In Re Phifer

312 S.E.2d 684 (1984)

In re Walter Wendell PHIFER.

No. 8320DC725.

Court of Appeals of North Carolina.

March 6, 1984.

Michael W. Taylor, Albemarle, for respondent.

Lefler & Bahner by John M. Bahner, Jr., Albemarle, for petitioner.

WELLS, Judge.

Through various assignments of error, respondent contends that the trial court's findings are not supported by the evidence and the findings do not support the trial court's conclusions and judgment. For reasons which we state in our opinion, we will limit our opinion to the question of whether the findings support the conclusions and judgment.

Proceedings to terminate parental rights are governed by N.C.Gen.Stat. § 7A-289.32 (1981), which provides, in pertinent part, for termination upon the following grounds:

. . . . .

(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).

. . . . .

(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.

A neglected child, as defined by N.C.Gen. Stat. § 7A-517(21) (1981) is one 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 other remedial care recognized under State Law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law.

We turn first to respondent's contention that the findings of fact do not support the trial court's conclusion that Walter was a neglected child within the meaning of G.S. §§ 7A-289.32 and 7A-517(21). At most, the relevant findings of fact show that Walter was removed from respondent's care on one occasion because of her intoxication; that respondent was drunk on approximately four occasions between December 1981 and January 1982; that respondent has asked for assistance in heating her home; that between February 21 and March 24, 1982 respondent contacted the department of social services (DSS) once but did not respond to DSS's efforts to arrange visits between respondent and Walter; that respondent missed or was late to two pediatrician's appointments and that Walter suffered from severe diaper rash on one occasion.

Petitioner argues that findings that respondent has abused alcohol show that Walter lived in an "environment injurious to his health," demonstrating neglect within the meaning of G.S. § 7A-517(21). Petitioner also contends that respondent's drinking habits and Walter's diaper rash show that respondent failed to provide adequate care and supervision for Walter within the meaning of the statute. At the very most, these findings present a threat that at some time in the future respondent might not be able to provide adequate care and supervision, if she fails to change her habits and lifestyle. Aside from Walter's diaper rash, these findings do not show that respondent's behavior has had any adverse effect on Walter. A finding of fact that a parent abuses alcohol, without proof of adverse impact upon the child, is not a sufficient basis for an adjudication of termination of parental rights for neglect. Petitioner apparently recognizes the paucity of findings of actual harm to Walter, and strenuously contends that a threat of future harm is sufficient grounds for termination of parental rights. We disagree. Both G.S. §§ 7A-289.32 and 7A-517(21) speak in terms of past neglect and make no provision for termination for threatened future harm. It is clear, however, that our legislature was mindful of the plight of children threatened by a risk of future neglect, as shown by the terms of G.S. § 7A-544. Under that statute, DSS may obtain temporary custody of a child where there is a risk of neglect by the parent or guardian. This supports our position that the legislature was aware of the problem urged by petitioner, and simply did not choose to make risk of neglect a grounds for termination of parental rights.

It is also significant that petitioner is unable to cite any decision from our courts supporting the contention that risk of harm is sufficient grounds for termination. In In re Dinsmore, 36 N.C.App. 720, 245 S.E.2d 386 (1978), there was evidence that the mother was an alcoholic, but termination of her parental rights was based on allegations of nonsupport and abandonment. There was no contention that the mother had neglected her child within the meaning of the statute simply by her status as an alcoholic.

While the cases are not unanimous, the majority of other states which have considered the question deny termination of parental rights upon a mere showing that a parent has abused alcohol or drugs, without some evidence of harmful effect upon a child. See, e.g., Matter of S.D. Jr., 549 P.2d 1190 n. 25 (dicta) (Alaska 1976); Matter of Appeal in Pima County, 25 Ariz.App. 380, 543 P.2d 809 (1975); In re J.M., 131 Vt. 604, 313 A.2d 30 (1973), but see In re Scarlett, 231 N.W.2d 8 (Iowa 1975).

We note that the trial judge made numerous findings concerning respondent's criminal convictions, her failure to find employment and failure to comply with various agreements made with petitioner. These findings are not relevant to the issue of neglect in this case, since there is no showing that these events had any effect upon Walter. We note, however, that G.S. § 7A-289.32(3) permits termination of parental rights of a parent who

... has willfully left the child in foster care for more than two consecutive years without showing to the satisfaction of the court that substantial progress has been made ... in correcting those conditions which led to the removal of the child or without showing positive response ... to the diligent efforts of [DSS] ... to encourage the parent to strengthen the parental relationship ... or to make and follow through with constructive planning for the future of the child.

If petitioner wishes to seek termination of respondent's parental rights on the grounds of respondent's failure to correct the conditions which led to the removal of Walter, then it must comply with the statute, which clearly requires a two year "trial" period for the parent. One of the most disturbing aspects of this case has been the apparent haste with which petitioner has sought to terminate respondent's parental rights. Respondent has had custody of Walter for only two months; a very short time in which to demonstrate her fitness as a parent. It is clear, of course, that in some cases acts of neglect sufficient to support an order terminating parental rights may occur in less than two months. In the case at bar, however, given the lack of proof of harm to Walter, respondent's interest in preserving the rights of parenthood clearly outweigh petitioner's interest in obtaining the drastic remedy of termination of parental rights.

We turn now to respondent's contention that there were insufficient findings of fact to support the trial judge's conclusion that respondent failed to pay a reasonable sum for Walter's care while he was in DSS custody. In considering whether a parent has failed to pay a reasonable portion of the cost of care, the trial judge must make findings of fact concerning both the ability of the parent to pay and the amount of the child's reasonable needs. In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981), In re Biggers, 50 N.C.App. 332, 274 S.E.2d 236 (1981). Although the trial judge in the case at bar made some findings concerning respondent's resources, he made no finding as to her ability to pay or the cost of Walter's care. Findings of fact concerning respondent's resources for the period after July, 1982 are irrelevant, since the termination statute specifically limits consideration to the amount of support paid for the six months next preceding the filing of the petition in termination. We hold that the findings of fact do not support the conclusion of law that respondent failed to pay a reasonable portion of the cost of Walter's care.

For the reasons stated above, we hold that there were insufficient findings of fact to support the trial judge's adjudication that Walter Phifer was a neglected child, and that respondent had failed to provide support within the meaning of G.S. § 7A-289.32. Because of our holding that the order terminating respondent's parental rights must be reversed, we need not reach respondent's other assignments of error.

Reversed.

BRASWELL and PHILLIPS, JJ., concur.