An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-564

NORTH CAROLINA COURT OF APPEALS

Filed: 1 June 2004

IN RE:

C.A.J.                        McDowell County
K.M.J                        No. 02 J 54 [02 J 26]
                            No. 02 J 55 [02 J 27]

    Appeal by respondent from judgment and order entered 25 October 2002 by Judge David K. Fox in District Court, McDowell County. Heard in the Court of Appeals 27 January 2004.

    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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