IN RE:
C.A.J. McDowell County
K.M.J No. 02 J 54 [02 J 26]
No. 02 J 55 [02 J 27]
Goldsmith, Goldsmith & Dews, P.A., by James W. Goldsmith, for
McDowell County Department of Social Services, petitioner-
appellee.
Little, Sheffer & Golsan, P.A., by Andrew Sheffer, for
Guardian ad Litem.
David Childers for respondent-appellant.
McGEE, Judge.
The McDowell County Department of Social Services (petitioner)
filed a petition for the termination of parental rights of T.A.J.
(respondent) on 16 July 2002, with respect to C.A.J. and K.M.J.,
his two minor children (collectively, the children). Respondent
filed an answer to the petition on 5 August 2002. A hearing was
held on 24 and 25 October 2002 and the trial court terminated
respondent's parental rights to the children. Respondent appeals.
The evidence presented to the trial court tended to show that
C.A.J. was born on 27 March 1998 and K.M.J. was born on 6 September
2000 to respondent and L.R.J. Before the children were born,respondent was convicted of manslaughter in the death of his six-
week-old son from a prior marriage. K.M.J. suffered a fractured
femur at the hands of respondent on 3 March 2002. As a result,
respondent was convicted of felony child abuse and sentenced to an
active prison term. In an order entered 3 June 2002, K.M.J. was
adjudged to be abused and neglected as defined by N.C. Gen. Stat.
§ 7B-101(1) and (15); C.A.J. was adjudged to be neglected as
defined by N.C. Gen. Stat. § 7B-101(15). Respondent's parental
rights to the children were subsequently terminated in an order
entered 25 October 2002.
Respondent combines his two assignments of error into one
argument and asserts that the trial court erred in terminating his
parental rights without clear, cogent, and convincing evidence that
abuse, or the probability of its repetition, existed at the time of
the termination hearing. Respondent further argues that the trial
court abused its discretion in finding that the death of
respondent's son from a prior marriage created the probability that
the same thing would happen to the children at issue in the
petition.
Respondent first argues that there was not clear and
convincing evidence to support findings that respondent's children
were likely to be abused again. We first note that respondent
failed to except to any specific finding. However, respondent is
likely contesting finding number eighteen which states that "[i]n
the event the respondent father is released from incarceration with
the North Carolina Department of Correction[], said respondentwould be a risk to the children named in the petition should said
respondent be granted visitation and contact with the minor
children." Since there was no specific exception to this finding
or any other finding, the findings "are presumed to be correct and
supported by the evidence." In re Allred, 122 N.C. App. 561, 567,
471 S.E.2d 84, 88 (1996).
However, a review of the record and transcript shows that
finding number eighteen is supported by clear, cogent, and
convincing evidence. This finding is based upon a prior order
adjudicating the children to be abused and neglected, a report by
the guardian ad litem, and testimony of respondent, the children's
mother, and a social worker. Respondent contends there was also
contrary evidence, such as his providing for the children and
tending to their needs, as well as his undergoing counseling.
While respondent did provide some contrary evidence, the trial
court's findings are adequately supported by the evidence and are
binding on this Court.
As part of respondent's first argument, he also asserts that
the trial court should not have considered the outcome of the
felony child abuse proceeding because that matter was on appeal at
the time of the termination proceeding. In support of this
argument, respondent cites two cases which state that appeals are
exceptions to judgments. State v. Flanders, 4 N.C. App. 505, 167
S.E.2d 43 (1969); State v. Ruffin, 3 N.C. App. 307, 164 S.E.2d 503
(1968). However, when the trial court in the present case
questioned the children's mother at the termination hearing aboutrespondent's felony abuse conviction, respondent failed to object
to the questioning. Respondent also failed to object when the
conviction was discussed prior to any witnesses being called.
Further, respondent's own counsel questioned respondent about the
felony conviction. Under the rules of appellate procedure, "[i]n
order to preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion[.]" N.C.R. App. P. 10(b)(1). Accordingly, respondent
failed to preserve this issue for appellate review. See Phillips
v. Brackett, 156 N.C. App. 76, 80, 575 S.E.2d 805, 808 (2003).
However, even if this argument had been properly preserved, for the
reasons stated below, review of this argument is unnecessary.
We note that even if there was not evidence to support a
finding that abuse by respondent was likely to reoccur, or even if
the felony conviction should not have been considered, respondent's
first argument fails for a more fundamental reason. N.C. Gen.
Stat. § 7B-1111(a) "provides nine separate grounds upon which an
order terminating parental rights may be based." Whittington v.
Hendren (In re Hendren), 156 N.C. App. 364, 367, 576 S.E.2d 372,
375 (2003). In termination proceedings, "'[a] finding of any one
of the . . . separately enumerated grounds is sufficient to support
a termination.'" In re Yocum, 158 N.C. App. 198, 203, 580 S.E.2d
399, 403 (quoting In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d
900, 903 (1984)), aff'd, 357 N.C. 568, ___ S.E.2d ___ (2003). In
this case, petitioner alleged respondent's parental rights should
be terminated based upon subsections (a)(1) and (a)(8) of N.C. Gen.Stat. § 7B-1111.
Subsection (a)(1) provides for termination if "[t]he parent
has abused or neglected the juvenile." N.C. Gen. Stat. § 7B-
1111(a)(1) (2003). This provision is the basis of respondent's
first argument. However, subsection (a)(8) allows termination if
"[t]he parent has committed murder or voluntary manslaughter of
another child of the parent[.]" N.C. Gen. Stat. § 7B-1111(a)(8)
(2003). Under subsection (a)(1), "[i]f concluding that a juvenile
is neglected, the trial court must enter a termination order that
is 'based on an independent determination of existing neglect or a
determination that conditions exist which will in all probability
precipitate a repetition of neglect.'" In re Dhermy, ___ N.C. App.
___, ___, 588 S.E.2d 555, 559 (2003) (quoting In re Stewart
Children, 82 N.C. App. 651, 654, 347 S.E.2d 495, 497 (1986)).
Similarly, if there are allegations of abuse, "abuse or the
probability of its repetition" must "exist at the time of the
termination proceeding." In re Alleghany County v. Reber, 75 N.C.
App. 467, 470, 331 S.E.2d 256, 258 (1985), aff'd, 315 N.C. 382, 337
S.E.2d 851 (1986). Thus, under the neglect/abuse provision of
subsection (a)(1), there is a requirement that the neglect/abuse be
existing or likely to occur again. However, there is no such
requirement under N.C. Gen. Stat. § 7B-1111(a)(8). Under
subsection (a)(8), finding by clear and convincing evidence that a
parent has committed murder or voluntary manslaughter of another
child of the parent is sufficient grounds for termination of
parental rights. In the case before us, there is evidence in the record that
respondent was convicted of manslaughter in 1993 for the death of
his son from a prior marriage. Under N.C. Gen. Stat. § 7B-
1111(a)(8), this finding alone is sufficient to support the
termination of respondent's parental rights. Thus, respondent's
argument that there was insufficient evidence to support a finding
that the children were likely to be abused again is without merit
in light of the fact that termination is supported under N.C. Gen.
Stat. § 7B-1111(a)(8).
"Once one or more of the grounds for termination are
established, the trial court must proceed to the dispositional
stage where the best interests of the child[ren] are considered."
In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d 165, 166 (2002).
"The court is required to issue an order terminating the parental
rights unless it finds that the best interests of the child[ren]
indicate that the family should not be dissolved. . . . We review
the trial court's decision to terminate parental rights for abuse
of discretion." In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d
599, 602 (2002). Based upon the facts in this case, we find no
abuse of discretion by the trial court. Accordingly, this argument
is overruled.
Respondent next argues that the trial court abused its
discretion in finding that the death of his son from a prior
marriage created the probability that the same thing would happen
to the children at issue in this case. We first note that despite
respondent's assertion, the trial court did not expressly make afinding that the death of respondent's son from a prior marriage
created a probability that the same thing would happen to the
children at issue in this action. However, the trial court did
conclude as a matter of law that
based upon the evidence presented regarding
the respondent's prior manslaughter of his
child, [S.A.J.], and lack of participation in
psychological counseling or other services
designed to change the behavior of said
respondent, there is a reasonable likelihood
that abuse and neglect would reoccur in the
future if any of the children were placed back
with said respondent . . . .
"In a termination proceeding, the appellate court should
affirm the trial court where the court's findings of fact are based
upon clear, cogent and convincing evidence and the findings support
the conclusions of law." Allred, 122 N.C. App. at 565, 471 S.E.2d
at 86. To support its conclusion that there would be a reasonable
likelihood that abuse and neglect would reoccur due to the prior
manslaughter of respondent's son and respondent's lack of
counseling, the trial court made, among others, the following
findings of fact:
16. Due to the father's continuous
incarceration after being charged with felony
child abuse of [K.M.J.], there have been no
services that the McDowell County Department
of Social Services could provide to said
respondent and the respondent has not
undergone any counseling or other therapy
since he was convicted of manslaughter in 1993
for the death of his child, [S.A.J.].
17. The respondent father has committed
voluntary manslaughter of another child,
[S.A.J.], who was residing in the father's
home.
18. In the event the respondent fatheris released from incarceration with the North
Carolina Department of Corrections, said
respondent would be a risk to the children
named in the petition should said respondent
be granted visitation and contact with the
minor children.
There were no exceptions to these findings and they "are presumed
to be correct and supported by the evidence." Allred, 122 N.C.
App. at 567, 471 S.E.2d at 88. Further, these findings are
sufficient to support the contested conclusion of law.
Accordingly, this argument is overruled.
Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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