Young, In re

• Decision Date: 06 August 1992
• Parties: In re Eric YOUNG, minor child Born
• Court: North Carolina Supreme Court

Page 612

485 S.E.2d 612

346 N.C. 244

In re Eric YOUNG, minor child Born August 6, 1992.

No. 174A96.

Supreme Court of North Carolina.

June 6, 1997.

David G. Crockett Law Offices by Jerry D. Rhoades, Jr., Southern Pines, guardian ad litem.

Lapping & Lapping by Stephan Lapping, Carthage, for petitioner-appellee James Daniel Young.

Brown & Robbins, L.L.P. by Carol M. White, Pinehurst, for respondent-appellant Dawn Hayward.

FRYE, Justice.

This case involves proceedings terminating parental rights based on neglect and abandonment. We conclude that the evidence presented at trial was insufficient to support the grounds for termination of the mother's parental rights. Accordingly, we must reverse the Court of Appeals and remand for further proceedings.

The evidence presented at trial tended to show the following facts and circumstances. Petitioner, James Daniel Young, and respondent, Dawn Christian Hayward, are the parents of Eric James Miguel Young (Eric). Eric was born on 6 August 1992. Respondent had previously given birth to a child that she gave up for adoption. Petitioner and respondent never married but lived together for approximately two months following Eric's birth. After petitioner moved out, Eric stayed with respondent in her apartment in Aberdeen, North Carolina, and later in a house in Pinebluff, North Carolina.

On 17 August 1993, respondent gave physical custody of Eric to Kay Harris, petitioner's sister. On 22 September 1993, petitioner went to Harris' home and took custody of Eric. Jamie Bransford (Bransford), petitioner, and various family members of petitioner cared for Eric until February 1994 when petitioner gave physical custody of Eric to Alvina Street (Street).

In October 1993, respondent was diagnosed with breast cancer requiring surgery, radiation treatment, and chemotherapy.

In May 1994, Street told respondent that Eric was living with her, and respondent began to visit Eric. On 13 May 1994, upon a motion filed by Street, an ex parte temporary custody order was filed granting custody of Eric to Street and her husband. An order was filed continuing the temporary custody order and granting visitation to respondent on 2 June 1994.

On 6 May 1994, petitioner filed a petition for termination of respondent's parental rights on the basis that respondent neglected and abandoned Eric. After a trial in District Court, Moore County, Judge Michael E. Beale entered an adjudication order on 10 April 1995 nunc pro tunc 1 November 1994, finding grounds to terminate respondent's parental rights pursuant to N.C.G.S. § 7A-289.32(2) and (8) for neglect and abandonment. Judge Beale entered a disposition order on 10 April 1995 nunc pro tunc 3 November 1994, finding that it was in the best interest of the child to terminate respondent's parental rights. In addition, the trial court concluded that petitioner's parental rights should be terminated and that a termination proceeding would be instituted if petitioner did not voluntarily release his rights by 5:00 p.m. on 4 November 1994. Petitioner filed a stipulation for termination of his parental rights on 4 November 1994.

Respondent appealed to the Court of Appeals. The Court of Appeals, in a divided panel, affirmed the trial court's termination of respondent's parental rights. Respondent appealed to this Court based on Judge Wynn's dissent, and this Court allowed her petition for discretionary review as to additional issues.

Respondent makes three arguments on appeal. After careful review and consideration of the record, transcript, briefs, and oral arguments of counsel, we reverse the decision of the Court of Appeals.

The termination of parental rights statute provides for a two-stage termination proceeding: N.C.G.S. § 7A-289.30 governs the adjudication stage, and N.C.G.S. § 7A-289.31 governs the disposition stage. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the adjudication stage, the party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist. N.C.G.S. § 7A-289.30(d), (e) (1995). The grounds for terminating parental rights are listed in N.C.G.S. § 7A-289.32. Upon determining that one or more of the grounds for terminating parental rights exist, the court moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights. N.C.G.S. § 7A-289.31 (1995).

In her first argument, respondent contends that the finding of neglect or the probability of its repetition at the time of the termination proceeding was not based on clear, cogent, and convincing evidence. We agree.

N.C.G.S. § 7A-289.32 lists neglect as one of the grounds for terminating parental rights, and provides in pertinent part:

The court may terminate the parental rights upon a finding of one or more of the following:

....

(2) The parent has abused or neglected the child. The child shall be deemed to be ... neglected if the court finds the child to be ... a neglected child within the meaning of G.S. 7A-517(21).

N.C.G.S. § 7A-289.32(2) (1995). N.C.G.S. § 7A-517(21) defines neglect in pertinent part as follows:

Neglected juvenile.--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.G.S. § 7A-517(21) (1995).

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 Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984).

During a proceeding to terminate parental rights, the trial court must admit and consider evidence, find facts, make conclusions and resolve the ultimate issue of whether neglect authorizing termination of parental rights under N.C.G.S. 7A-289.32(2) and 7A-517(21) is present at that time. N.C.G.S. 7A-289.30(d). The petitioner seeking termination bears the burden of showing by clear, cogent and convincing evidence that such neglect exists at the time of the termination proceeding. N.C.G.S. 7A-289.30(e).

In re Ballard, 311 N.C. at 716, 319 S.E.2d at 232. (citations omitted) (emphasis added). Termination of parental rights for neglect may not be based solely on past conditions which no longer exist. Id. at 714, 319 S.E.2d at 231-32.

In the instant case, Jamie Bransford, a friend of respondent's, testified that on one occasion Eric was lying on the floor and a roach was crawling on his face. Bransford also observed respondent giving Eric a "milk bottle with contents looking similar to cottage cheese." These incidents occurred when Eric was between two and six months old. Alvina Street, who had custody of Eric at the time of the termination proceeding, testified that she kept Eric for respondent on various occasions when Eric was between two and ten months old. She testified that she had seen cat litter and cat feces scattered on the floor near the litter box and roaches in the lining of Eric's car seat. Sue Stubbs, an acquaintance of respondent's, testified that she visited respondent's home a few weeks before the termination proceedings and found cat urine and cat feces on the kitchen floor.

Kelvin Clark is a family therapist and was employed by the court to conduct a home study prior to the termination proceedings. He testified that respondent's home was neat and clean and that respondent had arranged a bedroom and had purchased carpet on which Eric could play. Clark also testified as follows: "I don't know a cat owner who hasn't had cat feces on their floor; I do think it's a sign of negligence, but again, I don't think--I think if we focus on these sorts of things, all of us could be caught with a problem." More significantly, Clark testified that respondent's breast cancer had changed her attitude with respect to her willingness to become a better parent. He testified as follows I can't predict the future, but I do know that when people face death and trauma they change. I work with a lot of people who are recovering alcoholics, for example, I have worked with [sic]. And sometimes you see a man who has been drinking all his life and then, say, has a bad accident or a doctor says, "You're going to die if you don't stop drinking," and then he stops. And I think there are--pain is life's best teacher, and I think that's happened in Dawn's life.

In addition, the record shows that respondent missed only two of the twenty-four scheduled one-hour visits with her son since Alvina Street received legal custody of him.

We conclude that the evidence in this case is equivocal and, taken as a whole, is not clear, cogent, and convincing evidence of neglect at the time of the termination proceeding. We note that the trial court found as fact, inter alia, as follows:

55. The Court finds overwhelming evidence that in and around August, 1993 the minor child, Eric Young was neglected in that he [was] not receiving proper care in the custody of the Respondent mother and was living in an environment injurious to his welfare.

(Emphasis added.) While the evidence shows that the cleanliness of respondent's household was questionable prior to the removal of her child in August 1993, this was nine months prior to the filing of the petition to terminate respondent's parental rights and over a year before the termination proceeding. Additionally, at the time of the termination proceeding, the child had been in the custody of others for over a year.

We also conclude that the probability of repetition of neglect in this case is not shown by clear, cogent, and convincing evidence. Where evidence of prior neglect is presented, "[t]he trial court must also consider any evidence...