IN THE MATTER OF:
J.D.S.
Wake County
No. 02 J 482
Juanita B. Hart and Corinne G. Russell, Wake County Attorney's
Office, for appellee-Wake County Human Services.
Richard Croutharmel, Wake County Guardian ad Litem Program,
for appellee-child
Terry F. Rose for respondent-appellant mother.
STEELMAN, Judge.
Appellee-child (J.D.S.) was placed in the nonsecure custody of
appellee Wake County Human Services (Human Services) on 14 February
2001 pursuant to a petition by Human Services alleging neglect by
the mother (primarily based on improper discipline). By order
filed 18 June 2001, arising out of a hearing on 14 March 2001, the
trial court adjudicated the child neglected by respondent-appellant
mother (respondent) and placed J.D.S. in the custody of her father,
and conditions were ordered, the compliance with which were
required for reunification of respondent and J.D.S. These
conditions were: (1) complete a psychological evaluation at Human
Services and comply with its recommendations; (2) complete asubstance abuse assessment and comply with any recommendations; (3)
complete anger management class at Human Services; (4) complete an
approved parenting class; (5) maintain stable housing and
employment; and (6) pay child support as required through Wake
County Child Support Enforcement. J.D.S. was removed from the
custody of her father on 11 June 2001 and placed in the custody of
Human Services upon allegations that she was neglected by her
father. J.D.S. was adjudicated a neglected juvenile by order filed
10 October 2001. This case was reviewed on multiple occasions
subsequent to this order, and changes in the requirements for
reunification were implemented. On 30 May 2002 the trial court
entered its final order outlining the requirements respondent had
to meet to achieve reunification with J.D.S., which in addition to
the requirements listed in the 18 June 2001 order included: (1)
Respondent demonstrate appropriate parenting skills, and comply
with the recommendations of Human Services; (2) respondent
participate in J.D.S.'s therapy; (3) respondent participate in
J.D.S.'s medical care and education; and (4) respondent maintain
weekly contact and monthly visits with the social worker. Based on
its assessment of the efforts of J.D.S.'s parents, Human Services
subsequently changed its recommendation from reunification of
J.D.S. and her parents to a plan preparing for both reunification
and termination of parental rights and adoption to an outside
family. Human Services finally changed its recommendation to
outright termination of parental rights and placement of J.D.S. by
adoption. On 8 and 10 January 2003 The trial court conducted ahearing on the petition by Human Services to terminate the parental
rights of J.D.S.'s parents. On 21 February 2003 an order
terminating the parental rights of respondent and J.D.S.'s father
was filed. From this order terminating her parental rights,
respondent appeals.
“[I]n order to prevail in a termination of parental rights
proceeding . . . the petitioner must: (1) allege and prove all
facts and circumstances supporting the termination of the parent's
rights; and (2) demonstrate that all proven facts and circumstances
amount to clear, cogent, and convincing evidence that the
termination of such rights is warranted.” In re Pierce, 356 N.C.
68, 70, 565 S.E.2d 81, 83 (2002). “A clear, cogent and convincing
evidentiary standard is a higher standard than preponderance of the
evidence, but not as stringent as the requirement of proof beyond
a reasonable doubt.” In re Hardesty, 150 N.C. App. 380, 385, 563
S.E.2d 79, 83 (2002).
A proceeding for termination of parental
rights requires the trial court to conduct a
two part inquiry. N.C.G.S. § 7B-1109(e) (2001)
directs that the court first “shall take
evidence, find the facts, and shall adjudicate
the existence or nonexistence of any of the
circumstances set forth in G.S. [ § ] 7B-1111
which authorize the termination of parental
rights of the respondent.” Disposition is
governed by N.C.G.S. § 7B-1110 (2001), which
provides in relevant part that upon a finding
“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 . . . unless the court shall
further determine that the best interests of
the juvenile require that the parental rights
of the parent not be terminated.” N.C.G.S. §
7B-1111(a)(2001).
In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003).
On appeal, “our standard of review for the termination of parental
rights 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.'” Id. (citations omitted). “So
long as the findings of fact support a conclusion based on [the
relevant statute], the order terminating parental rights must be
affirmed.” In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d
393, 396 (1996)(citation omitted).
Respondent has not assigned as error the trial court's
findings of fact, thus they are binding on appeal. In re Wilkerson,
57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982). “When the trial
court is the trier of fact, the court is empowered to assign weight
to the evidence presented at the trial as it deems appropriate.
In this situation, the trial judge acts as both judge and jury,
thus resolving any conflicts in the evidence.” Oghenekevebe, 123
N.C. App. at 439, 473 S.E.2d at 398 (citations omitted). Further,
respondent has not assigned as error the trial court's conclusion
that termination of respondent's parental rights was in the best
interest of J.D.S., and thus has waived any objection to that
conclusion. In re Baker, 158 N.C. App. 491, 497, 581 S.E.2d 144,
148 (2003). Our review in this case is thus limited to whether the
trial court's findings of fact support its conclusions of law that
respondent committed acts under N.C. Gen. Stat. § 7B-1111
warranting termination of her parental rights. The trial court found three grounds for termination of
respondent's parental rights:
a. That the . . . mother neglected the child
within the meaning of N.C.G.S. Section 7B-
101(15), and it is probable that there would
be a repetition of the neglect if the child
was returned to the care of the . . . mother.
b. That the . . . mother willfully left the
child in foster care for more than twelve (12)
months without showing to the satisfaction of
the court that reasonable progress under the
circumstances has been made in correcting the
conditions which led to the removal of the
child. Poverty is not the sole reason that
the . . . mother [is] unable to care for the
child.
c. That the child has been placed in the
custody of the Petitioner and the . . .
mother, for a continuous period of six months
next preceding the filing of the Petition,
willfully 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.
Any one of these grounds is sufficient to support termination,
Baker, 158 N.C. App. at 497, 581 S.E.2d at 148; In re Pierce, 67
N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984).
In her first assignment of error respondent argues that the
trial court erred in terminating her parental rights based upon
neglect because the trial court failed to find that neglect was
present at the time of termination or that there was a probability
of repetition of neglect. We disagree.
In order for the trial court to terminate someone's parental
rights based on neglect, it must find that:
The parent has . . . neglected the juvenile.
The juvenile shall be deemed to be . . .
neglected if the court finds the juvenile tobe . . . a neglected juvenile within the
meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111 (2004). N.C. Gen. Stat. § 7B-101(15)
(2004) defines a neglected juvenile 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.
Respondent contends that the trial court improperly relied on
the prior adjudication of neglect to support its termination of her
parental rights based upon neglect. Respondent argues that the
trial court's findings of fact do not support the conclusion that
she was neglecting J.D.S. at the time of the termination hearing.
In this case J.D.S. had been in foster care for 20 months prior to
the termination of parental rights hearing.
“[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 in light 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 re Brim, 139 N.C. App. 733, 742, 535 S.E.2d 367, 372
(2000)(second emphasis removed).
In the instant case J.D.S. was adjudicated neglected mainly
based on respondent's improper use of physical discipline, which
included blows that left marks on J.D.S. The trial court's
findings of fact from the 18 June 2001 order adjudicating J.D.S.
neglected by respondent show that respondent was investigated on
multiple occasions regarding the use of improper discipline,
beginning when J.D.S. was about six months old. Respondent
continued to use improper discipline, including an incident where
respondent whipped J.D.S. with a belt, despite repeated admonitions
by Child Welfare Services to refrain from such conduct. Respondent
was investigated by Wake Child Protective Services in 1998, 1999,
2000, and 2001. Respondent was referred for child welfare
treatment services in 1998 and 1999, but each time the case was
closed when respondent sent J.D.S. to live with a relative.
J.D.S.'s maternal great aunt reported that when J.D.S. lived with
her, and took her medications, her performance in school improved
and she was better behaved. J.D.S.'s great aunt also reported that
when J.D.S. lived with her mother, J.D.S. reported that she was
afraid of her mother and that she was also hit and spanked by her.
The great aunt reported seeing marks on J.D.S. consistent with such
abuse. The findings of fact also show that respondent did not
comply with the recommendations of mental health professionals
regarding medications and therapy, that respondent yelled at,
threatened, and demeaned J.D.S., and that as a result ofrespondent's conduct, there was “physical, mental or emotional
impairment of [J.D.S.], or a substantial risk of such impairment as
a consequence of the failure of [respondent] to provide proper care
and discipline.” The trial court properly relied on this prior
adjudication of neglect as evidence supporting its finding of
neglect in the termination proceeding. Brim, 139 N.C. App. at 742,
535 S.E.2d at 372. As a result of the adjudication of neglect,
respondent was ordered to complete ten steps to achieve
reunification with J.D.S., as listed above. The trial court found
that respondent failed in completing many of these tasks.
Specifically, the trial court found: 1) Though she completed
a psychological evaluation in October of 2001, respondent did not
engage in the individual counseling recommended in the year and a
half that followed; 2) she responded to the last request by Human
Services that she take a random drug test by stating: “Hold out
your hand and I'll pis[s] in it if you want a drug screen;” 3)
although she completed an eight week anger management course, she
was unable to integrate the principles of the class into her daily
life; 4) though she completed the parenting class, she did not
“demonstrate the positive change in parenting skills and behavior
that the facilitators would hope to see;” 5) she failed to maintain
stable housing, having lived in at least five different locations
between September 2001 and October 2002; 6) she failed to maintain
stable employment, holding at least nine different jobs and going
through periods of unemployment; 7) she failed to make the required
child support payments, except when payments were withheld from herpaycheck without her approval; 8) she thereafter failed to inform
Wake County Child Support Enforcement of her places of employment
(thereby preventing child support withholding); 9) though she
attended some sessions of joint therapy with J.D.S., she was told
by the therapist to cease attending and first pursue individual
therapy because she did not respond to J.D.S. in a “nurturing
manner when the child was obviously seeking affection and approval
from her;” 10) she failed to visit J.D.S. on a regular basis even
though Human Services attempted to work with her to set up a
schedule to accommodate her job schedule; 11) she was not prevented
from meeting the above requirements due to poverty, rather she
failed to change her “attitude and behaviors consistent with making
reunification with the child [her] first priority;” 12) finally,
respondent had the “ability to achieve reunification with J.D.S.,
but has failed to demonstrate substantial progress toward
correcting the conditions which caused the child to remain in
foster care for more [than] twenty months.”
The nature of respondent's neglect was improper care and
discipline of J.D.S. The respondent's acts of neglect were removed
from the time of hearing by nearly two years. The critical inquiry
for the trial court was the probability of repetition of neglect by
respondent and her fitness to care for the child at the time of the
hearing. The trial court's findings of fact reveal that respondent
was not interested in addressing the underlying problems which gave
rise to the original adjudication of neglect. The trial court's
findings do show that respondent completed some of the classes thatshe was required to attend. However, the trial court also found
that respondent refused to comply with recommendations that she
seek individual counseling until the eve of a hearing and that she
was unable to apply what she learned in the classes to her
relationship with J.D.S. Respondent's failure to address the
underlying causes of the original neglect clearly support the trial
court's conclusion that the neglect was likely to recur and that at
the time of the hearing “the parents will not promote the healthy
and orderly, physical and emotional well-being of the child.” See
In re Caldwell, 75 N.C. App. 299, 330 S.E.2d 513 (1985). This
assignment of error is without merit.
Because we find that the trial court did not err in
terminating respondent's parental rights under N.C. Gen. Stat. §
7B-1111(a)(3), “we need not discuss the remaining . . . grounds for
termination asserted by petitioner.” Baker, 158 N.C. App. at 497,
581 S.E.2d at 148 (quoting Brim, 139 N.C. App. at 743, 535 S.E.2d
at 373 (2000)).
AFFIRMED.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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