711 S.E.2d 207
No. COA10-1300North Carolina Court of Appeals
Filed 15 March 2011 This case not for publication
Mecklenburg County Nos. 06 JT 1258-59.
Appeal by respondent-mother from order entered 19 July 2010 by Judge Rickye McKoy-Mitchell in Mecklenburg County District Court. Heard in the Court of Appeals 28 February 2011.
No brief for petitioner-appellee.
Sydney Batch for respondent-mother.
Pamela Newell for Guardian ad Litem.
ERVIN, Judge.
Respondent-Mother Latasha C. appeals from an order terminating her parental rights in her children, Todd and Lily.[1] On appeal, Respondent-Mother argues that the trial court erred by determining that her parental rights in Todd and Lily were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and for failing to make reasonable progress to address the conditions that led to Todd and Lily’s removal from her home pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). After careful review of Respondent-Mother’s challenges to the trial court’s termination
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order in light of the record and the applicable law, we conclude that the trial court’s order should be affirmed.
I. Factual Background
On 3 November 2006, Mecklenburg County Youth and Family Services (“YFS”) filed a petition alleging that Todd and Lily, as well as a third juvenile, Alice, [2] were neglected and dependent juveniles. YFS alleged that it had received a referral on 21 November 2005 asserting that Todd had tested positive for cocaine and marijuana at the time of his birth. YFS later substantiated the referral for neglect. Approximately two months later, on 14 February 2006, Respondent-Mother and Todd and Lily’s father became involved in a domestic altercation which led to Respondent-Mother’s arrest and subsequent assault conviction. On 15 February 2006, Respondent-Mother agreed to a case plan that was intended to address her substance abuse and anger management issues. However, Respondent-Mother failed to complete the intensive outpatient drug treatment recommended in her case plan and tested positive for marijuana on five different occasions in 2006. In addition, Respondent-Mother engaged in additional incidents of domestic violence with Todd and Lily’s father in October 2006. As a result, YFS filed a juvenile petition alleging that Todd and Lily were neglected and dependent juveniles, obtained non-secure custody of Todd and Lily, and placed them in foster care.
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The parties engaged in mediation on 6 December 2006, a process which led to an agreement pursuant to which Respondent-Mother stipulated to many of the allegations set out in the YFS petition. In addition, Respondent-Mother agreed to a case plan that was intended to address the conditions that led to Todd and Lily’s removal from the home. Among other things, the case plan provided that Respondent-Mother would (1) complete an assessment with the F.I.R.S.T. (Families in Recovery to Stay Together) program; (2) resolve all substance or alcohol abuse issues, maintain sobriety, comply with all treatment recommendations, and submit to random drug tests; (3) participate in anger management counseling and refrain from exposing Todd and Lily to any inappropriate or violent behavior; (4) obtain a mental health assessment and comply with all treatment recommendations; (5) complete parenting classes and demonstrate the ability to employ the skills during that training; (6) obtain a parenting capacity evaluation; (7) maintain stable employment that sufficed to meet the family’s basic needs; (8) maintain safe and appropriate housing for herself and the children; (9) maintain weekly contact with her social worker; (10) cooperate with the Guardian ad Litem; (11) attend visitation with the children and participate in recommended after school programs; and (12) attend the children’s medical and therapy appointments.
On 21 December 2006, the court adjudicated Todd, Lily, and Alice to be neglected and dependent juveniles based on the stipulations entered into during the mediation process. Among other things, the court found that substance abuse was an issue
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that led to Todd and Lily’s removal from the family home. Accordingly, the court specifically ordered Respondent-Mother and the children’s father to participate in a screening and assessment by the Mecklenburg County F.I.R.S.T. program and to comply with the program’s recommendations.
On 2 March 2007, the court entered an order in connection with a review hearing. At that time, the court noted that Respondent-Mother and the children’s father had tested positive for illegal substances and stated that Respondent-Mother had “reengaged [in] substance abuse treatment.” On 18 April 2007, Respondent-Mother was found in contempt of court after admitting to having used marijuana on 2 January 2007 and testing positive for marijuana on 20 February 2007 and 10 April 2007.
On 14 September 2007, Respondent-Mother was successfully discharged from her substance abuse treatment program. Shortly thereafter, however, YFS received a letter from the director of the McLeod Addictive Disease Center stating that Respondent-Mother had attempted to falsify her urine samples on 22 and 23 October 2007.
At a review hearing held on 5 November 2007, the court found that Respondent-Mother had completed anger management counseling, but had been “arrested and incarcerated twice during this review period.” In addition, the court found that Respondent-Mother had tested positive for marijuana on 1 November 2007 and had failed to attend NA/AA meetings “at the rate previously ordered by the Court.” On 6 February 2008, Respondent-Mother was found in
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contempt of court because she tested positive for marijuana on 5 November 2007 and failed to enroll in substance abuse treatment.
A permanency planning review hearing was held on 22 May 2008. At that time, the court found that Respondent-Mother had completed the F.I.R.S.T. program and a parenting capacity evaluation and that she had maintained employment. However, the court also noted that Respondent-Mother had been arrested twice on assault charges and had tested positive for marijuana on eight different occasions during the review period.
On 17 September 2008, the court found that Respondent-Mother had maintained housing and employment while testing positive for marijuana on 5 June 2008. At a review hearing held on 20 November 2008, the court found that Respondent-Mother had passed random drug screens during the review period. At this hearing, as the result of Respondent-Mother’s apparent success at remaining sober and complying with her case plan, YFS was authorized to transition Todd and Lily back into Respondent-Mother’s home on a trial basis and eventually did so.
After the beginning of the trial placement, YFS had decided to recommend that all supervision of Respondent-Mother’s care for Todd and Lily be terminated. At a review hearing held on 25 February 2009, however, the court noted that YFS had received a report of an episode of alleged domestic violence between Respondent-Mother and her “live-in boyfriend.” Based upon that information, the court ordered that Todd and Lily remain in Respondent-Mother’s home while the report was investigated. At a review hearing held on 30 April 2009,
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the court found that Respondent-Mother continued to comply with her case plan, except that she tested positive for marijuana on 1 April 2009.
On 17 June 2009, the court held another permanency planning review hearing. Prior to that hearing, Todd and Lily had been removed from Respondent-Mother’s home and returned to YFS custody. The court found that Respondent-Mother had tested positive for marijuana on 12 May 2009 and failed to appear for drug screens on 3 and 10 June 2009. Moreover, Respondent-Mother had declined a referral to Drug Court, was unemployed, had been evicted from her home, and had been sanctioned for failing to participate in the Goodwill Industries program. The court further found that Respondent-Mother was accepted into an inpatient substance abuse treatment program. Although Todd would be allowed to reside with her in the treatment facility, Lily had requested that she be returned to foster care. In light of these developments, the court changed the permanent plan for Todd and Lily to a concurrent plan of termination of Respondent-Mother’s parental rights and adoption or reunification with Respondent-Mother.
At the next permanency planning hearing, which was held on 2 December 2009, the court found that Respondent-Mother, who was pregnant at that time, had tested positive for marijuana on three occasions while in a substance abuse treatment program. Accordingly, the court ended all contact between Respondent-Mother and the children and removed any reference to reunification from the permanent plan.
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On 3 September 2009, YFS filed petitions to terminate Respondent-Mother’s parental rights in Todd and Lily. In its petition, YFS alleged that grounds existed to terminate Respondent-Mother’s parental rights in Todd and Lily for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). In support of this allegation, YFS recited Respondent-Mother’s history of substance abuse and asserted that Respondent-Mother had failed to maintain sobriety. More particularly, YFS asserted that Respondent-Mother had “tested positive for controlled substances on numerous occasions after the juvenile[s] [were] placed in [YFS’s] custody.” Secondly, YFS alleged that Respondent-Mother’s parental rights in Todd and Lily were subject to termination for willfully leaving the children in foster care for more than twelve months without making reasonable progress toward eliminating the conditions that led to their removal from the home pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Finally, YFS alleged that Respondent-Mother’s parental rights in Todd and Lily were subject to termination based upon her willful failure to pay a reasonable portion of the cost of Todd and Lily’s care pursuant to N.C. Gen. Stat. § 7B-1111(a)(3).
After hearings held for the purpose of addressing the issues raised by the YFS petition on 16 March 2010 and 20 May 2010, the trial court entered an order on 19 July 2010 in which it concluded that Respondent-Mother’s parental rights in Todd and Lily were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and for failing to make reasonable progress pursuant to N.C. Gen. Stat. §7B-1111(a)(2) and that the termination of
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Respondent-Mother’s parental rights would be in Todd and Lily’s best interest. As a result, the trial court terminated Respondent-Mother’s parental rights in Todd and Lily. Respondent-Mother noted an appeal to this Court from the trial court’s order.[3]
II. Legal Analysis
On appeal, Respondent-Mother contends that the trial court erred by concluding that her parental rights in Todd and Lily were subject to termination. We disagree.
N.C. Gen. Stat. § 7B-1111 enumerates the statutory bases upon which a parent’s parental rights are subject to termination. A finding that any one of the grounds for termination set out in N.C. Gen. Stat. § 7B-1111(a) exists is sufficient to support a decision to terminate a parent’s parental rights in a juvenile. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990) (citing In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984)). “The standard of appellate review is whether the trial court’s findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000),
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disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)).
In its termination order, the trial court concluded that Respondent-Mother’s parental rights in Todd and Lily were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). A “[n]eglected juvenile” is statutorily defined as:
[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile’s 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 the juvenile’s welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15). As a general proposition, “[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) (citing In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984)). “[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.” Ballard, 311 N.C. at 713-14, 319 S.E.2d at 231. In such cases, “[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 (citation omitted). 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
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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, 815, 526 S.E.2d 499, 501 (2000) (citing Ballard, 311 N.C. at 716, 319 S.E.2d at 232).[4]
The trial court found as fact in its termination order that Todd and Lily had been previously adjudicated to be neglected juveniles. In addition, the trial court found that substance abuse was a major contributor to the previous adjudication of neglect. For that reason, Respondent-Mother’s case plan required her to “[s]uccessfully resolve any substance or alcohol abuse issues and maintain sobriety on an ongoing basis.” According to the trial court’s findings of fact, however, Respondent-Mother failed to abstain from substance abuse. Instead, the trial court’s findings of fact reflect that Respondent-Mother engaged in repeated episodes of substance abuse, recovery, and relapse. For example, the trial court found that, in March 2010, Respondent-Mother “started
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substance abuse treatment for the fifth time since the initiation of this case.” In addition, the trial court found that Respondent-Mother continued to use marijuana “about two to three times per week” and had used marijuana as recently as 11 May 2010, which was only a few days prior to the second hearing on the YFS termination petition. Finally, the trial court summarized its factual determinations by concluding that:
The juveniles have been in the Petitioner’s legal custody for 42 months. The respondent-mother has a lengthy history of substance abuse. She has not maintained sobriety and has continued to use marijuana before, during, and/or after various treatment programs. She has not sufficiently addressed her substance abuse issues. [Todd] tested positive for cocaine and marijuana at the time of his birth and the respondent-mother chose to use marijuana throughout her recent pregnancy[.]
Based on its factual findings, the trial court determined that a repetition of the neglect from which Todd and Lily had previously suffered was “probable” in the event that Todd and Lily were returned to Respondent-Mother’s home.
On appeal, Respondent-Mother has not challenged any of the trial court’s findings of fact as lacking sufficient evidentiary support. For that reason, the trial court’s factual findings are deemed to have sufficient evidentiary support and are binding on us for purposes of appellate review. See N.C.R. App. P. 28(b)(6) (stating that “[i]ssues not presented in a party’s brief, or in support of which no reason or argument is stated, will be taken as abandoned.”); see also In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005) (concluding that the respondent had
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abandoned her appeal of those findings of fact to which she assigned error, but “failed to specifically argue in her brief . . . were unsupported by evidence”). The undisputed record evidence establishes that Todd and Lily had previously been adjudicated to be neglected juveniles. A careful review of the trial court’s unchallenged findings of fact also demonstrates that they amply support the trial court’s determination that the neglect which Todd and Lily had earlier endured was likely to recur in the event that they were returned home. Although Respondent-Mother clearly made intermittent efforts to address the substance abuse and other problems that led to the removal of the children, her inability to maintain sobriety and to properly care for Todd and Lily during a trial home placement and her continued substance abuse after the children’s return to foster care fully justifies the trial court’s determination that a repetition of neglect was likely to occur. Despite Respondent-Mother’s vigorous argument that, by the time of the termination hearing, she “had obtained housing, employment, completed the objectives on her case plan,” “was actively engaged in substance abuse treatment,” had “significantly decreased her use of marijuana over time and had completely stopped by the conclusion of the [termination] hearing,” the extent to which this evidence should be credited in comparison to the evidence tending to show that Respondent-Mother had repeatedly failed to adequately address her substance abuse difficulties and had been unable, despite several months of sobriety, to successfully care for Todd and Lily during the trial placement was a decision concerning the weight and
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credibility of the evidence that we are not entitled to disturb on appeal under the applicable standard of review. We further conclude that, when coupled with the prior adjudication of neglect, the trial court’s determination that a repetition of neglect was likely to occur in the event that Todd and Lily were returned to Respondent-Mother’s home adequately supports the trial court’s conclusion that Respondent-Mother’s parental rights in Todd and Lily were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
III. Conclusion
As a result, the trial court did not err by concluding that Respondent-Mother’s parental rights were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). Although Respondent-Mother also argues that the trial court erred by concluding that her parental rights in Todd and Lily were subject to termination for failing to make reasonable progress pursuant to N.C. Gen. Stat. §7B-1111(a)(2), we need not address Respondent-Mother’s challenge to this portion of the trial court’s termination order given our decision to uphold the trial court’s determination that Respondent-Mother’s parental rights were subject to termination for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). See Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34. Thus, since the trial court properly found the existence of at least one ground for terminating Respondent-Mother’s parental rights in Todd and Lily and since Respondent-Mother has not challenged the trial court’s dispositional decision, we hold that
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the trial court’s termination order should be, and hereby is, affirmed.
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AFFIRMED.
Judges STROUD and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).
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