An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-18
NORTH CAROLINA COURT OF APPEALS
Filed: 7 December 2004
IN THE MATTER OF:
F.M.L.W. Wake County
F.J.S. No. 02 J 625
Appeal by respondent from order entered 23 May 2003 by Judge
Michael R. Morgan in Wake County District Court. Heard in the
Court of Appeals 7 June 2004.
Corinne G. Russell and Anne W. Brill for petitioner-appellee
Wake County Human Services.
Patricia K. Gibbons for Guardian ad Litem-appellee.
Terry F. Rose for respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent appeals the trial court order terminating her
parental rights to her eight-year-old son, Frazier,
(See footnote 1)
and her six-
year-old son, Franklin.
(See footnote 2)
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 4 October 2002, Wake County Human
Services (petitioner) filed a petition (the petition)
requesting termination of respondent's parental rights to Frazier
and Franklin. The petition further requested that the parentalrights of the fathers of Frazier and Franklin be terminated as
well. The petition contained the following pertinent allegations:
12. That there are facts sufficient to
warrant a determination that grounds
exist for the termination of parental
rights, said grounds as follows:
. . . .
b. That [respondent] abused the
children within the meaning of
N.C.G.S. Section 7B-101(1):
physical abuse on [Franklin] was
adjudicated on June 6, 2001 as
evidenced by the attached order from
the hearing; [respondent] sexually
abused [Frazier] as disclosed by him
during a Child Mental Health
Evaluation by Dr. Teresa Poole in
December, 2001.
c. That [respondent] and fathers
neglected the children 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 children returned to
the care of the mother or father.
d. That [respondent] and fathers
willfully left the children 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 children.
Poverty is not the sole reason that
the parents are unable to care for
the children.
On 4 November 2002, respondent filed an answer denying the
allegations of the petition. The case proceeded to trial, and the
trial court conducted hearings and received evidence from the
parties on 27 February 2003 and 24 April 2003. On 24 April 2003,Frazier Sr.,
(See footnote 3)
Frazier's father, executed a relinquishment of all
parental rights to Frazier. Following the hearings, the trial
court concluded as a matter of law that respondent had abused
Frazier and Franklin as defined by N.C. Gen. Stat. § 7B-101(1) and
had neglected Frazier and Franklin as defined by N.C. Gen. Stat. §
7B-101(15). The trial court further concluded as a matter of law
that respondent had left the children in foster care for more than
twelve months, without showing to the satisfaction of the trial
court that reasonable progress had been made to correct the
conditions which led to the children's removal. After concluding
that it was in the best interests of Frazier and Franklin to do so,
the trial court issued an order terminating respondent's parental
rights to the children on 23 May 2003. It is from this order that
respondent appeals.
We note initially that respondent's brief contains arguments
supporting only sixteen of her original twenty-one assignments of
error. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the five
omitted assignments of error are deemed abandoned. Therefore, we
limit our present review to those assignments of error properly
preserved by respondent for appeal.
The issues on appeal are whether: (I) a new trial is required
due to an incomplete recordation of the trial court proceedings;
(II) the trial court erred by failing to hold a special hearing todetermine the issues raised by the petition to terminate parental
rights; (III) the trial court erred by concluding that sufficient
grounds exist to terminate respondent's parental rights; and (IV)
the trial court erred by taking judicial notice of an underlying
case file in the matter.
I.
Respondent first argues that she is entitled to a new trial
because the transcript of the termination hearing is incomplete.
We disagree.
This Court has previously held that [w]here a trial
transcript is 'entirely inaccurate and inadequate,' precluding
formulation of an adequate record and thus preventing appropriate
appellate review, a new trial may be granted. In re Lineberry,
154 N.C. App. 246, 257, 572 S.E.2d 229, 237 (2002) (quoting State
v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per
curium)), cert. denied, 356 N.C. 672, 577 S.E.2d 624 (2003). N.C.
Gen. Stat. § 7B-806 (2003) requires that all adjudicatory and
dispositional juvenile hearings be recorded by stenographic notes
or electrical or mechanical means. However, in In re Clark, 159
N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003), this Court concluded
that the [m]ere failure to comply with this statute standing
alone, is . . . not by itself grounds for new hearing. Instead,
in order to prevail on an assignment of error under section 7B-
806, [the appellant] must also demonstrate that the failure to
record the evidence resulted in prejudice to that party. Id.
In the instant case, respondent makes general allegationsregarding the trial court's findings of fact and asserts that it
is impossible for [her] to adequately perfect her appeal.
However, the use of general allegations is insufficient to show
reversible error resulting from the loss of specific portions of
testimony caused by gaps in recording. Id. (citing In re Peirce,
53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (no prejudice
shown where party failed to allege or show in the record the
contents of the lost testimony)). Where a verbatim transcript of
the proceedings is unavailable, there are 'means . . . available
for [a party] to compile a narration of the evidence, i.e.,
reconstructing the testimony with the assistance of those persons
present at the hearing.' Clark, 159 N.C. App. at 80, 582 S.E.2d
at 660 (quoting Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d
467, 469 (1988)); see N.C.R. App. P. 9(c) (2004) (providing for
narration of the evidence in the record on appeal and, if
necessary, settlement of the record by the trial court in the form
of narration of testimony).
In the instant case, respondent fails to demonstrate that she
attempted to reconstruct the missing testimony or made any effort
to engage the trial court and petitioner in narration. Although
respondent contends that petitioner made no effort to reconstruct
the missing testimony prior to appeal, we note that it is the
responsibility of the appellant, not the appellee, to ensure that
the record on appeal is complete and the transcript constituted in
accordance with Rule 9. Miller, 92 N.C. App. at 353, 374 S.E.2d at
468. Moreover, as in Clark, the trial court's extensive findingsof fact in the instant case indicate that the trial court
considered and evaluated all the evidence. Without the benefit of
a narration, respondent has failed to demonstrate that any
prejudice occurred as a result of the improper recordation.
Therefore, we overrule respondent's first argument.
II.
Respondent next argues that the trial court committed
reversible error by failing to hold a special hearing prior to
trial in order to determine the issues raised by the petition.
Although we note that respondent failed to object to the trial
court's alleged error prior to appeal, this Court has previously
held that, where the trial court acts in contravention of a statute
to the prejudice of a party, the right to appeal the trial court's
error is preserved notwithstanding the respondent's failure to
enter an objection. In re Taylor, 97 N.C. App. 57, 61, 387 S.E.2d
230, 232 (1990) (citing State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d
652, 659 (1985)). Thus, we will address the merits of respondent's
assignment of error.
Where a respondent denies in his or her answer any material
allegation contained within a petition to terminate the
respondent's parental rights, N.C. Gen. Stat. § 7B-1108(b) (2003)
requires the trial court to conduct a special hearing . . . to
determine the issues raised by the petition and answer[.] In the
instant case, there is no indication in the record that the trial
court conducted the special hearing required by N.C. Gen. Stat. §
7B-1108(b). However, because we conclude that there were no issuesthat needed to be resolved in a special hearing, we hold that the
trial court's failure to conduct the special hearing was not
prejudicial.
In Peirce, 53 N.C. App. at 383, 281 S.E.2d at 204, this Court
held that [t]he fact that the hearing was brief and held just
prior to the trial does not conflict with the statutory
requirements [of G.S. 7A-289.29(b) (now N.C. Gen. Stat. § 7B-
1108(b))]. We recognize that the requirements of N.C. Gen. Stat.
§ 7B-1108(b) are general, and, as we noted in Peirce, the statute
does not prescribe the exact form the special hearing is to take
except that it is to be used to determine the issues raised by the
pleadings. Id. at 382, 281 S.E.2d at 204. The clear purpose of
the special hearing is to establish which issues remain between the
parties after the petition and answer have been filed. Thus, where
a respondent agrees with or stipulates to one or more of the
allegations of a petition, the trial court may, in a special
hearing, dispose of those issues prior to trial and further
determine which issues remain for trial.
In the instant case, respondent's answer denied each of the
allegations of the petition, thereby indicating that each of the
issues presented in the petition were in dispute. Thus, there were
no issues remaining for the trial court to dispose of at a special
hearing, and therefore, we are not convinced the trial court's
failure to conduct a special hearing prejudiced respondent.
Accordingly, respondent's second argument is overruled.
III.
Several of respondent's next arguments concern findings of
fact and trial testimony related to the trial court's determination
that Frazier was sexually abused. As discussed above, the trial
court determined that sufficient grounds exist to terminate
respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1), which allows a trial court to terminate parental rights
upon a finding that a parent has abused or neglected a child within
the meaning of N.C. Gen. Stat. § 7B-101. Specifically, the trial
court concluded that respondent had inflicted serious physical
injury upon Franklin and had committed acts upon Frazier that
violated N.C. Gen. Stat. § 14-202.1, which prohibits indecent
liberties being taken with children. However, the trial court also
determined that sufficient grounds exist to terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
Specifically, the trial court concluded that respondent willfully
left Frazier and Franklin in foster care for more than twelve
months without showing to the trial court's satisfaction that
reasonable progress under the circumstances had been made in
correcting the conditions which led to the removal of the children.
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). If on appeal this Court determines that
one of the grounds found by the trial court exists, we need notconsider whether the trial court erred in its findings or
conclusions regarding other grounds for termination. See In re
Shepard, 162 N.C. App. 215, 225, 591 S.E.2d 1, 8 (2004) (concluding
that where the trial court properly terminated parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), we need not consider
any other ground of termination found by the trial court.). Thus,
in the instant case, because we conclude that the trial court did
not err in determining that sufficient grounds exist to terminate
respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(2), we need not address respondent's arguments regarding
termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
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 pursuant to one of the grounds listed in
N.C. Gen. Stat. § 7B-1111. 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).
In the instant case, as discussed above, the trial court
determined that sufficient grounds exist to terminate respondent'sparental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2003),
which authorizes termination upon a finding that
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
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.
Following the adjudicatory stage in the instant case, the
trial court made the following pertinent findings of fact:
25. That the circumstances which caused
[Franklin and Frazier] to be placed in
foster care were: on or around April 25,
2001, [respondent] beat [Franklin] and
EMS was called to address his injuries.
He had knots on the left and right sides
of his head, a split lip, a knot on his
forehead, a large bump on the back of his
head, and loop shaped cut marks under his
left eye. [Respondent] tried to cover up
these injuries with make-up.
26. That [respondent] admitted that she made
a mistake when she beat [Franklin].
27. That [respondent] has a history of
improper discipline. On or about
September 18, 2000, Wake County social
worker Susanne Canoutas went to the
daycare of [Frazier] and observed
him . . . to have marks on his back from
a belt or a strap. [Respondent]
acknowledged inflicting these marks with
a belt or strap, stating it was her right
to spank.
. . . .
34. That as a result of the injuries to
[Franklin] on April 25, 2001, Wake County
Human Services obtained non-secure
custody of [Franklin and Frazier].
35. That [respondent] informed Treatment
worker, Susanne Canoutas, that she had a
right to hit the children and did not
consider the manner in which she had left
marks on [Franklin] to be abuse.
. . . .
41. That as part of a plan to reunify with
her children, [respondent] was
ordered . . . to successfully complete
nurturing/parenting classes, demonstrate
and apply positive discipline
consistently, successfully complete anger
management classes, demonstrate self-
control in response to stressful
situations, submit to a Psychological
Evaluation and comply with all
recommendations, pay child support and
participate in supervised visitation with
her children.
. . . .
45. That [respondent] completed anger
management classes though Wake County
Human Services had concerns about her
failure to do any homework and her
attitude toward corporal punishment;
[respondent] indicated to both Joyce
Wall, social worker supervisor, and
Susanne Canoutas, Treatment social
worker, that corporal punishment was what
she needed to do and how she was
punished.
. . . .
48. That Maris[h]a Hart, psychotherapist with
Triangle Family Services, tried to work
with [respondent] to provide counseling,
seeing [respondent] on September 26, 2002
for first screening, seeing her for a
second screening on October 16, 2002 and
seeing her for an intake appointment on
October 24, 2002.
49. That Maris[h]a Hart made a treatment plan
for [respondent], with the goals of
addressing anger management and
frustration, discussing concerns
associated with Child Protective Servicesand addressing medication management with
Dr. Golding until [respondent] was stable
for [a] minimum period of at least six
months.
50. That Maris[h]a Hart was not successful in
achieving the goals of the treatment plan
with [respondent], in that [respondent]
vehemently denied abusing her son. While
she did say she hit her son, [respondent]
noted that the belt buckle snapped up.
51. That Ms. Hart had two therapy sessions
with [respondent] on October 30, 2002,
and November 19, 2002. [Respondent]
missed appointments on November 12 and
December 11, 2002.
52. That two therapy sessions did not involve
enough time for Ms. Hart to dig into
[respondent's] behaviors and what
happened in her life.
53. That prior to seeing Ms. Hart at Triangle
Family Services, [respondent] saw two
other therapists: she saw Annie Lang on
January 17, 2002, and on . . . January
22, 2002, and for an intake on February
7, 2002, at which time [respondent]
indicated she had no goals, that she
already dealt with goals. Her case was
closed on April 1, 2002, after further
unsuccessful attempts to contact her.
54. That [respondent] also saw Stan Yancey,
therapist at Triangle Family Services,
for a first screening on May 30, 2002, at
which [respondent] indicated she didn't
know why she needed to come. Her case
was closed as she indicated she had no
goals.
55. That Ms. Hart testified that if a client
has no goals, a treatment case cannot be
opened.
. . . .
110. That this Court finds that [respondent]
has made some strides in complying with
this Court's orders in that she has
finished parenting classes, angermanagement, is pretty current in her
child support, has stable housing and her
employment is heading in the right
direction, stabilizing though not stable.
111. That this Court must also find that
[respondent] has made little progress in
complying with the recommendation of the
Psychological Evaluation to engage in
therapy, and there has been little to no
fulfillment of therapy as recommended and
ordered for [respondent]. Therapy is
what is necessary for [respondent] to
learn to control triggers for impulsive
behavior.
. . . .
130. That therapy is necessary for
[respondent] to learn to control her
behavior and impulses; [respondent] has
not gone through therapy and has chosen
not to go through therapy.
Based upon these findings of fact, the trial court concluded that
respondent had willfully left Frazier and Franklin in foster care
for more than twelve months without demonstrating to the trial
court's satisfaction that she had made reasonable progress to
correct the conditions which led to the removal of Frazier and
Franklin. The trial court further concluded that poverty was not
the sole reason that respondent was unable to care for Frazier and
Franklin, and the trial court subsequently ordered that
respondent's parental rights to Frazier and Franklin be terminated.
We conclude that the trial court did not err in its determination.
Attached to the petition to terminate parental rights was the
trial court's previous order concluding that Franklin was an abused
juvenile and that Frazier and Franklin were neglected juveniles in
that respondent had inflicted serious injury upon Franklin and thatFrazier and Franklin did not receive proper discipline from
respondent. Susanne Canoutas (Canoutas), a senior practitioner
at Wake County Human Services, investigated Frazier and Franklin's
case and worked with respondent. At the termination hearing,
Canoutas described Franklin's 25 April 2001 injuries in detail and
identified pictures taken of Franklin on 25 April 2001 and
introduced into evidence. Canoutas further testified that [o]n
the incidents when we were called into [sic] investigate, the
mother did admit that she had hit the children and that it was her
right to hit the children, that that was -- and that she did not
consider that abuse. Joyce Wall (Wall) served as Canoutas'
supervisor, and although much of her testimony at the termination
hearing focused on allegations of sexual abuse by respondent, Wall
testified that after discussing discipline with respondent, she
felt like corporal punishment was what she needed to do and did say
that was what was -- how she was punished. When asked whether
respondent had been deficient in complying with court orders, Wall
referred to [t]he anger management piece, the classes have been
attended but the failure to do homework and the attitude that she
doesn't understand the impact of the abuse on the children. Wall
further testified that
The second thing, a deficit I would consider
it, would be the counseling and therapy. For
therapy to be beneficial, there needs to be
some indication that there's a problem.
[Respondent] doesn't think she has a problem.
The fact the children were in care almost a
year before she started any counseling, and
when we questioned her -- the children went in
care April 2001. She started counseling about
February of 2002. When we asked her aboutthat, she said she didn't think that we were
serious about the counseling.
Marisha Hart (Hart), a psychotherapist at Triangle Family
Services, testified that at an intake appointment on 7 February
2002, respondent indicated no goals. Hart read from the intake
report, which said that respondent stated she did not have any
goals as she already dealt with her difficulties through all the
classes she was required to take and has completed. After
reviewing the record in the instant case, including the foregoing
testimony, we conclude that sufficient evidence supports the trial
court's findings of fact regarding respondent's efforts subsequent
to the removal of her children.
Furthermore, we also conclude that the trial court's findings
of fact support its conclusion of law regarding termination. Under
N.C. Gen. Stat. § 7B-1111(a)(2), [w]illfulness means something
less than willful abandonment. . . . [and] does not require a
showing of fault by the parent. In re Oghenekevebe, 123 N.C. App.
434, 439, 473 S.E.2d 393, 398 (1996) (citations omitted). In
Oghenekevebe, this Court concluded that willfulness may be found
even where a parent has made an attempt to regain custody of a
child but has failed to exhibit reasonable progress or a positive
response toward the diligent efforts of DSS. Id. at 440, 473
S.E.2d at 398. In the instant case, respondent failed to follow
the directives of the trial court and Wake County Human Services,
both of which required that respondent engage in therapy and
psychological evaluations aimed at educating respondent regarding
proper disciplinary methods and controlling respondent's impulsivebehaviors. Although there was evidence that respondent had
satisfied some of the requirements imposed upon her, we note that
[e]xtremely limited progress is not reasonable progress under
N.C. Gen. Stat. § 7B-1111(a)(2). In re Nolen, 117 N.C. App. 693,
700, 453 S.E.2d 220, 224-25 (1995). In Nolen, this Court concluded
that [i]mplicit in the meaning of positive response is that not
only must positive efforts be made towards improving the situation,
but that these efforts are obtaining or have obtained positive
results. . . . Otherwise, a parent could forestall termination
proceedings indefinitely by making sporadic efforts for that
purpose. Id. at 693, 453 S.E.2d at 225 (citing In re Tate, 67
N.C. App. 89, 94, 312 S.E.2d 535, 539 (1984)). Thus, we conclude
that the trial court's findings of fact in the instant case support
its conclusion of law, and therefore we hold that the trial court
did not err in terminating respondent's parental rights pursuant to
N.C. Gen. Stat. § 7B-1111(a)(2).
IV.
Respondent's final argument is that the trial court erred by
taking judicial notice of the case file from a previous hearing in
this matter. Respondent asserts that the trial court abused its
authority by failing to limit its judicial notice to those
adjudicatory facts not subject to reasonable dispute. We disagree.
The transcript from the termination hearing reflects the
following pertinent exchange during the direct examination of Wall:
PETITIONER: Your Honor, we ask the Court to
take judicial notice of the
underlying file here, 2001-J-
253, specifically the orderscontained therein and the
(inaudible) reports.
TRIAL COURT: The Court takes judicial notice
of the existence of file 01-J-
253 and its contents.
Following this exchange, petitioner questioned Wall regarding the
parenting and anger management classes respondent was instructed to
complete. However, the record does not reflect that respondent
ever objected to the trial court's decision to take judicial notice
of the underlying file. N.C.R. App. P. 10(b)(1) (2004) provides
that
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
Accordingly, we conclude that respondent has waived her right to
assert this assignment of error on appeal, and thus we need not
address the merits of respondent's argument.
V.
In light of the foregoing conclusions, the trial court order
terminating respondent's parental rights is affirmed.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
Footnote: 1 For the purposes of this opinion, we will refer to the
minor child by the pseudonym Frazier.
Footnote: 2 For the purposes of this opinion, we will refer to the
minor child by the pseudonym Franklin.
Footnote: 3 For the purposes of this opinion, we will refer to
Frazier's father by the pseudonym Frazier Sr.
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