{ "id": 9442570, "name": "IN THE MATTER OF: MASHANNA NICOLE BLACKBURN, MINOR", "name_abbreviation": "In re Blackburn", "decision_date": "2001-04-03", "docket_number": "No. COA00-414", "first_page": "607", "last_page": "614", "citations": [ { "type": "official", "cite": "142 N.C. App. 607" } ], "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": "294 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569668, 8569702, 8569641, 8569742, 8569722 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0385-02", "/nc/306/0385-03", "/nc/306/0385-01", "/nc/306/0385-05", "/nc/306/0385-04" ] }, { "cite": "287 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "56 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519902 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0142-01" ] }, { "cite": "368 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524867 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0423-01" ] }, { "cite": "248 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555856 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0724-01" ] }, { "cite": "293 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "58 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524858 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0322-01" ] }, { "cite": "319 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "231" }, { "page": "232" } ], "opinion_index": 0 }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "713-14" }, { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "307 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766950, 4761735, 4765805, 4761782, 4762359 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0319-05", "/nc/309/0319-03", "/nc/309/0319-04", "/nc/309/0319-02", "/nc/309/0319-01" ] }, { "cite": "301 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523564 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0654-01" ] }, { "cite": "520 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "800", "parenthetical": "quoting Ayden Tractors v. Gaskins, 61 N.C. App. 654, 660, 301 S.E.2d 523, 527, disc. review denied, 309 N.C. 319, 307 S.E.2d 162 (1983)" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241824 ], "year": 1999, "pin_cites": [ { "page": "517", "parenthetical": "quoting Ayden Tractors v. Gaskins, 61 N.C. App. 654, 660, 301 S.E.2d 523, 527, disc. review denied, 309 N.C. 319, 307 S.E.2d 162 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0515-01" ] }, { "cite": "448 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "116 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524252 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0403-01" ] }, { "cite": "328 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523922 ], "year": 1985, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0239-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] } ], "analysis": { "cardinality": 758, "char_count": 17248, "ocr_confidence": 0.768, "pagerank": { "raw": 1.5757322710810128e-06, "percentile": 0.9924441540800255 }, "sha256": "7064be21e30c40fe5f799e8ae8ec863d6d1d3089cc8dc765695a165899f094ce", "simhash": "1:0f6bd5020046fed6", "word_count": 2795 }, "last_updated": "2023-07-14T17:11:55.437222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and TIMMONS-GOODSON concur." ], "parties": [ "IN THE MATTER OF: MASHANNA NICOLE BLACKBURN, MINOR" ], "opinions": [ { "text": "THOMAS, Judge.\nRespondent, Tammy Carter, mother of Mashanna Blackburn, appeals from an order entered by the trial court terminating her parental rights. For reasons discussed herein, we affirm the trial court.\nThe facts are as follows: Mashanna was born to respondent on 3 March 1995. On 19 May 1995, petitioner, the Yadkin County Department of Social Services, received a report alleging that Mashanna was neglected. During an interview with petitioner, respondent admitted taking Mashanna to a crack house, dealing illegal drugs, associating with known drug users in the child\u2019s presence and even leaving her alone with drug users. She further said she had engaged in prostitution to support her drug habit and that her live-in boyfriend was a drug user who had dealt in illegal drugs. There also was domestic violence between respondent and her boyfriend. As a result, she took part in a child protection plan devised and overseen by petitioner from May to September 1995. Throughout that period, however, respondent maintained custody of Mashanna. The whereabouts of Mashanna\u2019s father, Orrando Blackburn, were unknown.\nIn March of 1996, respondent was jailed for writing worthless checks and failure to appear in court. A juvenile petition was filed and an order to assume nonsecure custody of Mashanna was entered on 31 March 1996. On 8 April 1996, Mashanna was adjudicated neglected and dependent, custody was placed with petitioner, and the trial court ordered that reasonable efforts be made for reunification after respondent was released from jail. Although respondent was released on 14 May 1996, the child was not returned to her custody from foster care until September 1996.\nRespondent was again incarcerated on 14 March 1998 due to a probation violation and later received an active prison sentence of not less than fifty-two nor more than sixty-two months. Also on the fourteenth of March, an order for nonsecure custody of Mashanna was entered. At the time, Mashanna was found to have scabies and continued to suffer from language, socialization, and adaptive behavior delays. The trial court held a continued custody hearing on 16 March 1998, and declared Mashanna abandoned. Appropriate family placement was not available, causing the child to remain in foster care. In subsequent review hearings on 23 March 1998 and 14 September 1998, the trial court determined it was in Mashanna\u2019s best interests for custody to remain with petitioner, but that the goal or plan was still reunification with respondent.\nIn a third review hearing, however, on 8 March 1999, the trial court not only found it was in Mashanna\u2019s best interests for custody to remain with petitioner but also that petitioner was relieved of further responsibility to use reasonable efforts for reunification. The court found that petitioner \u201cmay pursue\u201d termination of parental rights.\nPetitioner filed a petition for termination of parental rights on 31 March 1999. On 15 December 1999, the trial court entered an order terminating respondent\u2019s parental rights. From this order, respondent appeals and asserts six assignments of error.\nWe note that when the petition was filed, Chapter 7A of the N.C. General Statutes governed termination of parental rights and is the controlling authority in the instant case. By the time the case was heard, however, Chapter 7B had been enacted. Among other modifications, references to \u201cchild\u201d have been changed to \u201cjuvenile\u201d in Chapter 7B.\nThere is a two-step process in a termination of parental rights proceeding. In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984). In the adjudicatory stage, the trial court must find that at least one ground for the termination of parental rights listed in N.C. Gen. Stat. \u00a7 7A-289.32 (now codified as section 7B-1111) exists. N.C. Gen. Stat. \u00a7 7A-289.30 (1998) (now codified as N.C. Gen. Stat. \u00a7 7B-1109). In this stage, the court\u2019s decision must be supported by clear, cogent and convincing evidence with the burden of proof on the petitioner. In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985). We note that Chapters 7A and 7B interchangeably use the \u201cclear, cogent and convincing\u201d and the \u201cclear and convincing\u201d standards. It has long been held that these two standards are synonymous. Montgomery, 311 N.C. at 109, 316 S.E.2d at 252. Once one or more of the grounds for termination are established, the trial court must proceed to the dis-positional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise. N.C. Gen. Stat. \u00a7 7A-289.31(a) (1998) (now codified as section 7B-1110(a)). See also In re Carr, 116 N.C. App. 403, 448 S.E.2d 299 (1994).\nWe first turn to the adjudication.\nRespondent argues the trial court committed reversible error in denying her motion to dismiss at the close of petitioner\u2019s evidence pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure, alleging that petitioner failed to show a right to relief. We disagree.\nA motion to dismiss pursuant to Rule 41(b) will be granted \u201cif the [petitioner] has shown no right to relief or if the [petitioner] has made out a colorable claim but the court nevertheless determines as the trier of fact that the [respondent] is entitled to judgment on the merits.\u201d Hill v. Lassiter, 135 N.C. App. 515, 517, 520 S.E.2d 797, 800 (1999) (quoting Ayden Tractors v. Gaskins, 61 N.C. App. 654, 660, 301 S.E.2d 523, 527, disc. review denied, 309 N.C. 319, 307 S.E.2d 162 (1983)). The trial court is able to weigh all evidence before it and make a determination. Here, there was substantial evidence of neglect that included domestic violence between respondent and her live-in boyfriend, inappropriately leaving the child in the care of others, respondent\u2019s illegal drug use and distribution in the presence of the child, an overall history of lawlessness, respondent\u2019s repeated incarcerations and a prior adjudication of neglect. A prior adjudication of neglect cannot be the sole basis of a termination proceeding, although it may be relevant evidence. In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). However, in the instant case, the prior adjudication is not the sole basis. The findings overwhelmingly establish a basis for surviving the motion to dismiss. Respondent has not shown that she is entitled to judgment on the merits at the close of petitioner\u2019s evidence. Thus, we find the trial court did not err and respondent\u2019s first assignment of error is rejected.\nBy respondent\u2019s second assignment of error, she argues the trial court committed error in concluding as a matter of law, after all of the evidence, that grounds existed for the termination of respondent\u2019s parental rights in that Mashanna is a neglected child. We disagree.\nN.C. Gen. Stat. \u00a7 7A-289.32(2) (now codified as section 7B-llll(a)) delineates nine possible grounds for termination of parental rights. The statute provides\n[t]he 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) [now codified as G.S. 7B-101(15)].\nA neglected child is\n[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile\u2019s 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\u2019s welfare; or who has been placed for care or adoption in violation of law.\nN.C. Gen. Stat. \u00a7 7A-517(21) (1998) (now codified as section 7B-101(15)). Iii determining neglect, the trial judge must find evidence of neglect at the time of the termination proceeding. Ballard, 311 N.C. at 716, 319 S.E.2d at 232. In the instant case, the child was not receiving proper care from her parent and, at the time of the termination proceeding, respondent was still unable to care for her child. She conceded that the earliest she would be able to care for Mashanna would be after January of 2003, her scheduled release date.\nThe trial court\u2019s findings of fact will be overturned only if respondent can show a lack of clear, cogent and convincing competent evidence to support the findings. In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982). Respondent argues there was insufficient evidence to show neglect because incarceration alone is not sufficient to demonstrate wilful abandonment. In re Maynor, 38 N.C. App. 724, 248 S.E.2d 875 (1978). However, respondent\u2019s current incarceration alone is not the basis for this finding of neglect. Respondent has repeatedly been incarcerated since 1989. In addition to facts already mentioned, petitioner was summoned to retrieve the child from the home of respondent\u2019s friend, Rodney Jarrett, in 1996. Jarrett\u2019s mother, who owned the home, alleged that Jarrett was a crack cocaine addict and that neither one of them would continue to care for Mashanna. In 1998, respondent left the child with Betty Palmer, who notified petitioner that she could not continue to care for Mashanna due to personal problems as well as a lack of money and food. Respondent\u2019s own mother, Barbara Hutchens, already rearing an older child of respondent\u2019s, refused to care for Mashanna.\nIn considering the circumstances in the aggregate, we find the trial judge did not err in concluding as a matter of law that grounds existed for the termination of parental rights, based on respondent\u2019s neglect of Mashanna. Thus, respondent\u2019s second assignment of error is rejected.\nWe shall combine, for our purposes, respondent\u2019s third, fourth, fifth and sixth assignments of error. She argues the trial court erred in its conclusions that: 1) the alleged repetition of the alleged neglect will continue; 2) there is no reasonable hope that respondent can correct conditions to appropriately care and provide for the child; and 3) it is in the best interests of the child that her parental rights be terminated. We disagree.\nOne of the underlying principles guiding the trial court in the dis-positional stage is the recognition of the necessity for any child to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all children from the unnecessary severance of a relationship with biological parents or legal guardians. N.C. Gen. Stat. \u00a7 7A-289.22(2) (now codified as section 7B-1100(2)). In all cases where the interests of the child and those of the child\u2019s parents or guardians are in conflict, however, action which is in the best interests of the child should be taken. N.C. Gen. Stat. \u00a7 7A-289.22(3) (now codified as section 7B-1100(3)).\nAfter the trial court has determined grounds exist for termination of parental rights at adjudication, the court is required to issue an order of termination in the dispositional stage, unless it finds the best interests of the child would be to preserve the parent\u2019s rights. In re Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988). This would ordinarily create a presumption for the issuance of the termination order once a termination ground has been established. However, a presumption is either rebuttable or conclusive. Black\u2019s Law Dictionary 1185 (6th ed. 1990). It is not conclusive because the trial judge has discretion. Nor is it rebuttable because it neither affects the burden of production or proof. Id. As our Supreme Court noted in In re Montgomery, the legislature has properly recognized that in certain situations, even where the grounds for termination could be legally established, the best interests of the child indicate that the family unit should not be dissolved. 311 N.C. 101, 316 S.E.2d 246 (1984). In sum, where there is 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. Id.\nWhile there is no requirement at this dispositional stage for the court to make findings of fact upon the issuance of an order to terminate parental rights, such findings and conclusions must be made upon any determination that the best interests of the child require that rights not be terminated. N.C. Gen. Stat. \u00a7 7A-289.31(b) and (c) (now codified as sections 7B-1110(b) and (c)).\nEvidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage. In the instant case, the trial court heard petitioner\u2019s evidence of repeated violations of service agreements, illegal drug use, other criminal behavior, domestic violence, incarcerations and not only a lack of care for Mashanna, but actually putting her in danger on many occasions. The pattern of neglect was long and unbroken which resulted in little permanency in the life of Mashanna.\nRespondent proffered evidence claiming she had overcome her problems and achieved rehabilitation while in prison. She enrolled in a cosmetology course there, frequently wrote letters to her daughter, and also wrote to petitioner and the court asking them not to terminate her parental rights. She requested visits with Mashanna, but those requests were denied.\nDespite her efforts at reformation, however, respondent has been written up at least eleven times for disciplinary problems during the latest incarceration, including disobeying orders, misusing medicine, theft of property, possessing non-threatening contraband and provoking an assault.\nWe note that the child and her best interests are at issue here, not respondent\u2019s hopes for the future. See In re Smith, 56 N.C. App. 142, 287 S.E.2d 440, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982). Respondent has not shown an improvement in her lifestyle. While she claims she no longer is engaging in criminal behavior, she is, after all, in a highly structured and secure facility. Additionally, there is no evidence that she is likely to make appropriate decisions as to her daughter\u2019s welfare. There was nothing upon which the trial court could reasonably base a decision to find it would not be in Mashanna\u2019s best interests to terminate parental rights.\nWe find the trial court did not abuse its discretion and therefore reject respondent\u2019s third, fourth, fifth and sixth assignments of error.\nBased upon the foregoing, the order of the trial court terminating respondent\u2019s parental rights is affirmed.\nAFFIRMED.\nJudges MARTIN and TIMMONS-GOODSON concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "N. Lawrence Hudspeth, III for respondent-appellant.", "Richard N. Randleman for petitioner-appellee.", "Dennis G. Martin, guardian ad litem for minor." ], "corrections": "", "head_matter": "IN THE MATTER OF: MASHANNA NICOLE BLACKBURN, MINOR\nNo. COA00-414\n(Filed 3 April 2001)\n1. Termination of Parental Rights\u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a termination of parental rights case by denying respondent mother\u2019s motion to dismiss at the close of petitioner\u2019s evidence under N.C.G.S. \u00a7 1A-1, Rule 41(b), because there was substantial evidence of neglect including domestic violence between respondent and her live-in boyfriend, inappropriately leaving the child in the care of others, respondent\u2019s illegal drug use and distribution in the presence of the child, an overall history of lawlessness, respondent\u2019s repeated incarcerations, and a prior adjudication of neglect.\n2. Termination of Parental Rights\u2014 neglect \u2014 clear, cogent, and convincing evidence\nThe trial court did not err by concluding as a matter of law that grounds existed under N.C.G.S. \u00a7 7A-289.32(2) (now N.C.G.S. \u00a7 7B-llll(a)) for the termination of respondent mother\u2019s parental rights based on neglect, because clear, cogent, and convincing evidence reveals that: (1) the child was not receiving proper care from her parent and at the time of the termination proceeding respondent was still unable to care for her child since she was in prison until January 2003; (2) respondent has been repeatedly incarcerated since 1989; and (3) respondent continually attempted to leave her child in the care of others.\n3. Termination of Parental Rights\u2014 best interests of the child \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in a termination of parental rights case by concluding the alleged repetition of alleged neglect will continue, there is no reasonable hope that respondent mother can correct conditions to appropriately care and provide for the child, and it is in the best interests of the child that her parental rights be terminated, because: (1) respondent has not shown an improvement in her lifestyle; (2) there is no evidence respondent is likely to make appropriate decisions as to her daughter\u2019s welfare; and (3) there is nothing upon which the trial court could reasonably base a decision to find it would not be in the child\u2019s best interests to terminate parental rights.\nAppeal by respondent from judgment entered 15 December 1999 by Judge Edgar B. Gregory in Yadkin County District Court. Heard in the Court of Appeals 11 January 2001.\nN. Lawrence Hudspeth, III for respondent-appellant.\nRichard N. Randleman for petitioner-appellee.\nDennis G. Martin, guardian ad litem for minor." }, "file_name": "0607-01", "first_page_order": 637, "last_page_order": 644 }