
[respondent] indicated employment with [a cleaning and
painting service] averaging $500.00 per week. At this time,
[respondent] maintains that he is self-employed . . . . [The
trial court] finds his testimony be [sic] lacking in
credibility.

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Opinion of the Court

12. . . . [Respondent] was ordered to undergo a
Comprehensive Clinical Assessment. Two appointments
were scheduled; he did not appear for the first appointment
and left thirty (30) minutes into the session on the re-
scheduled appointment. [Respondent] presents as angry
and defensive. . . .

....

16. . . . [Respondent] has not provided any care,
discipline or supervision of [M.A.W.] since his release from
incarceration in August of 2014 . . . .

Based upon these and other findings from the termination hearing, DSS met

its burden of proving sufficient facts to enable the trial court to establish by clear,

cogent, and convincing evidence that grounds existed to justify termination. See, e.g.,

In re Ballard, 311 N.C. at 716, 319 S.E.2d at 232 (citing former N.C.G.S. § 7A-

289.30(e) (relating to termination of parental rights), repealed by Act of Oct. 22, 1998,

ch. 202, sec. 5, 1997 N.C. Sess. Laws (Reg. Sess. 1998) 695, 742 (recodifying the

Juvenile Code)); see N.C.G.S. § 7B-1111(b) (2015).

After review of the testimony during the hearing and the record on appeal, we

cannot agree with the conclusion of the Court of Appeals that “there was no evidence

before the trial court, and no findings of fact, that father had previously neglected

[M.A.W.]” In re M.A.W., ___ N.C. App. at ___, 787 S.E.2d at 463. The trial court

properly found that past neglect was established by DSS and that there was a

likelihood of repetition of neglect. We therefore hold that the trial court did not err

in concluding that grounds existed pursuant to N.C.G.S. § 7B-1111(a)(1) to terminate

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Opinion of the Court

father’s parental rights. Accordingly, we reverse the decision of the Court of Appeals

reversing the trial court’s order terminating the parental rights of respondent and

instruct that court to reinstate the trial court’s order.

REVERSED.

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