Allred, Matter of

• Decision Date: 10 October 1988
• Citation: 122 N.C.App. 561,471 S.E.2d 84
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Christian Diane ALLRED DOB:

Page 84

471 S.E.2d 84

122 N.C.App. 561

In the Matter of Christian Diane ALLRED DOB: 10-10-88.

No. COA94-1160.

Court of Appeals of North Carolina.

June 4, 1996.

Theresa A. Boucher, Asheboro, for petitioner-appellee.

J. Jane Adams, Asheboro, for respondent-appellant.

William Mathers, Asheboro, for Guardian ad Litem appellee.

McGEE, Judge.

Respondent first argues the trial court erred by admitting into evidence numerous court orders concerning her four older children. These orders reflect that all four children had been adjudicated to be neglected and give the facts surrounding the adjudications. Respondent never regained custody of these children. Respondent's first husband gained custody of two of the children, one child was legally emancipated, and the fourth child died in a nursing home while in the custody of DSS. Respondent contends this evidence should have been excluded under N.C.R. Evid. 404(b). We disagree.

Our Supreme Court held, in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), that "evidence of neglect by a parent prior to losing custody of a child--including an adjudication of such neglect--is admissible in subsequent proceedings to terminate parental rights." Ballard, 311 N.C. at 715, 319 S.E.2d at 232.

As the answer to [whether parental rights should be terminated] must be based upon the then existing best interests of the child and fitness of the parent(s) to care for it in light of any evidence of neglect and the probability of a repetition of neglect, 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.

Ballard, 311 N.C. at 716, 319 S.E.2d at 232-33 (emphasis added). Although some of the orders were dated as far back as 1979, many of the prior orders admitted in this case described events and circumstances immediately before and after Christian's birth. All of the orders detailed various conditions which were also present in the order adjudicating Christian to be neglected and in the orders of her subsequent review hearings, including filthy living conditions, improper care and supervision, leaving medicines and poisons within the children's reach, failure to properly administer medicines, involvement in unstable relationships with men, etc. Also, one of the older children, like Christian, suffered physical handicaps. Because of the similarities to Christian's situation, we find these prior orders to be evidence of relevant circumstances and events prior to the order of adjudication which bear upon the probability of a repetition of neglect, thereby making the orders admissible.

We recognize that Ballard and the cases which followed it, see, e.g., In re Beck, 109 N.C.App. 539, 428 S.E.2d 232 (1993); In re Parker, 90 N.C.App. 423, 368 S.E.2d 879 (1988), dealt with prior acts of abuse of the same child involved in the termination proceeding. However, for the same reasons stated in Ballard, a respondent will not be prejudiced in a properly conducted hearing by the admission of evidence of the prior abuse of another of respondent's children. See Ballard, 311 N.C. at 715-16, 319 S.E.2d at 232. The trial court must make an independent determination of whether neglect authorizing termination of parental rights exists at the time of the termination hearing and may not treat a prior adjudication of neglect as determinative of the ultimate issue. Ballard, 311 N.C. at 716, 319 S.E.2d at 233.

When admitting evidence of prior neglect, the court must also consider any evidence of changed conditions since the prior neglect. Ballard, 311 N.C. at 715, 319 S.E.2d at 232. Therefore, since parents have a full opportunity to present all evidence favorable to them relating to all relevant periods before or after the prior neglect, the admission of evidence of the prior neglect is not unfairly prejudicial. Ballard, 311 N.C. at 716, 319 S.E.2d at 233. Here, respondent did in fact present evidence of some changes made since the adjudication of neglect, and these changes are noted in the termination order. The trial court properly admitted the evidence of prior neglect. Further, the court did not rely solely upon this evidence as being determinative of the issue. We find no prejudice to the respondent.

Respondent's remaining arguments contend the trial court's conclusions are not supported by the facts and the court erred as a matter of law in terminating her parental rights. The trial court found that: 1) Christian was an abused or neglected child; and 2) that respondent had left Christian in foster care for more than eighteen months (now twelve) without showing reasonable progress under the circumstances to the diligent efforts of DSS to strengthen the parental relationship or to make or follow through with constructive planning for the child's future. Both are grounds for termination of parental rights under N.C. Gen.Stat. § 7A-289.32(2) and N.C. Gen.Stat. § 7A-289.32(3) respectively. While the record supports both findings, since the existence of only one of the statutory grounds is enough to enable the court to terminate parental rights, In re Tyson, 76 N.C.App. 411, 415, 333 S.E.2d 554, 557 (1985), we only address the issue of neglect.

In a termination proceeding, the appellate court should affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982), appeal dismissed, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983). To support its conclusion that Christian is an abused or neglected child, the trial court made, among others, the following findings of fact:

7. The juvenile, Christian Diane Allred, was adjudicated to be an abused and neglected juvenile on January 23, 1989. The Court's findings in the adjudication hearing details [sic] that the infant juvenile was allowed to live in "filthy and intolerable" conditions, the respondent parents failed to provide that degree of care required for the special medical needs for this juvenile resulting in decreased weight gain and the infant juvenile sustained a spiral fracture of her arm which was caused by someone forcefully twisting her arm. The Court found that respondent mother, Mrs. Bonnie Allred was on guard and present at the time the juvenile's arm was broken.

8. Since the adjudication hearing on January 23, 1989, Mrs. Allred has made some changes in her living circumstances. Mrs. Allred moved from the home which she lived at the time of the removal of the juvenile. Mrs. Allred moved into 3 different homes all of which were approved by [DSS] for limited visitation with the juvenile. Mrs. Allred's most recent home was observed to be generally acceptable; however, in 1992 roaches and maggots were observed in Mrs. Allred's home during periods of visitation with the juvenile.

9. Mrs. Allred had weekly 5 hour supervised visits with the child in her home from April 1992, to the date of this hearing. Mrs. Allred has been observed during periods of visitation with the juvenile, Christian Allred. Mrs. Allred displays very little patience with the child, has failed to watch the child closely enough, and exhibited some rough handling of the child during meal time. Mrs. Allred has also been unsteady while handling and carrying Christian Allred, [and] has been seen to drop the child on the couch or bed while attempting to change her diaper. On one occasion, Mrs. Allred failed to remove medication which was left in...