IN THE MATTER OF:
JOSHUA EDWARD MORRIS,
CHRISTINA DAWN PEELER, Mecklenburg County
JENNIFER LYNN PEELER Nos. 00-J-117, 118,
and 119, 120
AMELIA LEANN VELASCO
Associate County Attorney Connelia Houston for Mecklenburg
County Department of Social Services petitioner appellee.
The Fuller Law Firm, by Trevor M. Fuller for Lewis Peeler
respondent appellant.
Leslie C. Rawls for Bonnie Velasco respondent appellant.
No brief filed for Alvarino Velasco respondent appellant.
McCULLOUGH, Judge.
Respondents Bonnie Velasco, Alvarino Velasco and Lewis Peeler
appeal from orders terminating their parental rights. Mrs. Velasco
is the mother of four minor children: Joshua Edward Morris, born on
11 August 1984; Christina Dawn Peeler, born on 21 February 1988;
Jennifer Lynn Peeler, born on 16 March 1992; and Amelia Leann
Velasco, born on 14 November 1997. Mr. Peeler is the father of
Christina and Jennifer. Mr. Velasco is the father of Amelia.
Paternity has not been conclusively determined for Joshua; the twoputative fathers are John Milam and Billy J. Morris. At the time
the children were taken into DSS custody, Bonnie and Alvarino
Velasco were married and lived together in Mecklenburg County,
North Carolina. On 3 September 1998, the trial court entered non-
secure orders giving the Mecklenburg County Department of Social
Services (DSS) custody of the four children based on allegations of
abuse. On 5 November 1998, the children were adjudicated to be
neglected and dependent juveniles. A dispositional hearing was
held on 8 December 1998. On 8 February 2000, DSS filed petitions
to terminate the parental rights of Bonnie Velasco as to Joshua,
Christina, Jennifer, and Amelia. On the same date, DSS also filed
petitions to terminate the parental rights of Lewis Peeler as to
Christina and Jennifer; of Alvarino Velasco as to Amelia; and of
Billy Morris and John Milam as to Joshua. Bonnie Velasco, Alvarino
Velasco, and Lewis Peeler appealed.
At the adjudication hearing on 5 November 1998, DSS and its
division of Youth and Family Services (YFS) presented evidence that
it had been involved with the children and their parents since
1993. Allegations of abuse were substantiated on 6 October 1997
and 14 March 1998. DSS also investigated an allegation of sexual
abuse on 16 August 1998. The three oldest children, Joshua,
Christina and Jennifer, moved repeatedly between the residences of
Mr. and Mrs. Velasco and Mr. Peeler. DSS caseworkers determined
that Mr. Peeler's home was unsuitable for the children because it
was roach infested and filthy. Mr. and Mrs. Velasco's home was
also unsuitable, because Mrs. Velasco hit the children with a belt,and the children developed head lice after staying at the Velasco
home. Both Mr. Peeler and Mrs. Velasco admitted to smoking
marijuana. Christina Peeler also stated that Mr. Velasco sexually
molested her while her mother was away from the home; according to
Christina, her mother didn't believe me and hit me in the face for
lying. According to workers at a domestic violence assessment
organization, Mr. Peeler scored off the charts with regard to
lethality. DSS offered services to the family on numerous
occasions, but reported that its efforts met with little or no
success. DSS also expressed concern for the children and believed
reunification was not in the children's best interests.
At the conclusion of the evidence, the trial court made the
following findings of fact:
9. [YFS investigator] Ms. Tate-Williams was investi-
gating a referral that Christina had been sexually
molested by Mr. Velasco. On the date of the trial,
YFS completed its investigation and determined this
report was unfounded.
10. During the course of this investigation, Ms. Tate-
Williams visited the homes of both Mr. Peeler and
Mrs. Velasco. Ms. Tate-Williams witnessed the
father's residence was filthy.
11. Mr. Peeler's kitchen was roach infested and there
were even roaches inside the refrigerator. In
addition to roaches and clutter in the kitchen, Ms.
Tate-Williams noticed the girls' bed had very dirty
and discolored sheets.
12. Ms. Tate-Williams observed bruises on Jennifer's
arms and legs.
13. Ms. Tate[-]Williams testified Christina and
Jennifer suffered from head lice and missed a week
of school because of parental indifference and the
head lice.
14. Mrs. Velasco acknowledged to Ms. Tate-Williams she
hit Jennifer with a belt, causing bruises but said
this was an isolated incident and she would not
repeat this.
* * * *
17. On August 20, 1998, while she was talking with Ms.
Velasco on the telephone, Mrs. Velasco stated she
and Mr. Peeler smoked marijuana.
18. Mrs. Velasco acknowledged spending approximately
$50 per month on marijuana and she stated Mr.
Peeler spent between $500 and $600 a month on
marijuana.
* * * *
31. Mr. Peeler denied he had recently smoked marijuana
and stated he had not smoked marijuana since his
military service in Vietnam in the early 1970's.
The Court does not find his denial of drug use to
be credible.
32. Mr. Peeler has a lengthy arrest record, most of
which involve assault and other crimes of violence.
* * * *
34. When the girls came into [his] house, [Mr. Peeler]
noticed both had bruises on or about their legs.
35. He asked the girls what had happened to them and
they stated their mother had beaten them with a
belt.
* * * *
40. Mr. Peeler denied the girls slept on dirty sheets
when they came to visit him.
* * * *
45. The Court finds the children are neglected because
they live in an environment injurious to their
health and do not receive proper care, supervision
or discipline.
46. The Court finds the children are dependent because
they are in need of placement or assistance.
47. The Court makes these findings by clear and
convincing evidence.
* * * *
49. At this time, the children's continuation in or
return to their home is contrary to their best
interest.
The trial court concluded all four children were neglected and
dependent, and that [i]t is in the children's best interest to
remain in the legal custody of YFS with placement in foster care.
The children were placed in foster care, and supervised visits
between all parents and their respective children were ordered.
Mr. Peeler was also allowed to visit Joshua.
During the dispositional hearing, the trial court determined
the issues to be resolved in the case were alleged sexual and/or
physical abuse, issues of alleged substance abuse, and issues
involving appropriate parenting skills. The case plan documented
that Mr. Peeler and Ms. Velasco express their love for their
children and want them returned to their custody. Jennifer,
Christina and Joshua express a desire to return home. Ms. Velasco
has expressed a willingness to cooperate with YFS. The trial
court fully incorporated the DSS case plan, but amended it to (1)
include Mr. Velasco (as it had omitted him before) and (2) include
more specificity as to what Mrs. Velasco was required to do. The
trial court stated the permanent plan was reunification of the
family. While visitation was desirable, [a]t this time, the
children's return to their home is contrary to their best
interest. The trial court ordered that the children remain in foster
care under the supervision of YFS, with supervised visitation under
specified conditions. As directed by the case plan, Mrs. Velasco
was to go to the family center for an intake appointment; learn
appropriate parenting skills by completing parenting classes and
cooperating with any other services recommended by the family
center; demonstrate an ability to appropriately discipline,
supervise and care for her children; attend appointments to
complete her psychological evaluation and comply with the
recommendations of the evaluations; undergo a drug assessment and
comply with any recommendations; maintain sobriety; and submit to
random drug tests if requested by YFS.
According to the trial court and the DSS case plan, Mr. Peeler
was to undergo a psychological evaluation; attend appointments to
complete his psychological evaluation and comply with the
recommendations of the evaluations; attend a domestic violence
program; submit to a drug assessment and comply with any
recommendations; maintain sobriety; and submit to random drug tests
if requested by YFS.
At the 1 April 1999 review hearing, the trial court noted that
Mrs. Velasco had completed parenting classes and her psychological
evaluation, and had a job. However, the trial court also noted
that
3. The following remains to be accomplished before
reunification can be achieved.
a. The mother needs to follow through with her
therapy appointments.
b. The mother has financial difficulties, i.e.
paying rent.
c. The mother has changed jobs twice since the
last court hearing on December 8, 1998.
d. The mother needs to complete the domestic
violence assessment.
e. Alvarino Velasco refuses to sign a case plan.
f. Louis [sic] Peeler has made no progress on the
case plan.
Mr. and Mrs. Velasco had financial problems and twice asked YFS for
money to pay their rent. Mrs. Velasco missed at least two domestic
violence assessment appointments, did not appear to pay child
support though she was employed, and did not understand the gravity
of her daughter Christina's anxiety regarding possible sexual
molestation by Mr. Velasco. A YFS social worker, Ms. Susan Miller,
supervised multiple visits between Mrs. Velasco and her children.
Ms. Miller stated that Mrs. Velasco expressed a desire to regain
custody of Amelia, but not the other children; Mrs. Velasco
apparently made this statement in the presence of her three older
children. On another occasion, Mrs. Velasco showed Christina a
photograph of Mr. Velasco, even though Christina consistently
stated he had sexually molested her. Ms. Miller also noted the
children had head lice after visiting the Velascos. Finally, there
was evidence that Mrs. Velasco had been asked to participate in her
children's therapy, but had not done so. Mr. Velasco did not make
any progress toward reunification with his children and did not
participate in therapy. Finally, Mr. Peeler made no progress toward
reunification with his children. Mr. Peeler failed to attend thedomestic violence program, did not undergo a psychological
evaluation, and tested positive for marijuana during his drug
screenings.
DSS noted that the children were doing well in their foster
placements; they appeared stabilized and had improved academically.
Joshua, Christina, and Jennifer lived with one family, while Amelia
lived with another. The foster families encouraged parent and
sibling visitation, but were willing to adopt the children should
their birth parents' parental rights be terminated. DSS again
recommended that the children remain in foster care and that the
trial court authorize termination of parental rights. The trial
court ordered the children to remain in the legal custody of DSS
and remain with their foster families. Visitation was ordered to
continue until the next hearing.
At the permanency planning hearing on 2 July 1999, the trial
court noted the parents' shortcomings and heard evidence regarding
the children's progress in therapy and in their foster placements.
At the conclusion of the hearing, the trial court changed its goal
from reunification to termination of parental rights. The trial
court ordered DSS to proceed with termination of parental rights
for all the parents, though the foster parents were directed to
continue visitations between the birth parents and the children.
The trial court held a hearing to consider termination of
respondents' parental rights on 3 August, 27 September, 29
September, 3 October, and 27 October 2000. At the time of the
hearing, Mrs. Velasco had moved out of the home she shared with Mr.Velasco in order to regain custody of her children. However, she
admitted she had not instituted divorce proceedings. Mr. Peeler
got married and lived with his wife, Phyllis.
The trial court found that Mrs. Velasco failed to correct the
conditions which prompted DSS to remove the children in the first
place. Specifically, Mrs. Velasco failed to demonstrate an ability
to appropriately discipline, supervise, and care for her children,
did not apply the skills she learned during parenting classes, did
not address the problem of head lice, did not participate in her
children's therapy, refused individual therapy for herself,
continued to deny Christina's allegations that she was molested by
Mr. Velasco, missed some scheduled visits with her children and
failed to take responsibility for her absences, had difficulty
maintaining steady employment, and had difficulty maintaining
housing.
The trial court found that Mr. Velasco made no efforts toward
correcting the conditions which prompted DSS to take Amelia away
from the home. Specifically, Mr. Velasco consistently refused to
sign the case plan and made only one visit to see Amelia. Finally,
the trial court found that Mr. Peeler failed to rectify the
conditions which led to removal of his children. Specifically, Mr.
Peeler failed to participate in any substance abuse treatment, had
two positive drug screens, did not receive a psychological
evaluation, did not complete a domestic violence assessment, did
not know the names of his children's therapists, and consistently
failed to follow through with any of the services provided by DSS. The trial court reiterated that Joshua, Christina, Jennifer,
and Amelia were neglected and dependent juveniles within the
meaning of N.C. Gen. Stat. § 7B-101 (1999). The trial court
concluded the children had suffered continued neglect and the
probability of further neglect was high, that Mr. Velasco willfully
failed to pay a reasonable portion of the cost of care for the
children while they were in the custody of DSS, that the children
had been out of their parents' homes considerably longer than the
twelve-month period set forth in N.C. Gen. Stat. § 7B-1111(a)(2)
(1999), and that Alvarino Velasco, Billy Morris, and John Milam
willfully abandoned their children for at least six months
immediately preceding the filing of the petition to terminate
parental rights. After weighing the evidence, the trial court
found the existence of three statutory grounds which supported
termination of Mrs. Velasco's parental rights, four statutory
grounds which supported termination of Mr. Velasco's parental
rights, and two statutory grounds which supported termination of
Mr. Peeler's parental rights. The trial court found the existence
of three statutory grounds which supported termination of both Mr.
Milam's and Mr. Morris' parental rights.
Bonnie Velasco's parental rights were terminated based on the
following grounds in N.C. Gen. Stat. § 7B-1111(a):
(1) The parent has abused or neglected the
juvenile. The juvenile shall be deemed
to be abused or neglected if the court
finds the juvenile to be an abused
juvenile within the meaning of G.S. 7B-
101 or a neglected juvenile within the
meaning of G.S. 7B-101.
(2) The parent has willfully left the
juvenile in foster care or placement
outside the home for more than 12 months
without showing to the satisfaction of
the court that reasonable progress under
the circumstances has been made within 12
months in correcting those conditions
which led to the removal of the juvenile.
Provided, however, that no parental
rights shall be terminated for the sole
reason that the parents are unable to
care for the juvenile on account of their
poverty.
* * * *
(6) That the parent is incapable of providing
for the proper care and supervision of
the juvenile, such that the juvenile is a
dependent juvenile within the meaning of
G.S. 7B-101, and that there is a
reasonable probability that such
incapability will continue for the
foreseeable future. Incapability under
this subdivision may be the result of
substance abuse, mental retardation,
mental illness, organic brain syndrome,
or any other similar cause or condition.
Lewis Peeler's parental rights were terminated based on N.C.
Gen. Stat. § 7B-1111(a)(1) and (2). Mr. Velasco's parental rights
were terminated based on N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3),
and (7). Mr. Milam's and Mr. Morris' parental rights were
terminated based on N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (7).
In addition to the trial court's finding that grounds existed
to terminate respondents' parental rights, the trial court also
found that it was in the children's best interests to terminate the
parental rights of all the parents. On 28 November 2000, the trial
court entered an order terminating the parental rights of Bonnie
Velasco, Alvarino Velasco, Lewis Peeler, Billy Morris, and JohnMilam. Mrs. Velasco, Mr. Velasco, and Mr. Peeler appealed.
On appeal, Mrs. Velasco argues the trial court erred by (I)
terminating her parental rights when an effective review was
impossible, due to inaudible tapes and a complete lack of tapes of
the best interests hearing; (II) making unsupported findings of
fact and conclusions of law; and (III) terminating her parental
rights. Mr. Peeler argues the trial court erred by (I) terminating
his parental rights when an effective review was impossible, due to
a complete lack of tapes of the best interests hearing; (II)
concluding that he neglected his children; and (III) concluding
that he failed to make reasonable progress. For the reasons set
forth herein, we disagree with respondents' arguments and affirm
the order of the trial court.
We first note that Mr. Milam and Mr. Morris did not appeal
the termination of their parental rights by the trial court. While
Mr. Velasco did submit a notice of appeal, he has not presented a
brief to this Court and has failed to preserve his case for our
review. When a respondent fails to file a brief as required by
N.C.R. App. P. 28 (2002), [h]is exceptions and assignments of
error are therefore abandoned. In re Custody of Maxwell, 7 N.C.
App. 59, 60, 171 S.E.2d 20, 21 (1969). In light of Mr. Velasco's
failure to take timely action, his appeal is subject to dismissal.
See N.C.R. App. P. 13(c) (2002). We will, therefore, address only
the arguments of Mrs. Velasco and Mr. Peeler.
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