1. Termination of Parental Rights_inability to establish safe home_sufficiency of
evidence
There was clear, cogent, and convincing evidence in a termination of parental rights
proceeding to support the trial court's finding that respondents lacked the ability to establish a
safe home for the child.
2. Termination of Parental Rights _2002 evaluation_2003 proceeding
The trial court did not err in a 2003 termination of parental rights proceeding by relying
on a 2002 psychological evaluation in assessing the severity and chronic nature of respondents'
respective mental health conditions. Nor did the trial court err by concluding, based on
respondents' history, that they did not have the ability to provide a safe and appropriate home for
the minor child.
3. Termination of Parental Rights_mental and physical health problems_impaired
ability to care for child
A trial court may terminate a respondent's parental rights upon a finding of one or more
of the statutory grounds in N.C. Gen. Stat. § 7B-1111(a); assuming that evidence of a
probability of abuse or neglect was necessary in this case, the evidence of respondents'
respective mental and physical health problems and the strain these problems placed on their
ability to maintain a stable household as a couple constituted clear, cogent, and convincing
evidence of their impaired ability to care for a minor child and an accompanying substantial
probability of neglect if the minor child was placed in their household.
4. Termination of Parental Rights_progress of parents_considered_insufficient
Although respondents in a termination of parental rights case asserted that the trial court
erred by failing to consider their reasonable progress, the trial court's finding, read in its entirety,
indicates that the court considered respondents' progress but determined that it was insufficient.
Moreover, a clause in the findings indicating that there had been no significant change in
respondents' understanding of their problems and their ability to address those problems was
supported by the clear, cogent, and convincing evidence.
5. Termination of Parental Rights_child's adjustment to foster care_one factor in
termination
The trial court in a termination of parental rights case did not abuse its discretion by
considering the child's positive adjustment to foster care as one factor in determining that
termination was in the child's best interests.
CALABRIA, Judge.
A.B. (“respondent-mother”) and K.B. (“respondent-father”)
(collectively “respondents”) appeal an order of the Burke County
District Court terminating their parental rights to the minor
child, V.L.B. We affirm.
The evidence indicates the termination of parental rights
issues in this case arose after the Burke County Department of
Social Services (“DSS”) substantiated a report that respondent-
mother was living in a house without electricity and that the State
of Michigan had terminated respondents' parental rights to their
other children, principally due to abuse committed by respondent-
father and respondent-mother's unwillingness to remain separated
from him. Respondents moved from Michigan to North Carolina in
June 2002 on V.L.B's due date. V.L.B. was born approximately one
week later on 10 June 2002. She was the seventh child born to
respondent-mother and the fifth born to respondents. On 17 June
2002, seven days after birth, V.L.B. was released from the hospital
and immediately placed in the custody of DSS. Subsequently, V.L.B.
was placed in a foster-to-adopt home under the supervision of DSS.
On 15 August 2002, all parties consented to a dependency
adjudication based on the State of Michigan's prior terminations of
respondents' parental rights to their other children, respondents'psychological diagnoses, and respondents' lack of psychological
treatment. The trial court continued disposition until current
psychological evaluations could be completed.
The evidence indicates respondents received psychological
evaluations on 16 September 2002. Respondent-mother's
psychological evaluation revealed she had: (1) “a very high level
of anxiety and tension[,] . . . to [a] degree that her ability to
concentrate and attend [appeared] significantly compromised”; (2)
“difficulty with anger management”; (3)“low frustration tolerance
[and] poor impulse control”; (4) “many characteristics consistent
with persons who have been found substantiated for child abuse”;
and (5) “[a] significant likelihood of high levels of anxiety,
depression and loss of emotional and behavioral control.” The
evaluating psychologist's clinical impression was that she suffered
from an adjustment disorder with anxiety and a borderline
personality disorder. The psychologist concluded:
A review of DSS records, previous
psychological evaluations and current
circumstances do not provide a positive
prognosis for [respondent-mother's] . . .
ability to care for [V.L.B.] Many of the
circumstances that led to the termination of
parental rights of her children in Michigan
continue currently. [She] continues to have
chronic mental health problems, as well as
more acute anxiety problems. Although she
expressed interest in change, her personality
problems are not easily amenable to change.
Respondent-mother met with a counselor one time shortly after
giving birth to V.L.B. but sought no further help for her mental
health problems and testified that she did not need mental health
treatment.
Respondent-father's psychological evaluation revealed he had:
(1) “chronic mental illness, which [had] not adequately respondedto medication”; (2) symptoms of depression; (3) “speech processes
[that were] tangential and circumstantial . . . [and] difficulty
answering simple questions”; (4) poor concentration and a high
level of distractibility; (5) a history of intermittent psychiatric
and psychological treatment but had “not been able to follow
through with a long course of treatment”; (6) a brain injury from
a 1999 car accident that exacerbated his mental illness; and (7) a
September 2001 commitment to an inpatient psychological institution
for threatening to assault respondent-mother. The evaluating
psychologist's clinical impression was that he suffered from
psychosis not otherwise specified and personality disorder not
otherwise specified with Schizotypal features. Additionally, his
record from prior evaluations indicated bipolar disorder, but he
showed no significant signs of bipolar disorder in this evaluation.
The psychologist concluded:
Based on the previous evaluations and the
current information, it does not appear that
[respondent-father] has made any progress
[between] the time . . . [his] parental rights
[were] terminated [to the other children and
this evaluation]. It's unlikely that he would
be capable of constructively parenting an
infant at this time, and there are no
recommendations, given this finding.
Respondent-father's physical condition, as reported by his
physician, included a diagnosis of type II diabetes. It appears
respondent-father's physician considered his diabetes in
conjunction with his mental illness and memory problems and
recommended he receive “round-the-clock care.”
After reviewing the psychological evaluations, the trial court
entered an order ceasing reunification efforts and ordered adoption
as the permanent plan for V.L.B. On 27 March 2003 and again on 17July 2003, the trial court reviewed the permanent plan and entered
orders maintaining adoption as the permanent plan for V.L.B. On 22
September 2003, a termination hearing was held, and all parties
were present with representation, including respondent-mother's
guardian ad litem and respondent-father's guardian ad litem. At
this hearing, the trial court found the parental rights of
respondents with respect to their other children had been
terminated involuntarily by a court of competent jurisdiction, and
although both had the willingness, respondents lacked the ability
to establish a safe home for V.L.B. Therefore, the trial court
concluded sufficient grounds existed for termination of
respondents' parental rights under N.C. Gen. Stat. § 7B-1111(a)(9)
(2003). The trial court then determined the best interests of
V.L.B. would be served by terminating respondents' parental rights.
Respondents appeal.
A proceeding to terminate parental rights consists of two
stages: (1) the adjudicatory stage, under N.C. Gen. Stat. § 7B-1109
(2003), and (2) the dispositional stage, under N.C. Gen. Stat. §
7B-1110 (2003). In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166,
169 (2002). At the adjudicatory stage, “the petitioner must show
by 'clear, cogent and convincing evidence' the existence of one or
more of the [nine] statutory grounds for termination of parental
rights [enumerated in N.C. Gen. Stat. § 7B-1111 (2003)].” Id.
(quoting N.C. Gen. Stat. § 7B-1109(f)). Accordingly, in reviewing
this stage, we must determine “'whether the findings of fact are
supported by clear, cogent and convincing evidence and whether
these findings, in turn, support the conclusions of law.'” In re
Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004) (quoting Inre Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)).
“'Clear, cogent and convincing describes an evidentiary standard
stricter than a preponderance of the evidence, but less stringent
than proof beyond a reasonable doubt.' And it 'has been defined as
evidence which should fully convince [the finder of fact].'” In re
Nesbitt, 147 N.C. App. 349, 355, 555 S.E.2d 659, 664 (2001)
(quoting N.C. State Bar v. Harris, 137 N.C. App. 207, 218, 527
S.E.2d 728, 735 (2000)). If the trial court finds one or more of
the nine statutory grounds for termination, “it proceeds to the
dispositional stage, and must consider whether terminating parental
rights is in the best interests of the child.” In re Anderson, 151
N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). At the dispositional
stage, “the court shall issue an order terminating the parental
rights, unless it . . . determines that the best interests of the
child require otherwise.” In re Matherly, 149 N.C. App. 452, 454,
562 S.E.2d 15, 17 (2002). “We review the trial court's decision to
terminate parental rights for abuse of discretion.” Anderson, 151
N.C. App. at 98, 564 S.E.2d at 602.
Respondents assert the trial court erred at the adjudicatory
stage by concluding that grounds existed under N.C. Gen. Stat. §
7B-1111(a)(9) to terminate their parental rights. Under N.C. Gen.
Stat. § 7B-1111(a)(9), a trial court may terminate parental rights
when “[t]he parental rights of the parent with respect to another
child of the parent have been terminated involuntarily by a court
of competent jurisdiction and the parent lacks the ability or
willingness to establish a safe home.”
[1] Respondents do not dispute that their parental rights to
their other children were terminated by a court of competentjurisdiction. Rather, respondents argue the trial court's finding
that they lacked the ability to establish a safe home for V.L.B.
was not supported by clear, cogent, and convincing evidence. We
disagree. According to respondent-mother's psychological
evaluation, she suffered from “chronic mental health problems[,]”
specifically depression, high levels of anxiety and tension, a low
frustration tolerance, poor impulse control, and anger management
difficulties, all of which would significantly affect her ability
to concentrate and attend to the needs of V.L.B. Moreover, her
belief that she did not need mental health treatment and her
failure to pursue treatment compounded her problems. Furthermore,
at the time of the hearing, respondent-mother had been, and
intended to continue, personally caring for respondent-father, who,
as detailed above, suffered from “chronic mental illness[,]” memory
problems, and type II diabetes, which necessitated that he receive
“round-the-clock care” and greatly impaired his ability to care for
V.L.B. Accordingly, we hold, the following evidence constituted
clear, cogent, and convincing evidence supporting the trial court's
finding that respondents lacked the ability to establish a safe
home for V.L.B.: (1) the chronic nature of respondents' respective
mental health conditions; (2) the severity of respondent-father's
mental and physical health problems; (3) his need for a full-time
care provider; (4) respondent-mother's intention to continue
providing this care for him; and (5) the stress respondent-father's
mental and physical health problems caused respondents, as
evidenced by the daily arguments to which both admitted during
their respective psychological evaluations. [2] Nonetheless, respondents contend the psychological
evaluations performed in September 2002 could not have constituted
clear, cogent, and convincing evidence of their mental health on 22
September 2003, the date of the termination hearing, especially
because respondent-father appeared slightly more stable due to his
most recent therapy. However, the severity and chronic nature of
respondent-father's mental illness, as described in the
psychological evaluation, constituted clear, cogent, and convincing
evidence that respondent-father continued to have debilitating
mental health issues despite the fact he appeared somewhat more
stable on the date of the hearing. Additionally, although the
trial court also relied on a September 2002 psychological
evaluation for respondent-mother, the persistence of her
personality problems characterized in her psychological evaluation
as “not easily amenable to change[,]” together with her lack of
mental health treatment, constituted clear, cogent, and convincing
evidence that her mental health problems had not changed
significantly since the evaluation. Accordingly, the trial court
did not err by relying on their 2002 psychological evaluations in
assessing the severity and chronic nature of respondents'
respective mental health conditions. Nor did the trial court err
by concluding, based on respondents' history, that they did not
have the ability to provide a safe and appropriate home for the
minor child.
[3] Respondents next assert that absent clear, cogent, and
convincing evidence of a probability that past patterns of abuse or
neglect would recur, the trial court had insufficient grounds upon
which to terminate their parental rights. In essence, respondentscontend a finding of abuse or neglect under N.C. Gen. Stat. § 7B-
1111(a)(1) is a prerequisite to terminating parental rights based
on N.C. Gen. Stat. § 7B-1111(a)(9). As mentioned above, however,
a trial court may terminate a respondent's “parental rights upon
a finding of one or more of the [nine statutory grounds].” N.C.
Gen. Stat. § 7B-1111(a)(emphasis added). See In re Clark, 151 N.C.
App. 286, 288, 565 S.E.2d 245, 246 (2002) (stating “a finding of
any one of [the nine] grounds is sufficient to support the
termination of parental rights”). Moreover, assuming arguendo
evidence of a probability of abuse or neglect was necessary to
conclude grounds for termination existed under N.C. Gen. Stat. §
7B-1111(a)(9), the evidence of respondents' respective mental and
physical health problems and the strain these problems placed on
their ability to maintain a stable household living as a couple,
constituted clear, cogent, and convincing evidence of their
impaired ability to care for a minor child and an accompanying
substantial probability of neglect if the minor child was placed in
their household.
[4] Respondents further assert the trial court erred by
failing to consider their reasonable progress, and they assign
error to the independent clause in one of the trial court's
findings of fact, which states, “there has been no significant
change in [respondents'] understanding of the problems that led to
the removal of their previous children and their ability to address
those problems.” Contrary to respondents' assertion, when read in
its entirety, the trial court's finding indicates the trial court
considered respondents' progress but determined the progress was
insufficient. In full, the finding states, “Although they haveestablished a stable residence and it appears that they are
marginally getting by, there has been no significant change in
[respondents'] understanding of the problems that led to the
removal of their previous children and their ability to address
those problems.” Moreover, the finding's independent clause was
supported by the following clear, cogent, and convincing evidence:
(1) respondents denied respondent-father had abused the previous
children; (2) respondent-father believed the previous children were
removed simply because respondents were not “able to take care of
their immediate needs . . . [a]nd provide everything safe and
nurturing for them”; (3) respondent-mother had chosen her marriage
over the needs of her previous children as evidenced by her
decision to return to respondent-father rather than maintain
custody of the previous children; (4) respondent-mother was unable
to recognize her need for mental health treatment and failed to
pursue such treatment; and (5) the demands on respondents due to
respondent-father's chronic mental and physical health problems
remained substantial.
[5] Respondents finally assert the trial court abused its
discretion by basing the termination of their parental rights in
any part on V.L.B.'s positive adjustment to her foster home. This
Court has stated “a finding that [a] child[] [is] well settled in
[her] new family unit . . . does not alone support a finding that
it is in the best interest of the child[] to terminate [a]
respondent's parental rights.” Bost v. Van Nortwick, 117 N.C. App.
1, 8, 449 S.E.2d 911, 915 (1994) (emphasis added). However, the
trial court here did not base its decision that termination was in
the best interests of V.L.B. solely on her positive adjustment tofoster care. Rather, the trial court also based its decision on
findings that: (1) respondents each had chronic mental health
problems; (2) respondents' daily needs, in particular respondent-
father's mental and physical health problems, required all of their
“emotional, physical and financial resources”; (3) respondents made
“no significant change in their understanding of the problems that
led to the removal of their previous children”; and (4) there was
no significant change in their capacity to address the problems
that led to the removal of their previous children. Accordingly,
the trial court did not abuse its discretion by considering
V.L.B.'s positive adjustment to foster care as one factor in
determining that termination of respondents' parental rights was in
V.L.B.'s best interests. Furthermore, the trial court did not
abuse its discretion by concluding, based on the evidence and its
findings of fact, that terminating respondents' parental rights was
in the best interests of V.L.B.
We have carefully considered respondents' remaining arguments
and find them to be without merit. For the foregoing reasons, the
trial court's termination of respondents' parental rights is
affirmed.
Affirmed.
Judges ELMORE and STEELMAN concur.
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