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**FINAL**
IN THE MATTER OF: JEREMY BRIM
No. COA99-1230
(Filed 29 August 2000)
1. Termination of Parental Rights--findings and conclusions--written order--recitation
in open court
The trial court did not err in a parental rights termination case by including two findings in
its written order that were not included in the trial court's recitation of its decision in open court,
because: (1) N.C.G.S. § 7A-651 does not require the trial judge to announce in open court its
findings and conclusions, but instead the terms of the disposition must be stated with particularity;
(2) the two pertinent findings relate to the adjudication by the trial court under N.C.G.S. § 7A-
289.32 to show that grounds for termination of respondent mother's parental rights existed at the
time of the hearing, and do not relate to the court's disposition under N.C.G.S. § 7A-289.31; and
(3) the order entered by the trial court is in general conformity with the disposition announced in
open court.
2. Evidence--lay opinion--psychiatrist
Although the trial court erred in a parental rights termination case by considering certain
letters written by one of respondent mother's treating psychiatrists who was not tendered as an
expert witness stating that respondent had experienced micro psychotic episodes since it was a
medical diagnosis beyond the allowable scope of testimony by a non-expert medical witness under
N.C.G.S. § 8C-1, Rule 701, the error was not prejudicial because: (1) there is no indication that
the trial court relied on opinions in the letter to supports its conclusion that grounds existed at the
time of the termination hearing to terminate respondent's parental rights; and (2) there was
substantial lay and medical evidence to support the findings of fact and conclusions of law.
3. Termination of Parental Rights--grounds--clear, cogent, and convincing evidence
The trial court did not err by finding that grounds existed under N.C.G.S. § 7A-289.32(2),
(3), (4), and (7) to terminate respondent mother's parental rights, because there was clear, cogent,
and convincing evidence that respondent's neglectful conduct continued and existed at the time of
the termination hearing.
4. Termination of Parental Rights--best interests of child
The trial court did not abuse its discretion in its determination that it would be in the best
interest of the child to terminate respondent mother's parental rights, because even though there
was testimony that there was a reasonable hope that the family could be reunited, the evidence
tended to show that after almost two years of diligent efforts by DSS, respondent was not able to
demonstrate that she could adequately provide for the needs of the child.
Appeal by respondent mother from a judgment entered 8 October
1998 by Judge Laurie Hutchins in Forsyth County District Court.
Heard in the Court of Appeals 6 June 2000.
Merri Elizabeth Mueller (respondent) appeals from a judgment
terminating her parental rights to Jeremy Brim, her minor child. Upon finding that grounds existed under N.C. Gen. Stat. § 7A-
289.32(2), (3), (4), and (7) to terminate respondent's parental
rights, the trial court concluded that it was in the best interest
of the child to terminate her parental rights.
At the termination hearing, the Forsyth County Department of
Social Services (DSS) presented evidence which tended to show that
Merri Mueller has been diagnosed with borderline personality
disorder for which her doctors have prescribed medication. Jeremy
was born on 8 November 1995 to respondent and Peter Brim. However,
Mr. Brim lived with respondent and the child less than one month.
Subsequent to Mr. Brim's departure, respondent's boyfriend, Robert
Roy Evans, came to live with respondent and Jeremy.
In March 1996, the child was taken to the hospital and
diagnosed with a spiral fracture of his upper arm. Jeremy was in
the care of his mother at the time of the injury. DSS was notified
that the cause of the injury was determined to be some sort of
trauma that could not have been self-inflicted. From March 1996
until mid-July 1996, DSS worked with respondent on a voluntary
basis. On 18 July 1996, DSS filed a petition alleging that Jeremy
was a neglected child and the court ordered him placed in the non-
secure custody of DSS until the adjudication of the matter.
At the adjudicatory hearing held 18 December 1996, the trial
court concluded that Jeremy was neglected within the meaning of
N.C. Gen. Stat. § 7A-517(21), and ordered that he remain in the
custody of DSS. In an effort to facilitate reunification of the
child with respondent, the court also ordered that respondent
demonstrate an ability to control her anger. The trial courtfurther ordered that respondent continue in individual therapy in
order to help her focus on the needs of the child, rather than her
own needs; that respondent learn to protect the child from violence
in the home; that respondent take her medication as prescribed;
and that respondent become able to maintain her basic household
expenses. Respondent was also ordered to refrain from harassing
Jeremy's caretakers and others involved with the case, to attend
all of the child's pediatric appointments, and to enter into a
written plan with objectives aimed at establishing a permanent plan
for her child.
Review hearings were held in January, September and December
of 1997. At these hearings respondent was ordered to attend
Structural Family Therapy with her boyfriend in order to address
various issues, including violence in their relationship; adhere
fully to the items specified in the prior service agreement; paychild support of $127.00 each month (later reduced to $63.50 each
month); and cooperate with extensive family evaluation in order to
assess her ability to raise Jeremy. On 27 April 1998, DSS filed a
petition to terminate the parental rights of respondent and Peter
Brim.
At the termination hearing, Mr. Brim voluntarily relinquished
his parental rights. DSS offered testimony regarding respondent's
level of cooperation and behavior during the period it offered
services to respondent. Ms. Suzette Hager, a social worker with the
Forsyth County Department of Social Services, testified that,
although respondent loved Jeremy, respondent continued to be unable
to apply things learned in parenting class to her interactions with
the child. Despite Ms. Hager's efforts, respondent's home was not
child-proofed. Ms. Hager also stated that respondent focused more
on herself than on the child, became frustrated with the child
during visitations, was not aware of the child's "cues" such as
indications that he did not need to be fed, and had difficulty
controlling Jeremy's behavior. Ms. Hager further testified that
respondent had exhibited belligerent and threatening behavior
towards her. She noted that Jeremy had been in foster care for 23
months at the time of the termination hearing and was bonded with
his foster family. Ms. Hager recommended that respondent's parental
rights be terminated despite her love for her son because she could
not provide an appropriate home for him.
Various psychiatrists and psychologists who treated or
evaluated Ms. Mueller also testified. Dr. Chad Stevens, one ofrespondent's treating psychiatrists, testified that he had
difficulty keeping respondent on medication to treat her condition
because she would either refuse to take the medication or she would
independently decide to quit taking it. Dr. Stevens further
testified that respondent made threats against both him and DSS
employees.
Dr. Howard T. Bosworth, an expert in clinical psychology,
conducted a child custody evaluation. He noted that respondent has
difficulty comprehending Jeremy's level of development. Dr.
Bosworth further testified that his primary concern was
respondent's level of stability and her ability to maintain any
stability. He questioned whether respondent could stay on
medication without supervision. His ultimate opinion was that
respondent is not capable of providing for the general welfare and
supervision of Jeremy and that the incapacity would not
significantly change in the foreseeable future.
Dr. Frank B. Wood, an expert in neuropsychology, conducted a
series of tests on Ms. Mueller as part of a psychological
evaluation. He testified that in his opinion a child left in the
care of respondent would be at risk. His opinion was based in part
on his finding that respondent has a tendency to act out hostility
and aggression, so that pharmacological treatment would be required
for the foreseeable future. Dr. Wood also testified that he
believed respondent to be a danger to anyone who made her angry.
Upon consideration of all the evidence presented, the trial
court determined that grounds existed to terminate the parentalrights of respondent, and that it would be in the best interest of
the child that respondent's parental rights be terminated.
Respondent appealed.
Forsyth County Department of Social Services, by Assistant
County Attorney Theresa A. Boucher, for petitioner appellee.
Lisa S. Costner for Merri Mueller respondent appellant.
Teeter Law Firm, by Kelly S. Lee, for Guardian ad Litem
respondent appellee.
HORTON, Judge.
Respondent contends that (I) the written termination order
contained certain findings of fact not stated by the trial court in
its oral entry of the order in open court; (II) grounds did not
exist to terminate her parental rights; (III) termination of her
parental rights was not in the best interest of the child; and (IV)
certain letters written by Dr. Chad Stevens were erroneously
received and considered as evidence. After careful consideration
of the entire voluminous record, we affirm the judgment of the
trial court.
We note initially that the North Carolina Juvenile Code,
including provisions relating to the termination of parental
rights, was extensively revised and renumbered as Chapter 7B of our
General Statutes, effective 1 July 1999. 1998 N.C. Sess. Laws ch.
202. The petition for termination of parental rights in the case
before us was filed on 27 April 1998, prior to the effective date
of the revisions. Therefore, all references in this opinion are to
the provisions of Chapter 7A then in effect.
I.
[1]First, respondent argues that the written order
terminating her parental rights contains language not included in
the trial court's recital in open court of his decision in this
matter. Here, after a detailed recital in open court of its
findings, which consumed more than 25 pages of the transcript, the
trial court concluded that "grounds exist pursuant to N.C.G.S. § 7-
A-289.32 [sic] to terminate parental rights under parens (2), (3),
(4), (5), and (7)," and further concluded that termination was in
the best interest of the child. The written order entered by the
trial court contained a similar dispositional provision, and its
detailed written order generally conforms with the oral statements
made by the trial court.
Respondent argues, however, that the written order signed and
entered by the trial court contained at least two findings not
recited in open court. First, Finding of Fact No. 14 in the written
order stated in part that "[s]ince December 18, 1996, Merri Mueller
has continued to neglect Jeremy Brim by failing to complete the
terms of the Juvenile Court's Order which was specifically designed
to alleviate the conditions which brought the child into foster
care and facilitate reunification." Second, Finding of Fact No. 62
in the written order stated that "[p]lacement of Jeremy Brim into
the care of Mary [sic] Mueller would result in a probability of a
repetition of neglect."
Respondent argues that by adding additional findings to the
oral recital of its order, the trial court violated N.C. Gen. Stat.§ 7A-651, which provides that in juvenile cases the
dispositional order shall be in writing and
shall contain appropriate findings of fact and
conclusions of law. The judge shall state with
particularity, both orally and in the written
order of disposition, the precise terms of the
disposition including the kind, duration and
the person who is responsible for carrying out
the disposition and the person or agency in
whom custody is vested.
N.C. Gen. Stat. § 7A-651 (1995). We have previously held that this
statute "does not require the trial judge to announce in open court
his findings and conclusions . . . ." Instead, "the
terms of the
disposition [must] be stated in open court with 'particularity.'"
Matter of Bullabough, 89 N.C. App. 171, 179, 365 S.E.2d 642, 646
(1988).
Having carefully reviewed both the oral and written versions
of the trial court's termination order, we hold that the trial
court did not err. First, the findings about which respondent
complains relate to the
adjudication by the trial court pursuant to
the provisions of N.C. Gen. Stat. § 7A-289.32 (1995) that grounds
for termination of respondent's parental rights existed at the time
of the hearing, not to the court's
disposition pursuant to N.C.
Gen. Stat. § 7A-289.31. N.C. Gen. Stat. § 7A-561 (1995), on which
respondent relies, is a part of Article 41 of Chapter 7A and
relates to dispositional orders entered in cases where juveniles
have been adjudicated to be delinquent, undisciplined, abused,
neglected, or dependent. Article 24B of Chapter 7A dealt with
proceedings to terminate parental rights.
In support of her position, respondent cites
In re Bullabough,but
Bullabough involved a juvenile adju
dicated to be delinquent,
not a termination of parental rights. Even assuming, however,
that N.C. Gen. Stat. § 7A-561 applied to the entry of dispositional
orders in termination cases, the order entered by the trial court
in this case is in general conformity to the disposition announced
in open court. At all relevant times, N.C. Gen. Stat. § 7A-
289.31(a) entitled "Disposition," provided that
[s]hould the court determine that any one or
more of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the child unless the court
shall further determine that the best
interests of the child require that the
parental rights of such parent not be
terminated.
Unlike N.C. Gen. Stat. § 7A-651, there is no requirement in N.C.
Gen. Stat. § 7A-289.31(a) that the court orally state "with
particularity" the exact terms of the disposition.
Here, following a lengthy and complicated termination trial
with a transcript of more than 1,000 pages, the able trial court
weighed the evidence, then recited forty detailed findings of fact
in open court, made conclusions of law, and decreed the termination
of respondent's parental rights. The written order later entered
does not differ in substance from that announced in open court.
This assignment of error is overruled.
II.
[2]Next, respondent assigns error to the trial c
ourt's
consideration of certain letters written by Dr. Chad Stevens, aResident in Psychiatry at Baptist Hospital. Respondent argues that
the letters contained opinions that should not have been considered
by the court because Dr. Stevens was not tendered as an expert
witness. Specifically, respondent challenges Finding of Fact No. 16
in the Order terminating respondent's parental rights, in which the
trial court stated that
[a]t a periodic review hearing on January 2
3,
1997, Court reviewed a letter from Dr.
Stevens, Ms. Mueller's psychiatrist on her
progress. Dr. Stevens noted that she had to
move out of her home, and had become agitated,
and claimed she was being abused by a wide
variety of people. Several "micro psychotic"
incidents occurred where there was impaired
reality, poor judgment, and that she really
believed she was being abused.
Respondent argues that Rule 701 of the N.C. Rules of Evidence
limits the scope of testimony given by one not tendered as an
expert to that "(a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his
testimony . . . ." N.C. Gen. Stat. § 8C-1, Rule 701 (1992).
Respondent argues that Dr. Stevens' statement in his letter of 19
January 1997 (the letter) that respondent had experienced "micro
psychotic" episodes was a medical diagnosis beyond the allowable
scope of testimony by a non-expert medical witness.
A careful review of the record and transcript in this case
reveals that Dr. Stevens' 19 January 1997 letter was received in
evidence by the trial court at the 23 January 1997 review hearing.
Following the 23 January 1997 hearing, Judge Spivey orally entered
an Order which was reduced to writing and signed by him on 3February 1997. Judge Spivey's Order recited, in part, that "[t]he
Court received a letter from Dr. Chad Stevens, [respondent's]
psychiatrist as to her progress." There is no indication in the
record that there was any objection to Judge Spivey's consideration
of the letter from Dr. Stevens.
Further, Dr. Stevens identified the letter, marked as
Petitioner's Exhibit 5, during his testimony at the termination
hearing, and recalled that the letter was prepared by him at the
request of Mr. Elliott, then counsel for respondent. Respondent
objected to the introduction of the letter into evidence on the
grounds that Dr. Stevens had not been qualified as an expert, to
which counsel for petitioner responded that the trial court had
already agreed to take judicial notice of everything in the
juvenile court file. Based on the statement of counsel for
petitioner the trial court allowed the letter to be introduced into
evidence. However, nothing in the transcript of the proceedings
below indicates that the trial court agreed to take notice of the
entire juvenile file. It appears, therefore, that the trial court
erroneously admitted the January 1997 letter from Dr. Stevens based
on a misstatement by counsel for petitioner. We do not agree,
however, that the error was prejudicial in this case.
Apparently, it is not disputed that Dr. Stevens' letter of 19
January 1997, admitted as Petitioner's Exhibit Number 5, is
authentic and was admitted into evidence at the 23 January 1997
review hearing. The trial court merely summarized the contents of
the letter in its termination order, as a part of its meticulousrecitation of the history of the case. There is no indication,
however, that the trial court relied on opinions in the letter to
support its conclusion that grounds existed at the time of the
termination hearing to terminate respondent's parental rights.
Further, there was substantial lay and medical evidence in the
record to support the findings of fact and conclusions of law made
by the trial court. Therefore, even assuming the trial court erred
in the admission of Dr. Stevens' 19 January 1997 letter, we cannot
find that the error was prejudicial to respondent in light of the
overwhelming evidence supporting the trial court's decision. Thus,
this assignment of error is overruled.
III.
[3]Respondent next argues that the trial court erred in
finding that grounds existed to terminate her parental rights.
Termination of parental rights is a two-stage proceeding. At the
adjudication stage the petitioner must show by clear, cogent and
convincing evidence that grounds exist to terminate parental
rights.
In Re Young, 346 N.C. 244, 485 S.E.2d 612 (1997). If one
or more of the grounds listed in N.C. Gen. Stat. § 7A-289.32 are
shown, then the court moves to the dispositional stage "to
determine whether it is in the best interest of the child to
terminate the parental rights."
Id. at 247, 485 S.E.2d at 615.
Here, the trial court found that grounds existed under N.C.
Gen. Stat. § 7A-289.32(2), (3), (4) and (7) to terminate
respondent's parental rights to Jeremy. N.C. Gen. Stat. § 7A-
289.32 (1995). We must first determine whether there is clear,cogent and convincing evidence establishing one or more of these
statutory grounds before we review the trial court's disposition.
N.C. Gen. Stat. § 7A-289.32 provides that
[t]he court may terminate the parental
rights upon a finding of one or more of the
following:
* * * *
(2) The parent has a
bused or neglected the
child. The child shall be deemed to be
abused or neglected if the court finds
the child to be an abused child within
the meaning of G.S. 7A-517(1), or a
neglected child within the meaning of
G.S. 7A-517(21).
N.C. Gen. Stat. § 7A-289.32(2) (1995). "Neglect" is defined in
N.C. Gen. Stat. § 7A-517(21) (1995) as
[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.
Id.
"[A] prior adjudication of neglect may be admitted and
considered by the trial court in ruling upon a later petition to
terminate parental rights on the ground of neglect." In Re
Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).
However, such prior adjudication, standing alone, will not suffice
where the natural parents have not had custody for a significant
period prior to the termination hearing. Id. Therefore, the court
must take into consideration "any evidence of changed conditions inlight of the evidence of prior neglect and the probability of a
repetition of neglect. 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." Id. at 715,
319 S.E.2d at 232 (citation omitted)(first emphasis added).
In this case the trial court specifically found that
14. Merri Mueller has neglected Jeremy Brim. On
December 18, 1996, Jeremy Brim was adjudicated to be a
neglected child within the meaning of G.S. 7A-517(21).
Since December 18, 1996, Merri Mueller has continued to
neglect Jeremy Brim by failing to complete the terms of
the Juvenile Court's Order which was specifically
designed to alleviate the conditions which brought the
child into foster care and facilitate reunification. Ms.
Mueller has:
&
nbsp;a.) Failed to demonstrate an ability to control
her anger,
&
nbsp;b.) Failed to refrain from harassing her child's
caregivers and using law enforcement in an
inappropriate manner,
&
nbsp;c.) Failed to utilize the concepts learned in
Structured Family therapy to insure a stable
home environment for Jeremy Brim to return,
&
nbsp;d.) Failed to maintain suitable stable housing
free of the risk of eviction,
e.) Failed to maintain full-time employment,
&
nbsp; f.)
Failed to demonstrate financial
responsibility,
&
nbsp; g.) Failed to focus on and provide for J
eremy's
needs,
&
nbsp; h.)
Failed to visit with the child on a regular
visitation schedule,
&
nbsp; &nb
sp; i.) Failed to provide the Department of Social
Services with the names of any relatives who
could provide care for Jeremy,
&
nbsp; &nb
sp; j.) Failed to pay court ordered child support for the
care and maintenance of Jeremy Brim.
These findings are fully supported by the evidence of record. The
testimony of Drs. Stevens, Bosworth and Wood corroborate the trial
court's finding regarding respondent's anger management skills.
Testimony received from Mr. Robert Evans, respondent's live-in
boyfriend, supports the court's finding regarding the financial
situation of respondent. Mr. Evans testified that at the time of
the hearing he and respondent were living at a motel; that they had
been involved in arguments that developed into physical encounters
before, during, and after undergoing Structural Family Therapy; and
that he believed their living situation was worse at the time of
the hearing than it was when the child was removed from the home
because they had no secure place to live and no means of
transportation.
Ms. Hager of DSS testified that respondent continued to harass
Jeremy's caretakers, failed to demonstrate financial
responsibility, could not focus properly on Jeremy's needs, missed
scheduled visitations, and did not keep DSS informed of changes in
her circumstances. Evidence that respondent's neglectful conduct
continued, and existed at the time of the termination hearing,
complied with the Ballard decision. See also In Re Young, 346 N.C.
244, 485 S.E.2d 612 (1997).
In light of our holding that the trial court did not err in
finding that grounds exist to terminate respondent's parental
rights under N.C. Gen. Stat. § 7A-289.32(2), we need not discuss
the remaining three grounds for termination asserted by petitioner.
IV.
[4]Finally, respondent assigns error to the trial court's
determination that it would be in the best interest of the child to
terminate respondent's parental rights. Even though the trial
court found that one or more grounds existed which would warrant
termination of respondent's parental rights, the trial court was
not required to terminate her rights if the best interest of the
child dictated otherwise. N.C. Gen. Stat. § 7A-289.31 (1995);
In
Re Becker, 111 N.C. App. 85, 431 S.E.2d 820 (1993);
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) (stating that the best interest of the child is
paramount).
Respondent offered the testimony of Dr. Nawar M. Alnaquib, who
testified as an expert in general medicine and psychiatry,
pediatrics and child development. Dr. Alnaquib testified that she
had been treating respondent since October 1997, that respondent
was diagnosed with borderline and personality disorder, and that
she treated respondent by changing her medication. Dr. Alnaquib
testified that respondent had shown improvement over the course of
treatment, and opined that if respondent remained compliant with
her medication and therapy regimen, and if respondent was given a
good support system, she could care for Jeremy. Dr. Alnaquib
testified that respondent had not developed a close relationship
with Jeremy, and recommended that the proceeding be delayed for
that purpose. Dr. Alnaquib's supervisor, Dr. Wayne Denton,
testified that with medication, therapy, and a support group,respondent could maintain a job and raise a family.
Respondent argues that, because of the improvements noted by
Dr. Alnaquib, the court should have found that there was a
"reasonable hope" that the family could be reunited. However, we
cannot say that the trial court abused its discretion in ordering
the termination of respondent's parental rights. While we are
mindful of the perceived improvements in respondent's mental
condition, we are also mindful that the evidence tended to show
that after almost two years of diligent efforts by DSS, respondent
was not able to demonstrate that she could adequately provide for
the needs of Jeremy. We find particularly relevant the testimony
of Ms. Jane Malpass and the findings based thereon.
Ms. Malpass is contractually employed by the North Carolina
Division of Social Services as a Child Welfare Consultant, and
testified as an expert in child development, child development
permanency planning, foster care placement and social work
practice. She testified to the diligent efforts of DSS to reunite
respondent with her child. Ms. Malpass also testified regarding
the effect of any further delay on a permanent placement of young
Jeremy, given his age and close bond to his foster family. She
stated that further delay would be detrimental because children
Jeremy's age "are beginning to feel some real fears about
separation in general. . . . Children who are removed from their
homes at between the ages of two and four show the most serious
effect as adults." Ms. Malpass further testified that given
Jeremy's positive relationship with his foster mother, theunlikelihood of his return to his natural mother in the near
future, and his current stage of development, he should be cleared
for adoption by his foster family.
Based on the foregoing findings and testimony, we cannot say
that the trial court abused its discretion in finding and
concluding that it was in Jeremy's best interest to terminate
respondent's parental rights. Therefore, this assignment of error
is overruled.
In conclusion, we find no prejudicial error in the proceeding
to terminate respondent's parental rights. The order entered by
the trial court is affirmed.
Affirmed.
Judges GREENE and HUNTER concur.
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