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**FINAL**
In the Matter of X. HUFF
No. COA99-1256
(Filed 17 October 2000)
1. Termination of Parental Rights--failure to pay any costs of
foster care--reasonable portion--no finding of specific
amount
The trial court did not err by finding that termination of
parental rights was justified pursuant to N.C.G.S. § 7A-
289.32(4), which requires a parent to pay a fair, just, and
equitable portion of the cost of foster care, where the parents
made no payments during the pertinent six-month period. Although
the reasonable portion standard is often difficult to apply,
zero is not a reasonable portion under the circumstances here.
Moreover, there is no requirement that the court make a finding
as to a specific amount that would constitute a reasonable
portion.
2. Termination of Parental Rights--religious inquiry--Wiccan
parents
The trial court did not err in a termination of parental
rights proceeding by permitting questioning and testimony
concerning the religious beliefs and practices of the Wiccan
parents where the inquiry was appropriately brief and was a far
cry from the inquisition prohibited by Peterson v. Rogers, 111
N.C. App. 712; the questions addressed the ways in which the
parents' religious beliefs might impact their behavior in
specific ways rather than focusing on the general beliefs and
doctrines of the religion; the inquiry was primarily directed at
the father rather than an expert; and the court made no findings
regarding the religious practices of the parties and there is no
indication that the religious inquiry impacted the trial court's
decision.
3. Termination of Parental Rights--six children in seven years-
-few resources--finding not unconstitutional
The constitutional rights of the respondents in a
termination of parental rights proceeding were not violated by a
finding that the mother gave birth to six children in seven years
despite the fact that the parents had few financial resources.
In a termination of parental rights proceeding, there are factors
that may be weighed against a parent that might be
constitutionally protected in other circumstances. The findings
here, while arguably infringing on the autonomy of the parents to
some degree, are appropriate considerations within this context
since they bear directly on the likelihood of future neglect of
the child.
4. Termination of Parental Rights--findings--adopted from priorreviews
The trial court did not err in a termination of parental
rights proceeding by reciting and adopting findings from prior
review hearings involving placement of the child where five
findings out of fifty reiterated factual findings from prior
review hearings and the court considered conditions after the
loss of custody as well as evidence of neglect prior to losing
custody. The court's determination that termination of parental
rights was in the best interests of the child was independent of
the prior adjudication of neglect.
5. Termination of Parental Rights--hearsay testimony--
authentication of documents--bench trial--no showing of
reliance by court
There was no prejudicial error in a bench trial involving
termination of parental rights where the court admitted hearsay
statements and medical documents allegedly not properly
authenticated. An appellant must show that the court in a bench
trial relied upon the incompetent evidence; here, respondents
offer brief suggestions as to how the evidence could have
impacted the court's judgment in theory, but nothing specific.
6. Termination of Parental Rights--neglect--best interests of
child
The trial court did not err by concluding that it was in the
child's best interests to terminate parental rights where the
picture painted by the transcript and the record portrays parents
who failed over an extended period to provide a healthy and safe
environment and who failed to show significant improvement in
their parental abilities after removal of the child. There was
overwhelming evidence that the parents have not accepted
responsibility for the ways in which their actions caused their
family problems and the chronic nature of the behavior creates a
significant likelihood of future neglect.
Appeal by respondents from order entered 6 January 1999 by
Judge William A. Christian in Harnett County District Court. Heard
in the Court of Appeals 15 August 2000.
The Woodall Law Firm, P.A. by E. Marshall Woodall, for
petitioner-appellee.
Bain & McRae by Alton D. Bain, for respondent-appellant
Tampatha C. Huff.
Richard E. Jester, for respondent-appellant James J. Huff.
McLeod & Harrop by Donald E. Harrop, Jr., as Guardian ad
Litem.
Smith, Judge.
The Harnett County Department of Social Services (petitioner)
filed a petition to terminate the parental rights of respondents
(the parents) Tampatha C. Huff (the mother) and James J. Huff (the
father) to their child, Xavier J. Huff (the child). The trial
court ordered termination of respondents' parental rights, and
respondents appeal from that order. We affirm.
The child, born 22 December 1994, was initially removed from
respondents' home and placed in foster care in September 1995. The
child was subsequently adjudicated a neglected juvenile and his
physical and legal custody were awarded to petitioner on 20 October
1995. Placement of the child was reviewed at five hearings between
March 1996 and October 1997. At the fourth review hearing in April
1997, physical placement of the child was given to his paternal
grandparents, with whom he presently resides. On 7 August 1997,
petitioners filed a petition to terminate the parental rights of
respondents pursuant to Article 24B, Chapter 7A of our General
Statutes. The petition alleged that grounds for terminating
respondents' parental rights existed under three separate
subsections of N.C.G.S. § 7A-289.32 (1996): subsection (2) (neglect
or abuse), subsection (3) (child willfully left in foster care for
12 months), and subsection (4) (parents' willful failure to pay
reasonable portion of cost of care for the child).
A proceeding for termination of parental rights involves twostages. At the adjudication stage, the petitioner must
show by
clear, cogent, and convincing evidence that one or more of the
grounds warranting termination, as set forth in G.S. § 7A-289.32,
exist. N.C.G.S. § 7A-289.30(e) (1996). If one or more of the
specific grounds listed in the statute are shown, then the court
moves to the disposition stage to determine whether it is in the
best interests of the child to terminate the parental rights.
N.C.G.S. § 7A-289.31 (1996). The standard for review in
termination of parental rights cases is whether the court's
findings of fact are based upon clear, cogent and convincing
evidence and whether the findings support the conclusions of
law. See In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86
(1996) (citation omitted). The trial court determined that termination of parental rights
was warranted pursuant to all three of the grounds alleged in the
petition. The trial court then concluded that it was in the best
interests of the child to terminate parental rights, and ordered
the termination of respondents' parental rights on 6 January 1999.
Respondents appeal from that order, bringing forth 24 assignments
of error which we have condensed into six main issues for review.
I.
[1]Respondents first assign error to the trial court's
finding that termination of parental rights was warranted pursuant
to subsection (4) of G.S. § 7A-289.32. This subsection provides
for termination of parental rights where
[t]he child has been placed in the custody of
a county Department of Social Services . . .
or a foster home, and the parent, for a
continuous period of six months next preceding
the filing of the petition, has wilfully
failed for such period to pay a reasonable
portion of the cost of care for the child
although physically and financially able to do
so.
G.S. § 7A-289.32(4). Subsection (4) requires a parent to pay that
portion of the cost of foster care for the child that is fair, just
and equitable based upon the parent's ability or means to pay.
In
re Clark, 303 N.C. 592, 604, 281 S.E.2d 47, 55 (1981).
In the present case, the pertinent six-month period preceding
the filing of the petition is 7 February 1997 to 7 August 1997.
During this time, neither parent made any payments toward the cost
of care for the child. At the hearing, neither parent offered any
specific reasons for their failure to pay support. When the fatherwas asked why he failed to pay any support, he answered, I don't
think I know how to answer that question, sir. When the mother
was asked the same question, she stated that she did not make any
support payments because she and her husband were trying to get
[their] finances . . . in order.
Respondents do not dispute the following factual findings of
the trial court. The parents initially obligated themselves to pay
child support for the child while in foster care by signing a
service agreement on 6 December 1995. Despite the fact that social
workers advised the parents that failure to pay support could be
grounds for termination of their parental rights, the parents
failed to pay any support through December 1996, at which time the
parents moved to Asheboro, North Carolina. After moving, the
parents failed to provide their new address to the Child Support
Enforcement Office (the CSEO). Despite making numerous efforts to
contact the parents, the CSEO heard nothing from the parents until
approximately 17 months later, when the parents came to the CSEO
for paternity testing. After canceling one appointment to discuss
child support, the parents eventually signed a Voluntary Support
Agreement on 26 June 1998.
The cost of foster care placement for the six-month period
immediately preceding the filing of the petition was $828.00.
Neither parent made any support payments during the relevant six-
month period. Furthermore, neither parent made any support
payments whatsoever until over a year after the petition to
terminate parental rights was filed. On 30 October 1998, afterbeing found guilty of criminal contempt for non-payment of court-
ordered support, the mother paid the sum of $239.70 toward care for
the child. The father has yet to make any payments, and there is
a criminal contempt citation currently pending against the father
for his failure to make any payments.
On review, this Court must determine whether the trial
court's findings of fact were based on clear, cogent, and
convincing evidence.
In re Oghenekevebe, 123 N.C. App. 434, 435-
36, 473 S.E.2d 393, 395 (1996) (citation omitted). We believe
there was ample evidence from which the trial court could find that
the parents willfully failed to pay a reasonable portion of the
cost of care for the child.
Respondents attempt to rely on
Bost v. Van Nortwick, 117 N.C.
App. 1, 449 S.E.2d 911 (1994), for the proposition that a willful
failure to pay support cannot be shown where a parent is unable
to pay child support due to an inability to maintain employment.
Respondents argue that they were unable to make any support
payments because they were supporting two minor children, they were
attempting to reduce their debt, and they were unable to maintain
steady employment. Initially, we note that both parents were
employed for at least half of the relevant six-month period. We
also note that, in fact, the parents were caring for only one minor
child during this time (the second minor child referred to by
respondents was not born until 13 June 1998).
More importantly, respondents' reliance on
Bost is misplaced.
Bost involved the specific situation in which a parent is unable topay support due to a psychological or emotional illness.
48;
Id. at
16, 449 S.E.2d at 919. The father in that case was unable to pay
child support because his severe alcoholism rendered him unable
to maintain permanent employment.
Id. at 16, 449 S.E.2d at 920.
The Court held that in such cases a parent's failure to pay support
may be justified.
Id. at 17, 449 S.E.2d at 920. While it is clear
that respondents have had some difficulty in maintaining
employment, respondents have not indicated that any unemployment
during the relevant six-month period was a result of some
psychological or emotional illness that would warrant a finding
that their failure to pay support was not willful under the
reasoning in
Bost. In fact, any unemployment during this period
appears to have occurred only after the parents voluntarily
terminated previous jobs.
Also, despite respondents' arguments to the contrary, there is
no requirement that the trial court make a finding as to what
specific amount of support would have constituted a reasonable
portion under the circumstances. The cases cited by respondents
simply require that the trial court make specific findings that a
parent was able to pay some amount greater than the amount the
parent, in fact, paid during the relevant time period.
See In re
Garner, 75 N.C. App. 137, 141, 330 S.E.2d 33, 36 (1985);
In re
Manus, 82 N.C. App. 340, 349-50, 346 S.E.2d 289, 295 (1986). In
the case at bar, the trial court satisfied this requirement.
The parents failed to pay any portion of the cost of care for
the child during the relevant six-month period. Although thereasonable portion standard is often a difficult standard to
apply,
see Clark, 303 N.C. at 604, 281 S.E.2d at 55, we have no
difficulty concluding that zero is not a reasonable portion under
the circumstances here. We hold that the trial court did not err
in concluding that the parents were able to pay some amount above
zero. This assignment of error is overruled. Furthermore, because
we hold that termination was proper pursuant to subsection (4) of
G.S. § 7A-289.32, it is unnecessary to address respondents'
assignments of error pertaining to the other two subsections of the
statute on which the trial court based its decision.
See In re
Davis, 116 N.C. App. 409, 413, 448 S.E.2d 303, 305,
disc. review
denied, 338 N.C. 516, 452 S.E.2d 808 (1994).
II.
[2]Respondents next argue the trial court erred in permitting
questioning and testimony concerning the religious beliefs and
practices of the parents. The parents in this case belong to a
religion referred to during the proceedings as WICCA or Wicken
(hereinafter Wicken). Other than a few brief remarks by three
witnesses, the only inquiry into the religion of the parents
occurred when the trial court permitted the guardian ad litem to
question the father about his religious beliefs.
This line of questioning comprises approximately six pages of
the transcript. The father was asked whether his wife is a witch
and what this term means. The father responded that his wife is a
witch, and that this term is used in the Wicken religion to
describe someone who believes in the faith. The father was thenasked whether his wife can cast a spell, and he responded that he
did not know. He was also asked whether he was aware that his wife
had once stated that the reason one of her children slept well on
a particular night while in the hospital was because she had cast
a spell. The father stated he was not aware of this incident.
Following some additional questioning about casting spells,
the guardian ad litem asked the father about spells within the
context of the father's ability to find employment:
Q: Well, do you pray that you'll get a job?
MR. BAIN: Objection.
THE COURT: Overruled.
A: Yes, I do pray that I can get a job.
Q: Is that what you're relying on to help you get a
job?
A: No, I don't rely on it. Many [sic] of this is very
sympathetic in nature, if you look at it from a
psychological standpoint. The fact of praying, in
and of itself, is what helps bolster the human
spirit. The way that I prefer to pray, the way
that I think deep down will ultimately help me is
probably unorthodox in this part of the country but
is the way that I still choose to do so.
We are faced here with the specific tension that occasionally
arises between, on the one hand, the objective of determining the
best interests of the child, and, on the other hand, the desire to
avoid infringing upon the religious freedom of the parties
involved. We addressed this same issue in depth in
Petersen v.
Rogers, 111 N.C. App. 712, 433 S.E.2d 770 (1993),
rev'd on other
grounds, 337 N.C. 397, 495 S.E.2d 901 (1994).
Petersen involved a child custody proceeding to determine
whether custody of Paul, the minor child in question, would be
transferred to Paul's biological parents, who had consented to
Paul's adoption but had subsequently revoked their consent, orwhether custody would remain with the Petersens, the parents who
had adopted Paul. During the proceedings the court admitted
testimony about the Petersens' involvement with a religious
organization known as The Way. The court allowed two witnesses
to testify about The Way, which testimony comprised 147 pages of
the transcript and involved an in-depth examination of the general
beliefs, tenets, and practices of members of The Way.
Id. at 715,
433 S.E.2d at 773.
In its order, the trial court made findings of fact regarding
the religious practices of the Petersens and the biological
parents.
See id. at 716, 433 S.E.2d at 773. The trial court also
made findings regarding the home life of the Petersens and of the
biological parents, and concluded that both the Petersens and the
biological parents were fit and proper persons to have custody of
Paul.
See id. However, the court concluded that Paul's best
interests required that he live with his biological parents, with
no visitation from the Petersens unless approved by the biological
parents.
See id. at 717, 433 S.E.2d at 774.
On appeal, this Court reversed and remanded, holding that the
religious inquiry at trial had violated the First Amendment rights
of the Petersens.
See id. at 725, 433 S.E.2d at 778. The Court
set forth the general rule that a limited inquiry into the
religious practices of the parties is permissible if such practices
may adversely affect the physical or mental health or safety of the
child, and if the inquiry is limited to the impact such practices
have upon the child.
Id. at 719, 433 S.E.2d at 775 (citationsomitted). The Court placed special emphasis on the difference
between inquiry into the
practices of a religion, and inquiry into
the
beliefs of a religion, and concluded that the limited inquiry
may touch upon the
religious practices of the parties as they
relate to the health and safety of the child, but such inquiry may
not focus on the
general beliefs and doctrines of a religion.
Id.
(citation omitted) (emphasis added). We are guided by the
reasoning in
Petersen in holding that there occurred no violation
of the respondents' First Amendment rights in the present case.
A.
The most significant factor that distinguishes Petersen from
the present case is the extent of the religious inquiry. The Court
in Petersen treated the extent of the religious inquiry, including
147 pages of testimony from two witnesses called solely to testify
about The Way, as a determinative factor in its analysis. The
Court recognized that [a]lthough the trial judge has wide
discretion and control in child custody cases, we believe this
discretion could be abused by a religious inquiry so extensive that
it would violate [the First Amendment rights of the parties
involved] and thus become an inquisition. Id. at 717, 433 S.E.2d
at 774 (emphasis added). The Court found that precisely such a
religious inquisition had occurred, and for this reason reversed
and remanded the case to the trial court for proceedings free from
unwarranted religious inquisition into the beliefs of the parties.
Id. at 725, 433 S.E.2d at 778.
In the case at bar, the religious inquiry consisted of a fewbrief remarks by three witnesses, and six pages of inqu
iry during
the examination of the father. This inquiry can hardly be
described as an inquisition. Furthermore, it would be
unrealistic to expect a trial court to be able to make a
determination about whether the religious practices of the parents
may adversely affect the physical or mental health or safety of
the child, id. at 719, 433 S.E.2d at 775, without first allowing
some brief inquiry into the religious practices of the parents. In
other words, a trial court must have some preliminary information
regarding the religious practices of the parents in order to
determine whether the limited inquiry permitted by Petersen is
appropriate. The inquiry that transpired in this case was
appropriately brief, and a far cry from the type of inquisition
prohibited by Petersen.
B.
In addition to the extent of the inquiry, the nature of the
inquiry played a significant role in the Court's analysis in
Petersen, and distinguishes that case from the case at bar. The
Petersen Court stated that a limited inquiry may touch upon the
religious practices of the parties as they relate to the health and
safety of the child, but such inquiry may not focus on the general
beliefs and doctrines of a religion. Id. at 719, 433 S.E.2d at
775. In Petersen, the expert witness was asked general questions
about the tenets of The Way, such as whether The Way is a Christian
religion and whether members of The Way believe that Jesus Christ
was the Son of God. See id. at 720-21, 433 S.E.2d at 775-76. By contrast, the questions put to the father in
the present
case address the ways in which the parents' religious beliefs might
impact their behavior in specific ways. For example, the father
was asked whether he was aware that the mother believes that
casting spells can affect the behavior of their children. He was
also asked whether he believes that a spell can impact his ability
to get a job. We believe these sorts of questions are the kinds of
questions that are permissible under Petersen.
Furthermore, these questions appear especially appropriate
within the context of this case. One of the recurring themes
during the proceedings was the notion that the parents have such an
unusually strong need to portray themselves in a positive light
that they distort reality as a result. For example, Dr. Robert
Aiello testified that the mother's score on the Minnesota
Multiphasic Personality Inventory revealed a remarkable need to
present herself in the most favorable light possible in all
circumstances, resulting in the inability to accept responsibility
for how her behavior contributes to her family problems.
The trial court stated at the conclusion of the proceedings
that the parents have continued to demonstrate, really, an
apparent misunderstanding of their responsibility in terms of child
care, and that both parents seem to have an altered sense of
reality in that [t]hey've failed to recognize dangers to the
children inherent in their personal living habits and hygiene.
While respondents argue that the trial court's use of the phrase
altered sense of reality reveals an improper consideration of thereligion of the parents, we feel that, when placed in context,
this
phrase merely emphasizes the degree to which the parents are
unwilling to accept responsibility for their actions.
The trial court found as fact that [t]he parents have failed
to accept responsibility for their contributions to the problems
that resulted in the removal of the child from the home and the
child's continued placement in care. Within this context, it
seems quite appropriate that the father was questioned about
whether he and his wife rely on spells to solve practical problems
such as putting a child to sleep or finding employment.
C.
The Court in Petersen found especially troubling the fact that
testimony was admitted regarding The Way from two witnesses, one a
qualified expert and the other a Way minister. The Court stated
that [a]lthough [the expert witness] expressed concern over some
of the practices of The Way, she testified that she had never met
the Petersens or Paul. Therefore, none of her testimony could have
related to the present or possible future effect of the Petersens'
religious practices on Paul. Id. at 722, 433 S.E.2d at 776-77.
Thus, whether religious inquiry is appropriate depends, in part, on
the person at whom such inquiry is directed, and that person's
relationship to the family in question.
The limited religious inquiry in the present case was
primarily directed at the father regarding the parents' religious
practices. Such inquiry is inherently relevant to the present or
possible future impact of the parents' religious practices on thechild. We perceive a significant difference between, on the one
hand, questioning a father about the religious practices of the
family, and, on the other hand, questioning an expert witness and
a minister about the general tenets of the religion.
D.
It was also significant in Petersen that the trial court made
findings of fact regarding the religious practices of the parties.
See id. at 716, 433 S.E.2d at 773. For example, the trial court
found that the Petersens were members of The Way, describing The
Way as a Pentecostal, biblically-oriented Christian sect which
encourages its members to lead an affirmative lifestyle and . . .
to reflect religiosity by overtly speaking in tongues. Id. These
factual findings indicated that the trial court had been influenced
by the religious practices of the parties.
In the case at bar, the trial court made no findings regarding
the religious practices of the parties. In a bench trial, it is
presumed that the judge disregarded any incompetent evidence. In
re Paul, 84 N.C. App. 491, 497, 353 S.E.2d 254, 258, disc. cert.
denied, 319 N.C. 673, 356 S.E.2d 779 (1987), cert. denied, 484 U.S.
1004, 98 L. Ed. 2d 646 (1988). Therefore, even assuming arguendo
that the trial court erred in allowing any religious inquiry, such
error was not prejudicial because there is no indication that the
testimony impacted the trial court's decision.
Furthermore, in Petersen there was little evidence weighing in
favor of placing custody with the biological parents other than the
religious considerations. Therefore, it appeared likely that thetrial court's determination had been influenced by these
considerations. In the present case, there was an overwhelming
amount of evidence unrelated to the religion of the parents to
support the trial court's termination of parental rights. Thus,
any error in allowing the religious inquiry was not prejudicial.
This assignment of error is overruled.
III.
[3]Respondents next assign as error the factual finding of
the trial court that [n]otwithstanding the fact that the
respondent parents had little financial resources available to
them, the respondent mother gave birth to six children in seven
years. Respondents argue that procreation and parenthood are
matters protected by the State and Federal Constitutions, and that
the trial court's consideration of these matters violated the
constitutional rights of the parents. After careful consideration,
we believe the trial court's consideration of the number of
children born to the mother was an appropriate consideration of one
relevant fact among many related to the future well-being of the
child.
Respondents correctly assert that [t]he Constitution extends
special safeguards to the privacy of the home, just as it protects
other special privacy rights such as those of marriage,
procreation, motherhood, child rearing, and education.
Kaplan v.
Prolife Action League of Greensboro, 111 N.C. App. 1, 12, 431
S.E.2d 828, 833,
dismissal allowed,
disc. review denied, 335 N.C.
175, 436 S.E.2d 379 (1993),
cert. denied sub nom. Winfield v.Kaplan, 512 U.S. 1253, 129 L. Ed. 2d 894 (1994) (citing
United
States v. Orito, 413 U.S. 139, 142, 37 L. Ed. 2d 513, 517 (1973)).
However, within the context of a termination of parental rights
proceeding, there are factors that may properly be weighed against
a parent that, in other circumstances, might be constitutionally
protected from consideration. For example, this Court has upheld
termination of parental rights where one of the factors considered
by the trial court was the mother's marriage to a boyfriend who had
previously sexually abused the child in question.
See In re
Parker, 90 N.C. App. 423, 368 S.E.2d 879 (1988). Such
consideration is appropriate because, where a mother chooses to
marry a man who has previously abused her child, there is obviously
an increased likelihood that the child will suffer further harm if
parental rights are not terminated. Similarly, where parents
continue to have additional children despite significant financial
difficulties, and despite a chronic pattern of neglecting their
children, there is an increased likelihood that a child in their
care will continue to be neglected as a result of the diminishing
attention and resources the child will receive.
In the present case, the factual finding at issue appeared
within a long list of findings that the trial court considered in
reaching its conclusion. For example, the factual finding that
appears immediately after the finding in question states:
The parents have had three children since the
removal of the subject child from their home
on September 7, 1996, two of which reside with
them. Since the birth of these latter two
children, the parents have been the subject of
at least four investigations by the RandolphCounty Department of Social Services; at least
two of the investigations have been
substantiated. Substantiation was made in
connection with the parents' fifth child . . .
due to among other things, medical neglect and
unsanitary and unsuitable living conditions.
Such findings, while arguably infringing on the autonomy of
the parents to some degree, are appropriate considerations within
this context since they bear directly on the likelihood of future
neglect of the child. Therefore, we hold that the trial court's
consideration of the finding in question does not amount to a
violation of respondents' constitutional rights. This assignment
of error is overruled.
IV.
[4]Respondents next argue the trial court erred in reciting
and adopting as its findings the findings of fact from prior
review hearings involving placement of the child. Respondents
correctly concede that 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).
We further agree with respondents that
Ballard requires the trial
court in such cases to make an independent determination as to
whether grounds exist for termination at the time of the hearing.
Id. at 716, 319 S.E.2d at 223. However, we disagree with
respondents' assertion that the trial court in the instant case
failed to make an independent determination.
The trial court provided fifty detailed findings of fact,
comprising almost twenty pages in the record. Five of thesefindings reiterated factual findings from prior review hearings.
The trial court properly considered both evidence of neglect by the
parents prior to losing custody of the child (including the prior
adjudication of neglect) as well as evidence of conditions since
that time showing a likelihood of neglect in the future. The trial
court made a determination, independent of the prior adjudication
of neglect, that termination of parental rights was in the best
interests of the child at the time of the hearing. This assignment
of error is overruled.
V.
[5]Respondents next argue the trial court erred in admitting
in evidence various hearsay statements, as well as medical
documents which allegedly were not properly authenticated. The
mere admission by the trial court of incompetent evidence over
proper objection does not require reversal on appeal.
See Best v.
Best, 81 N.C. App. 337, 341, 344 S.E.2d 363, 366 (1986). Rather,
the appellant must also show that the incompetent evidence caused
some prejudice.
Id. In the context of a bench trial, an
appellant must show that the court relied on the incompetent
evidence in making its findings.
Id. at 342, 344 S.E.2d at 366
(citation omitted). Where there is competent evidence in the
record supporting the court's findings, we presume that the court
relied upon it and disregarded the incompetent evidence.
Id.
(citation omitted).
In the present case, although respondents offer some brief
suggestions as to how admission of the evidence in question, intheory, could have impacted the trial court's judgment, respondents
offer nothing specific to rebut the presumption that the trial
court disregarded any incompetent evidence that may have been
admitted. Thus, even assuming
arguendo that the evidence was
improperly admitted, respondents have failed to demonstrate
prejudicial error. This assignment of error is overruled.
VI.
[6]Finally, respondents assign as error the trial court's
determination that it would be in the best interests of the child
to terminate respondents' parental rights. Even where a trial
court finds that one or more grounds exist which warrant
termination of parental rights, termination of parental rights is
only required where the trial court further concludes that it would
be in the best interests of the child to do so. G.S. § 7A-289.31.
In the instant case, the picture painted by the transcript and
the record portrays parents who have failed over an extended period
of time to provide a healthy and safe environment for their
children, and who have failed to show any significant improvement
in their parental abilities since the removal of the child in
question by petitioner. There was overwhelming evidence presented
at the hearing that the parents have not accepted responsibility
for the ways in which their own actions have caused their family
problems. The chronic nature of such behavior creates a
significant likelihood of future neglect. We recite just a few of
the factual findings that support this conclusion:
(1) The child was removed from the care of the
respondent parents partially for the reason of theunsanitary condition in which the parents
maintained their home to include dirty and
cluttered conditions with clothes, dirty dishes,
bags of garbage, and particles of food on the
tables and floors, and the presence of roaches and
flies. After September of 1995, the parents
continued to allow their home to remain in an
unsanitary, unhygienic, and unsuitable condition.
(2) [S]ince January, 1997 [the parents] have not
visited with the child at all, have not sent the
child any letters, pictures, birthday cards . . . .
The parents have spoken to the child by telephone
on only one occasion since April of 1996. At all
times relative [sic] hereto the parents have had
the address and telephone number of the child.
(3) Since the birth of [the parents' fifth child], born
January 17, 1997, [this fifth child] has been
hospitalized three times for medical problems
associated with asthma or reactive airway disease.
The parents have failed to comply with the
recommendations of Dr. Mary Johnson regarding
proper treatment of and a proper home environment
for [this child]. Specifically, the parents
continue to this date to smoke and to expose the
child to cigarette smoke despite being instructed
on numerous occasions not to smoke around the child
. . . . As recently as November, 1998, the
respondent parents smoked marijuana in the presence
of their children and the parents have a pending
charge of simple possession of marijuana in
Randolph County, North Carolina. The respondent
parents also failed to keep an appointment for the
child to be evaluated at Baptist Hospital for a
heart murmur.
(4) Dr. Robert Aiello who performed the psychological
evaluation of the respondent mother testified that
in the absence of critical self-examination and
intensive counseling as recommended by him, future
children in the custody of the respondent mother
would be at risk.
(5) Both parents have failed to obtain psychological
counseling as recommended and ordered. . . . The
respondent mother has neither sought nor attended
counseling since [March 1997].
Based on the foregoing findings, we cannot say that the trial
court erred in concluding that it was in the child's best interests
to terminate respondents' parental rights. Therefore, this
assignment of error is overruled. In conclusion, we find no prejudicial error in the proceeding
to terminate respondents' parental rights. Furthermore, we hold
that the trial court's findings of fact were supported by the
evidence, and that the trial court's conclusions were supported by
the findings of fact. The order entered by the trial court is
affirmed.
Affirmed.
Judges GREENE and EDMUNDS concur.
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