Appeal by respondent from judgment entered 12 June 2003 by
Judge Shirley H. Brown in Buncombe County District Court. Heard in
the Court of Appeals 24 August 2004.
John C. Adams for petitioner-appellee Buncombe County
Department of Social Services.
Judy N. Rudolph for Guardian Ad Litem-appellee.
Charlotte Gail Blake for respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent appeals the trial court order terminating her
parental rights to her three-year-old son, Ronald.
(See footnote 1)
For the
reasons discussed herein, we affirm the trial court order.
The facts and procedural history pertinent to the instant
appeal are as follows: On 6 January 2003, Buncombe County
Department of Social Services (“petitioner”) filed a petition (“the
petition”) requesting that the trial court terminate the parental
rights of respondent and her husband, Mark.
(See footnote 2)
The petition asserted
that sufficient grounds existed to terminate respondent's parentalrights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (2). In
support of this assertion, the petition alleged that respondent had
neglected Ronald and had willfully left Ronald in foster care for
more than twelve months without showing any reasonable progress in
correcting the conditions which led to Ronald's removal.
On 24 February 2003, respondent filed an answer denying the
allegations of the petition. The case proceeded to trial, and on
12 June 2003, the trial court terminated respondent's parental
rights, concluding in pertinent part:
3. That pursuant to N.C.G.S. §7B-1111[(a)](1)
[respondent] and [Mark] neglected [Ronald]
when [Ronald] was placed in the custody of the
Buncombe County Department of Social Services
on November 15, 2001, and continue to neglect
[Ronald] in that the Respondent Parents have
not complied with previous court orders and
have continued to engage in domestic violence;
they have failed to provide the personal
contact, love, and affection that inheres in
the parental relationship; and, they have
failed to provide a stable living environment
and proper food for [Ronald]. There is a
reasonable probability of continuing neglect
from the Respondent Parents.
4. That pursuant to N.C.G.S. §7B-1111[(a)](2)
[respondent] and [Mark] have willfully left
[Ronald] in foster care for more than twelve
(12) months without showing any reasonable
progress under the circumstances within the
twelve (12) months to correct the conditions
which led to the removal of [Ronald]. That
[Ronald] has been in the continuous custody of
the Buncombe County Department of Social
Services since November 15, 2001, and in
foster care.
5. That it is in the best interest of
[Ronald] that the parental rights of
[respondent] and [Mark] to [Ronald] be
terminated and [Ronald] be released for
adoption.
It is from this order that respondent appeals.
The issues on appeal are whether: (I) the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence; (II) the trial court erred in concluding that sufficient
grounds exist to terminate respondent's parental rights; and (III)
the trial court abused its discretion in determining that it was in
Ronald's best interest to terminate respondent's parental rights.
Respondent first argues that the trial court's findings of
fact were not supported by clear, cogent, and convincing evidence.
Respondent asserts that the trial court erred in making its
findings because the findings merely recite witness testimony and
fail to resolve conflicts in the evidence. We disagree.
Termination of parental rights involves a two-stage process.
In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d 165, 166 (2002).
At the adjudicatory stage, the petitioner must establish by clear,
cogent, and convincing evidence that sufficient grounds exist to
terminate parental rights.
In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997). On appeal, this Court reviews the trial
court's findings of fact to determine whether the findings are
supported by clear, cogent, and convincing evidence and whether the
findings support the trial court's conclusions of law.
In re Huff,
140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000),
appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001).
While “there is no specific statutory criteria which must bestated in the findings of fact or conclusions of law, the trial
court's findings must consist of more than a recitation of the
allegations.”
In re O.W., ___ N.C. App. ___, ___, 596 S.E.2d 851,
853 (2004) (citing
In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d
599, 602 (2002)). This Court has previously stated that in a
non-jury trial, the trial court must “consider and weigh all of the
competent evidence, and [] determine the credibility of the
witnesses and the weight to be given their testimony.”
In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). In
Gleisner, we remanded the trial court's decision to terminate the
respondent's parental rights after concluding that the trial
court's findings were “simply a recitation of the evidence
presented at trial, rather than ultimate findings of fact.”
Id.
Recognizing that it is the trial court's responsibility to
determine “what pertinent facts are actually established by the
evidence” and noting that we were unable to conduct a proper review
of the trial court's decision, we remanded the case to the trial
court with instructions to make ultimate findings of fact based
upon the evidence.
Id. at 480, 539 S.E.2d at 366. The decision
was consistent with N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2003),
which requires:
In all actions tried upon the facts without a
jury or with an advisory jury, the court shall
find the facts specially and state separately
its conclusions of law thereon and direct the
entry of the appropriate judgment.
In the instant case, in support of its conclusion that
respondent had neglected Ronald, the trial court made the followingpertinent findings of fact:
14. That [respondent] . . . neglected
[Ronald] when [Ronald] was placed in the
custody of the Buncombe County Department of
Social Services on November 15, 2001, to wit:
. . . .
16. [Ronald] had a history of poor weight
gain, a diagnosis of reflux, and had undergone
surgery for pyloric stenosis at four weeks of
age.
. . . .
19. That the Buncombe County Department of
Social Services received a second Child
Protective Services complaint on November 6,
2001. This report alleged that [respondent
and Mark] had gotten into a fight and
[respondent] pushed [Mark] through a glass
window. It was alleged that the glass
shattered close to [Ronald] and that [Ronald]
was thrown on the couch by [respondent]. This
report was investigated by the Buncombe County
Department of Social Services on[-]call
worker. [Respondent] was arrested and
[Ronald] was left in the care of the maternal
grandparents[.]
20. That on or about November 6, 2001, the
Buncombe County Department of Social Services
learned that [Ronald] continued to have poor
weight gain, that [respondent] had apparently
not been mixing the formula correctly and that
[respondent and Mark] had not kept [Ronald's]
appointment with the pediatric surgeon for a
recheck following the surgery for pyloric
stenosis.
21. That on November 6, 2001, a staffing
meeting was held at the Buncombe County
Department of Social Services and both parents
were present. [Respondent] admitted pushing
[Mark] through a glass window near [Ronald].
She denied throwing [Ronald] on the couch.
She stated that she had not been taken [sic]
her medication as prescribed. She also
admitted to not mixing [Ronald's] formula
correctly but stated she did this because she
was afraid she was going to run out offormula, although she could have obtained more
formula from WIC or from the pregnancy support
center.
. . . .
26. That on December 18, 2001, [respondent
and Mark] got into a physical altercation
while driving and hit a car in the Buncombe
County Department of Social Services parking
lot. [Mark] entered the Buncombe County
Department of Social Services on that date and
stated that he wanted to relinquish his
parental rights to [Ronald]. He had a scratch
on his neck and stated that [respondent] had
scratched him and that he had taken the keys
out of the ignition while she was driving.
. . . .
33. That [respondent] reported on April 28,
2002, that [Mark] had attempted to smother her
with a pillow. On May 8, 2002 [Mark] reported
that [respondent] threatened to go to the
police to accuse him of abusing her and
threatening to kidnap [Ronald] from the foster
home. On or about this same date, [Mark] was
observed pushing [respondent] in the parking
lot of the Buncombe County Department of
Social Services. Following this incident
[respondent and Mark] again separated[.]
34. That on or about July 9, 2002,
[respondent] filed charges against [Mark] for
an episode of domestic violence. [Respondent]
stated that she and [Mark] had argued on July
7, 2002 and he had bit her on the arm and hit
her on the arm with a Play Station. She filed
a restraining order against him and was
observed by a social worker and the Court to
have a small mark on her forearm and two small
bruises on her upper arm. [Mark] stated that
[respondent] had hit him and that his mouth
was swollen, cut, and had marks around it.
. . . .
36. That on July 18, 2002 a hearing was held
regarding the restraining order obtained by
[respondent] against [Mark] on July 9, 2002.
As a result of this hearing the Court ordered
no contact between [respondent and Mark]. Later on this date, [respondent] went to
[Mark's] place of employment and tried to get
money from him. She went to his place of
employment again the following day and
threatened to kill [Mark]. This statement was
made in front of [Mark's] employer who pressed
charges against [respondent] for delivering a
threat.
37. That [respondent] has continued to claim
that [Mark] has called and harassed her since
their last separation and subsequent
restraining order and that she has made tapes
of these phone calls. [Mark's father] stated
that he has tapes of [respondent] calling
[Mark].
38. That [respondent] has been unable to
maintain employment and subsequently lost her
apartment. She is now living with her male
friend . . . and stated that he pays her phone
and cable bills.
. . . .
54. That the Court finds that [Ronald] [has
been] in the custody of the Buncombe County
Department of Social Services since November
13, 2001 and [has] remained continuously in
the care and control of the Buncombe County
Department of Social Services since then due
to domestic violence and feeding issues. That
neglect due to domestic [violence] and feeding
issues was found on January 9, 2002 at a
dispositional hearing. . . . The incidents of
domestic violence between the parents [have]
continued since [Ronald] [has been] in custody
of the Department. That the most serious
incident occurred when [respondent] pushed
[Mark] through a glass door in the presence of
[Ronald], who was 4-5 feet away. That another
incident occurred as [Mark] pulled the key
from the ignition and the car wrecked in the
Buncombe County Department of Social Services
parking lot. That [respondent] was scratching
[Mark] about his face and neck. . . . Another
incident occurred when [respondent] went to
[Mark's] work place asking for money and
threatened to shoot him.
After reviewing the testimony at the termination hearings aswell as the entire record, including the trial court's order and
those findings detailed above, we conclude that while some of the
trial court's findings of fact do little more than relate the
contentions of each side, as a whole the findings are more than a
mere recitation of allegations as in
Gleisner. The findings are
not so “vague” and “inaccurate” that they impede our ability to
determine whether the trial court's conclusion was supported by
competent evidence.
Gleisner, 141 N.C. App. at 481, 539 S.E.2d at
366. Furthermore, we also conclude that the trial court's findings
sufficiently resolve conflicts in the evidence. The fifty-five
detailed findings of fact are based upon trial testimony provided
by respondent, Mark, members of their family, and seven social
workers assigned to the case. It is apparent from the findings of
fact that, through “'processes of logical reasoning'” based on the
evidentiary facts before it, the trial court found “the ultimate
facts essential to support the conclusions of law.”
In re Harton,
156 N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citation
omitted). “The pages of testimony supply ample and competent
evidence to support the trial court's findings of neglect, and they
are binding upon us on appeal, even though there may be evidence
contra.”
In re Montgomery, 311 N.C. 101, 112-13, 316 S.E.2d 246,
254 (1984). Furthermore, the trial court's findings of fact are
“sufficiently specific” to allow this Court to “review the decision
and test the correctness of the judgment.”
Quick v. Quick, 305 N.C.
446, 451, 290 S.E.2d 653, 657 (1982). Therefore, we conclude that
the trial court's findings of fact meet the requirements of Rule 52and are sufficiently supported by clear, cogent, and convincing
evidence. Accordingly, respondent's first argument is overruled.
Respondent next argues that the trial court erred in
concluding that sufficient grounds exist to terminate respondent's
parental rights. Respondent asserts that the trial court's
conclusion was not adequately supported by its findings of fact.
We disagree.
In a termination of parental rights proceeding, a
determination that any one of those grounds listed in N.C. Gen.
Stat. § 7B-1111 exists is sufficient to support termination of
parental rights.
In re Williamson, 91 N.C. App. 668, 678, 373
S.E.2d 317, 322-23 (1988). In the instant case, the trial court
determined that sufficient grounds exist to terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and
(2).
N.C. Gen. Stat. § 7B-1111(a)(1) authorizes the trial court to
terminate a respondent's parental rights upon finding that the
respondent “has abused or neglected the juvenile.” N.C. Gen. Stat.
§ 7B-101(15) (2003) defines a “neglected juvenile” as follows:
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.
“In determining whether a child is neglected, the
determinative factors are the circumstances and conditionssurrounding the child, not the fault or culpability of the parent.”
Montgomery, 311 N.C. at 109, 316 S.E.2d at 252. However, because
“[n]eglect may be manifested in ways less tangible than failure to
provide physical necessities[,] . . . the trial judge may consider
. . . a parent's complete failure to provide the personal contact,
love, and affection that inheres in the parental relationship.”
In
re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982).
Thus,
“the fact that the parent loves or is concerned about [the] child
will not necessarily prevent the court from making a determination
that the child is neglected.”
Montgomery, 311 N.C. at 109, 316
S.E.2d at 252.
In the instant case, the trial court concluded that respondent
had neglected Ronald as follows: (i) respondent failed to comply
with previous court orders and continued to engage in domestic
violence; (ii) respondent failed to provide the personal contact,
love, and affection that inheres in the parental relationship; and
(iii) respondent failed to provide a stable living environment and
proper food for Ronald.
As detailed above, the trial court's findings of fact discuss
respondent's history of involvement in violent domestic disputes,
both as a victim and as a perpetrator. The findings of fact also
discuss respondent's admitted inability to provide the proper food
and personal care for Ronald, who suffers from pyloric stenosis and
significant delays in physical and cognitive development. Several
of the findings of fact detail a physical fight between respondent
and Mark during which Ronald was thrown onto a couch and Mark wasthrown through a glass door four feet away from Ronald. We
conclude that these findings of fact are sufficient to support a
determination that respondent was living “in an environment
injurious to [his] welfare,” and was thus a “neglected juvenile” as
defined by N.C. Gen. Stat. § 7B-101(15).
Respondent maintains that “[b]ecause [Ronald] was removed from
his mother in November 2001, and adjudicated neglected in January
2002, there was no current neglect by [respondent].” We note that
“termination of parental rights may not be based solely upon a
prior adjudication of neglect.”
In re Reyes, 136 N.C. App. 812,
814, 526 S.E.2d 499, 501 (2000). However, even “[i]f there is no
evidence of neglect at the time of the termination
proceeding, . . . parental rights may nonetheless be terminated if
there is a showing of a past adjudication of neglect and the trial
court finds by clear and convincing evidence a probability of
repetition of neglect if the juvenile were returned to her
parents.”
Id. at 815, 526 S.E.2d at 501.
In the instant case, the trial court determined in its third
conclusion of law that “[t]here is a reasonable probability of
continuing neglect from [respondent and Mark].” This determination
is supported by the trial court's previous finding that respondent
“has not complied with previous orders of the Court in that she has
not obtained stable housing or employment, continued to engage in
domestic violence with [Mark], and did not comply with the previous
orders of this Court to follow the recommendations of her
psychological evaluation by obtaining individual and DBT therapy.” Therefore, we hold that the trial court did not err in concluding
that sufficient grounds existed to terminate respondent's parental
rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). Having so
concluded, we need not address respondent's argument regarding
termination of her parental rights pursuant to N.C. Gen. Stat. §
7B-1111(a)(2).
See Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501.
Respondent's final argument is that the trial court erred in
determining that it was in Ronald's best interest to terminate her
parental rights. Respondent asserts that the trial court abused
its discretion in making its determination. We disagree.
Once the trial court determines that any one of the conditions
authorizing termination of parental rights exists, the trial court
is required to issue an order terminating parental rights unless
“the court shall further determine that the best interests of the
juvenile require that . . . parental rights . . . not be
terminated.” N.C. Gen. Stat. § 7B-1110(b) (2003). “The trial
court's decision to terminate parental rights, if based upon a
finding of one or more of the statutory grounds supported by
evidence in the record, is reviewed on an abuse of discretion
standard.”
In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169,
174,
disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).
“Evidence heard or introduced throughout the adjudicatory stage, as
well as any additional evidence, may be considered by the court
during the dispositional stage.”
In re Blackburn, 142 N.C. App.
607, 613, 543 S.E.2d 906, 910 (2001). “It is . . . within the
court's discretion to consider such factors as family integrity inmaking its decision of whether termination is in the best interests
of the child[].”
In re Smith, 56 N.C. App. 142, 150, 287 S.E.2d
440, 445,
cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982).
However, “the child[]'s best interests are paramount, not the
rights of the parent.”
Id.
In the instant case, after hearing evidence from both parties,
the trial court determined that it was in Ronald's best interest to
terminate respondent's parental rights. In light of the evidence
presented to the trial court and discussed above, we are unable to
conclude that the trial court's determination is arbitrary or
manifestly unsupported by reason. Therefore, we hold that the
trial court did not abuse its discretion in terminating
respondent's parental rights.
Affirmed.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
Footnote: 1