{ "id": 11916107, "name": "IN RE: ERIC YOUNG, minor child", "name_abbreviation": "In re Young", "decision_date": "1996-04-02", "docket_number": "No. COA95-533", "first_page": "163", "last_page": "168", "citations": [ { "type": "official", "cite": "122 N.C. App. 163" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "44 ALR4th 649", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "38 ALR4th 756", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "22 ALR4th 774", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "252" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "109-110" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "245 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "389" } ], "opinion_index": 1 }, { "cite": "36 N.C. App. 720", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555489 ], "year": 1978, "pin_cites": [ { "page": "726" } ], "opinion_index": 1, "case_paths": [ "/nc-app/36/0720-01" ] }, { "cite": "319 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "232" }, { "page": "231-32" }, { "page": "232" } ], "opinion_index": 1 }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "716" }, { "page": "716" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "251" } ], "opinion_index": 1 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "108" } ], "opinion_index": 1, "case_paths": [ "/nc/311/0101-01" ] } ], "analysis": { "cardinality": 610, "char_count": 11494, "ocr_confidence": 0.741, "pagerank": { "raw": 2.3181068408277913e-07, "percentile": 0.7892299898565515 }, "sha256": "e89004462781728978b3b5959fcd2b505123fe0905347e787bba58252171ffcc", "simhash": "1:c7ada3ce62419d76", "word_count": 1903 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN, Mark D., concurs.", "Judge WYNN dissents with separate opinion." ], "parties": [ "IN RE: ERIC YOUNG, minor child" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nOn appeal, respondent contends the trial court erred in terminating her parental rights because the trial court\u2019s findings of fact were not based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. We disagree.\nUnder G.S. \u00a7 7A-289.32(2), parental rights may be terminated if the child is neglected by the parent as defined under N.C. Gen. Stat. \u00a7 7A-517(21) which provides:\n[A neglected juvenile is] [a] juvenile who does not receive proper care, supervision, or discipline from . . . [his] 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 . . . [his] welfare; or who has been placed for care or adoption in violation of law.\nN.C. Gen. Stat. \u00a7 7A-517(21) (1995).\nThe trial court must base its findings of fact on \u201cclear, cogent and convincing evidence,\u201d a requirement which establishes an intermediate standard of proof, greater than the preponderance of the evidence standard, but less than the requirement of proof beyond a reasonable doubt. In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984); N.C. Gen. Stat. \u00a7 7A-289.30(e) (1995). In a termination case in which the appealing party raises questions about the evidence, our task is to review the evidence to determine whether there is clear, cogent, and convincing evidence to support the findings of fact and to decide whether those findings support the conclusions of law. Id. at 111, 316 S.E.2d at 253.\nIn the present case, the trial court found that Alvina Street, friend of respondent, observed a roach on the child\u2019s face on one occasion and also saw roaches on the car seat, diaper bag, and dirty clothes. Furthermore, on one occasion, Street observed respondent give the child a \u201cmilk bottle with contents looking similar to cottage cheese.\u201d Additionally, Street testified that respondent\u2019s Aberdeen apartment was \u201cextremely cluttered\u201d and that dirty diapers and dirty litter and cat feces were in the apartment. When Street later visited respondent\u2019s Pinebluff home, she observed dirty dishes accumulating and dirty clothes piled up. Finally, the trial court found that a few weeks prior to the hearing, Sue Stubbs, an acquaintance of respondent, visited respondent\u2019s Carthage home unannounced and found the home smelled of cat urine and found cat feces on the kitchen floor, conditions similar to those she observed at respondent\u2019s Pinebluff residence.\nConsidering this and other evidence, we find the trial court\u2019s findings of fact were based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. The evidence showed that the problems which caused the injurious environment had continued and probably would recur. Accordingly, we conclude the trial court did not err in terminating respondent\u2019s parental rights.\nAffirmed.\nJudge MARTIN, Mark D., concurs.\nJudge WYNN dissents with separate opinion.", "type": "majority", "author": "ARNOLD, Chief Judge." }, { "text": "Judge Wynn\ndissenting,\nIn my opinion the evidence terminating Dawn Christina Hayward\u2019s rights as a biological parent was not based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. Accordingly, I dissent.\nA petitioner who seeks termination of parental rights must show that clear, cogent and convincing evidence of neglect exists at the time of the termination proceeding. In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984). \u201c[Termination of parental rights for neglect may not be based solely on conditions which existed in the distant past but no longer exist.\u201d Id. at 714, 319 S.E.2d at 231-32.\nManifestly, the termination of parental rights is a grave and drastic step. In re Dinsmore, 36 N.C. App. 720, 726, 245 S.E.2d 386, 389 (1978). As such, \u201cwhere there is a reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights.\u201d In re Montgomery, 311 N.C. 101, 108, 316 S.E.2d 246, 251 (1984).\nIn the subject case, the trial court found in pertinent part, that Alvina Street, a friend of Ms. Hayward, observed a roach on the child\u2019s face on one occasion and also saw roaches on the car seat, diaper bag, and dirty clothes. Additionally, Mrs. Street testified that the apartment was \u201cextremely cluttered\u201d and that dirty diapers and dirty litter and feces were in the apartment. Furthermore, on one occasion, Mrs. Street observed Ms. Hayward give the child a \u201cmilk bottle with contents looking similar to cottage cheese.\u201d Mrs. Street also alleged that on many occasions she had to baby-sit the minor child so that Ms. Hayward could go out dancing or on dates. Ultimately, Mrs. Street confronted Ms. Hayward about the dirty conditions of her home and Ms. Hayward responded that she had financial problems.\nBecause the determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding, In re Ballard, 311 N.C. at 716, 319 S.E.2d at 232, the court made the following relevant findings of fact regarding Ms. Hayward\u2019s present ability to care for the minor child:\n56. The Court finds clear, cogent and convincing evidence that such neglect is likely to continue in light of Respondent\u2019s prior history regarding her first minor child, Morgan and evidence presented through witness Sue Stubbs that as recently as four to six weeks prior to this hearing she found Respondent\u2019s home smelling of cat urine and cat feces on the kitchen floor, similar to the residences in Aberdeen and Pinebluff.\n57. The Court also finds clear, cogent and convincing evidence that such neglect will continue by evidence that the Respondent spent $2,000.00 on the purchase of a convertible automobile rather that [sic] spending the money of pursuing custody of the minor child Eric.\n58. The Court also finds clear, cogent and convincing evidence that neglect is likely to reoccur in light of Respondent\u2019s refusal to make changes in her lifestyle after advice from Jamie Bransford and Alvina Street. There is evidence that respondent has exercised weekly visits with her child since May, 1994 and, according to Kelvin Clark, she has cleaned her home.\n59. The Court finds that the Respondent graduated from high school and studied religion and art at Tennessee Temple for four years, but did not graduate. The evidence of neglect and abandonment is especially disturbing in light of this Respondent\u2019s education and obvious intelligence.\nThese findings, in my opinion, were not based on clear, cogent and convincing evidence that neglect or the probability of its repetition existed at the time of the termination proceeding. Indeed, the record shows a considerable change in conditions. Ms. Hayward offered evidence tending to show that she was attempting to improve the conditions which had led to removal of her child and that she was making some progress in doing so. Since May 1994, Ms. Hayward has been allowed twenty-four one hour visits with her son since Alvina Street received legal custody, and she only missed two visits. Additionally, Kelvin Clark, a family therapist, employed by the court to conduct a home study, stated in his report that Ms. Hayward\u2019s house was neat and clean and that Ms. Hayward had \u201cshown a good aesthetic sense in arranging flowers and art work to create a warm ambiance.\u201d Mr. Clark also testified about Ms. Hayward\u2019s willingness to become a better parent. He stated that her change in attitude primarily has been due to the fact that after the removal of the child, Ms. Haywarci discovered that she has breast cancer and has a 60% chance that the cancer will not recur and that she will survive. Mr. Clark testified as follows:\nI can\u2019t 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. And sometimes you see a man who has been drinking all his life and then, say, has a bad accident or a doctor says, \u201cYou\u2019re going to die if you don\u2019t stop drinking,\u201d and then he stops. And I think there are \u2014 pain is life\u2019s best teacher, and I think that\u2019s happened in Dawn\u2019s life.\nOn the other hand, the trial court found as a fact that Sue Stubbs testified that a few weeks prior to the trial, she made an unannounced visit to Ms. Hayward\u2019s home and found cat feces on the kitchen floor and the kitchen smelled like a cat. However, Mr. Clark stated in his testimony that \u201cI don\u2019t know a cat owner who hasn\u2019t had cat feces on their floor; I do think it\u2019s a sign of negligence, but again, I don\u2019t think \u2014 I think if we focus on these sorts of things, all of us could be caught with a problem.\u201d\nI also find it significant to note that the trial court found as a fact that \u201cneglect is likely to continue in light of Respondent\u2019s prior history regarding her first minor child . . . .\u201d However, the record indicates that no evidence was presented that Ms. Hayward had neglected her first child. Rather, Ms. Hayward gave her first child up for adoption.\nTermination of parental rights is indeed the most drastic remedy available in cases where the protection of children is at issue. The evidence in this case is both isolated and equivocal. I would find that the trial court erred in terminating Ms. Hayward\u2019s parental rights.", "type": "dissent", "author": "Judge Wynn" } ], "attorneys": [ "Lapping & Lapping, by Stephan Lapping, for petitioner appellee.", "Brown & Robbins, L.L.P., by Carol M. White, for respondent appellant.", "David G. Crockett Law Offices, by Jerry D. Rhoades, Jr., Guardian Ad Litem." ], "corrections": "", "head_matter": "IN RE: ERIC YOUNG, minor child\nNo. COA95-533\n(Filed 2 April 1996)\nParent and Child \u00a7 101 (NCI4th)\u2014 termination of parental rights \u2014 sufficiency of evidence of neglect\nThe evidence was sufficient to support the trial court\u2019s order terminating respondent\u2019s parental rights based on neglect of the child where it tended to show that respondent lived in filth and clutter, allowing roaches to crawl on her child, in his car seat and diaper bag, and on dirty clothes, allowing cat feces and cat urine in her home, and allowing dirty dishes and dirty clothes to pile up; she allowed these conditions to exist even after her move to another home; and she gave her child a \u201cmilk bottle with contents looking similar to cottage cheese.\u201d N.C.G.S. \u00a7 7A-289.32(2) and (21).\nAm Jur 2d, Parent and Child \u00a7 7.\nValidity of state statute providing for termination of parental rights. 22 ALR4th 774.\nValidity and application of statute allowing endangered child to be temporarily removed from parental custody. 38 ALR4th 756.\nValidity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect. 44 ALR4th 649.\nJudge Wynn dissenting.\nAppeal by respondent from order entered 3 November 1994 by Judge Michael E. Beale in Moore County District Court. Heard in the Court of Appeals 21 February 1996.\nOn 1 November 1994, the trial court entered an adjudication order holding that grounds existed to terminate respondent mother\u2019s parental rights based on neglect under N.C. Gen. Stat. \u00a7 7A-289.32(2) (1995). A subsequent dispositional order terminated her parental rights. From this order, respondent appeals.\nLapping & Lapping, by Stephan Lapping, for petitioner appellee.\nBrown & Robbins, L.L.P., by Carol M. White, for respondent appellant.\nDavid G. Crockett Law Offices, by Jerry D. Rhoades, Jr., Guardian Ad Litem." }, "file_name": "0163-01", "first_page_order": 199, "last_page_order": 204 }