Opinion
No. 8326DC565
Filed 18 September 1984
Parent and Child 1 — termination of parental rights — sufficiency of evidence of neglect Evidence was sufficient to support the trial court's conclusion that a child was neglected and it was within the discretion of the court as to whether to terminate parental rights where there was evidence that respondents did not understand the importance of proper food for their child and, as a result, he suffered from malnutrition requiring hospitalization on one occasion; respondents did not make an adequate effort to see that their child received prescribed medication; and respondents allowed the child to live in a filthy home. G.S. 7A-289.32. G.S. 7A-517(21).
APPEAL by respondents from Bennett. Judge. Judgment entered 31 January 1983 in District Court, MECKLENBURG County. Heard in the Court of Appeals 4 April 1984.
Ruff, Bond, Cobb, Wade and McNair, by Robert S. Adden, Jr. and William H. McNair, with Guardian ad litem Ellis M. Bragg joining on the brief; for petitioner appellee Mecklenburg County Department of Social Services.
Jordan, Durham and Wilson, by Samuel A. Wilson, III, for respondent appellant Ronnie Odom Webb, Jr.
Sheely and Blum, by James Gronquist and Shelley Blum, for respondent appellant Mona F. Webb.
Judge BECTON dissenting.
The respondents Ronnie O. Webb, Jr. and Mona F. Webb appeal from a judgment terminating their parental rights to Ronnie Odom Webb, III. The Mecklenburg County Department of Social Services petitioned on 22 September 1982 for the termination of these rights on the ground that the respondents had neglected the child as defined in G.S. 7A-517(21) and that for a continuous period of more than six months next preceding the filing of the petition failed to pay a reasonable portion of the cost of care for the child who had been in foster care since November of 1981.
The evidence at the hearing showed the respondents were married on 18 December 1978 at which time Mona F. Webb was fourteen years of age. A daughter has been born to the marriage who is not subject to this proceeding. Ronnie Odom Webb, III was born to the respondents on 5 July 1980. On 5 March 1981 the child was taken by a social worker for the Mecklenburg County Department of Social Services to Charlotte Memorial Hospital where he was admitted and treated for malnutrition. The caseworker testified that Mona Webb did not seem to understand the gravity of the child's condition. The caseworker testified that Mona Webb referred to "Ronnie as `just a skinny baby,' when in fact, he had an enlarged head, bloated stomach, skinny, bony extremities . . . ." The Department of Social Services obtained a nonsecure custody order on that date. The child stayed in the hospital for eleven days. On 24 March 1981, the child was held to be neglected as defined by G.S. 7A-517(21). He was placed in a foster home and remained there until 31 July 1981 at which time the court ordered, against the recommendation of the Department, that the child be returned to the respondents for a trial placement.
After the child was returned to the home of the respondents, they enrolled in various courses to help them become better parents. Announced and unannounced visits were made by a caseworker. The respondents were furnished with food stamps because of inadequate food within their home. In October 1981 Ronnie was sick and the respondents told the caseworker the prescription for his medication had been lost. Agents of the Department of Social Services purchased the medication and delivered it to the respondents. On 30 October 1981, a caseworker went to the home and found a strong smell of urine. Ronnie was wet, dirty, and coughing. There was inadequate food in the house. On 13 November 1981 the child was voluntarily returned to foster care. The child visited the parents on occasion until the petition was filed in this case. After the child was returned to foster care, the Department requested $40.00 per month for child support from the respondents but it was determined it would be better to keep this money in the home, and the Department withdrew the request. No contribution was made until the petition was filed. The respondents contributed $125.00 for child support between the filing of the petition and the hearing.
The court found facts based on the evidence and concluded that sufficient grounds existed to terminate the parental rights of the respondents under the provisions of G.S. 7A-289.32(2) and (4). It terminated the parental rights and obligations of the respondents. The respondents appealed.
G.S. 7A-289.32 provides that a court may terminate parental rights on seven different grounds. The court in this case concluded that two of the grounds for termination existed. These were under subsections (2) and (4) which provide in part:
"(2) The parent has . . . neglected the child. The child shall be deemed . . . neglected if the court finds the child to be . . . a neglected child within the meaning of G.S. 7A-517(21).
. . . .
(4) The child has been placed in the custody of a county department of social services . . . and the parent, for a continuous period of six months next preceding the filing of the petition, has failed to pay a reasonable portion of the cost of care for the child."
G.S. 7A-517(21) provides in part:
"Neglected Juvenile. — A juvenile who does not receive proper care, supervision, or discipline from his parent . . . or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare . . . ."
There was evidence that the respondents did not understand the importance of proper food for the infant and as a result, he suffered from malnutrition requiring hospitalization on one occasion. There was also evidence the respondents did not make an adequate effort to see the infant received prescribed medication. There was also evidence the respondents allowed the child to live in a filthy home. The court made findings of fact based on this evidence and concluded the child was neglected as defined in G.S. 7A-517(21). We affirm this conclusion of the court. Having concluded the child was neglected, it was within the discretion of the court as to whether to terminate the parental rights. We hold the court did not abuse its discretion by so doing.
If the court properly concluded that parental rights should be terminated on any of the seven grounds enumerated under G.S. 7A-289.32, we cannot disturb its judgment. See In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981). We have affirmed the termination pursuant to subsection (2). We do not pass on the termination pursuant to subsection (4).
The respondent Mona F. Webb contends the court did not adequately consider her efforts to improve herself as a mother after she voluntarily relinquished custody of the child. She also argues that there was evidence that she and her husband had separated and evidence that they were making an effort to reunite which should provide the infant with a good home. Ronnie O. Webb, Jr. argues that the evidence shows his economic condition had improved and this was not taken into account. These were considerations for the district court in exercising its discretion as to termination. When the district court concluded the child was neglected, it was within the court's discretion taking into account the best interests of the child as to whether parental rights should be terminated. See In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).
The respondents argue that the petitioner has not met its burden of proof which requires that proof of all facts be by "clear, cogent, and convincing evidence." We believe the facts on which the court based its conclusion were virtually not in dispute. Once the court had made this conclusion it was within its discretion as to whether the parental rights should be terminated. The exercise of this discretion is not subject to the burden of proof.
Affirmed.
Judge EAGLES concurs.
Judge BECTON dissents.