Appeal by respondent from order entered 7 July 2004 by Judge
Philip W. Allen in Alamance County District Court. Heard in the
Court of Appeals 17 August 2005.
Jamie L. Hamlett for petitioner-appellee.
Sophie W. Hosford for respondent-appellant.
GEER, Judge.
The respondent mother appeals the trial court's order
terminating her parental rights to her four minor children, L.O.K.,
T.L.W., T.L.W., and J.K.W.
(See footnote 1)
Respondent argues primarily that Rule
41(a)(1) of the Rules of Civil Procedure required that the trial
court dismiss the petition to terminate her parental rights because
the Alamance County Department of Social Services ("DSS") had
dismissed a prior petition after having rested its case. Because
we hold that this aspect of Rule 41(a)(1) does not apply in
proceedings to terminate parental rights and because respondent's
remaining assignments of error are without merit, we affirm.
____________________
Respondent did not specifically assign error to any of the
trial court's 109 findings of fact apart from a general statement
that the trial court's conclusions of law are not supported by
clear and convincing evidence. It is, however, well established
that a "broadside exception that the trial court's conclusion of
law is not supported by the evidence, does not present for review
the sufficiency of the evidence to support the entire body of the
findings of fact." In re Beasley, 147 N.C. App. 399, 405, 555
S.E.2d 643, 647 (2001). In the absence of a specific assignment of
error, a trial court's findings of fact are deemed to be supported
by competent evidence and are conclusive on appeal. Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where noexception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is
binding on appeal.").
In this case, the trial court's findings of fact in its order
terminating respondent's parental rights and the findings in prior
unchallenged orders establish the following facts. At the time of
the termination hearing, L.O.K. was 12 years old, T.W. was 10 years
old, T.L.W. was 8 years old, and J.K.W. was 6 years old. L.O.K.
had not seen respondent for at least three years prior to the
hearing, while the other three children had not seen respondent for
at least two years.
L.O.K. and T.W. were first taken into custody by DSS on 17
March 1995. On 18 May 1995, the trial court determined that L.O.K.
and T.W. were neglected children. The mother stipulated that (1)
L.O.K. had unexplained cigarette burns on his leg, (2) respondent's
husband had sliced L.O.K. on his neck and hand, (3) the husband
threatened L.O.K., (4) respondent violated a protection plan in
which she agreed not to leave her children alone with her husband,
and (5) respondent had failed to enforce a domestic violence
protective order. Subsequently, the court attempted a trial
placement with respondent: L.O.K. was returned to his mother's
home on 16 August 1996, while T.W. was returned on 20 December
1996. On 19 January 1997, however, both children were again
removed because respondent's husband was still living with the
family despite the domestic violence protection order prohibiting
respondent's husband from entering the home. T.L.W., who was approximately a year old, was also adjudicated
as neglected on 24 April 1997. On 23 October 1997, the trial court
entered an order directing DSS to cease efforts to reunify the
three children with their parents. At a subsequent permanency
planning hearing, however, the trial court determined that L.O.K.'s
father had received an active prison term, respondent had secured
a divorce from him and had not seen him in a year, and the threat
of danger from her inability to protect the children no longer
existed. The trial court, therefore, entered an order on 2
November 1998 requiring DSS to resume reunification efforts.
On 23 December 1998, L.O.K., T.W., and T.L.W. were again
placed with their mother. Respondent quit her job the next day,
with the result that she had four children (including another baby,
J.K.W.) in her home with no income. Respondent did not contact DSS
to request assistance or otherwise seek help with food stamps or
daycare. The children were removed on 8 January 1999 because
respondent was "in a distressed emotional state" and DSS was
concerned for the children's safety and welfare.
At a review hearing on 19 April 1999, the trial court ordered
weekend visitation between respondent and the children. Because of
conditions observed during the weekend visitation on 26 July 1999,
DSS obtained non-secure custody of the approximately year-old
J.K.W. "due to the environmental conditions of the home not being
safe for the four juveniles to remain at the residence."
On 8 November 1999, DSS attempted a trial placement of J.K.W.
with respondent. On 9 December 1999, respondent failed to pickJ.K.W. up from daycare and did not check on the welfare of J.K.W.
until 10:00 p.m. that evening. J.K.W. was placed back into foster
care. The following morning, respondent told the DSS social worker
that she could not bring herself to pick up her child from daycare,
that she could no longer care for J.K.W., and that she would sign
a voluntary relinquishment of parental rights to her four children.
She did not, however, ever follow through on the voluntary
relinquishment. J.K.W. was adjudicated to be a neglected child on
3 January 2000.
On 21 January 2000, respondent agreed to a visitation schedule
for J.K.W. On 11 February 2000, however, respondent was 30 minutes
late for her visit and was not truthful regarding her reason for
being late. On 21 February 2000, respondent also failed to appear
for a permanency planning hearing. The trial court, therefore,
entered an order ceasing reunification efforts. DSS filed a
petition for termination of parental rights on 24 August 2000.
In February 2001, when respondent became pregnant with her
fifth child, she moved to "Room at the Inn" in Greensboro, a home
for single and expectant mothers. At that time, DSS spoke to
respondent for the first time in several months and asked why she
had not kept in contact with DSS. When respondent indicated that
she did not think she needed to keep in touch, the DSS social
worker explained that it was necessary in order to indicate that
she was making an effort to regain her children and to allow DSS to
assist in providing services. While at "Room at the Inn,"
respondent progressed into "Partnership Village," a facility forintegrating homeless people into society and received training in
medical office technology at Guilford Technical Community College.
Respondent ultimately had a paying job at "Room at the Inn" and had
her own apartment, automobile, and the use of a cell phone.
From February 2001 until 16 June 2002, respondent maintained
"some contact" with the DSS social worker. A hearing on DSS'
petition to terminate respondent's parental rights was held on 26
February 2002, 27 February 2002, and 1 March 2002. After DSS
rested its case and while respondent was presenting her case, DSS
voluntarily dismissed the petition.
In July 2002, respondent left "Room at the Inn" for Cleveland,
Ohio. She did not, however, leave a forwarding address or
telephone number. After learning from others that respondent might
have moved to Ohio, DSS made numerous efforts to locate her,
including sending letters and copies of court orders to
respondent's relatives in Ohio. On 15 October 2002, DSS filed a
second petition for termination of parental rights.
DSS finally located respondent in January 2004 through Child
Support Parent Locator services. From January 2004 until the
termination hearing, respondent declined to make further contact
with DSS except for a telephone conversation on 1 April 2004. In
that telephone conversation, DSS reminded respondent that it was
okay for her to send the children cards and letters. While
respondent had on one occasion after January 2001 provided DSS with
cards for her children and she had delivered a second card for
L.O.K. in May 2002, she sent no cards or letters from July 2002through the date of the termination hearing. During that period,
respondent also failed to make contact with the children's foster
parents to inquire about the condition of the children; failed to
send the children any gifts; and failed to attend permanency
planning and review hearings of which she had knowledge.
In Ohio, respondent first lived with her sister. She obtained
employment at McDonald's for three months. After at least eight
months of unemployment, respondent then began working at Wal-Mart.
Although respondent testified that she had a car and childcare, she
provided no further details and DSS was unable to verify any of her
living and working arrangements.
Following hearings on 26-27 April 2004, 29 April 2004, 5 May
2004, 7 May 2004, and 2 June 2004, the trial court entered an order
on 7 July 2004 terminating respondent's parental rights to L.O.K.,
T.W., T.L.W., and J.K.W. The trial court denied respondent's
motions to dismiss (filed as to each child), in which she contended
that the second petition was barred by DSS' dismissal of the first
petition. The court determined that grounds for termination
existed as to each child, concluding (1) that respondent had
neglected each child and (2) that respondent had willfully left
each child in foster care for more than 12 months without showing
reasonable progress under the circumstances in correcting the
conditions that led to the removal of the children. Respondent
filed notice of appeal from that order on 12 July 2004.
I
[1] Respondent first argues that the trial court erred in
denying her motions to dismiss. Respondent contends that under
Rule 41(a)(1), DSS could not voluntarily dismiss without prejudice
the first petition for termination of parental rights since it had
already rested its case. According to respondent, DSS was
required, at that point, to obtain a court order declaring that the
dismissal was without prejudice and that DSS' failure to do so
barred the second petition.
See Pardue v. Darnell, 148 N.C. App.
152, 157, 557 S.E.2d 172, 176 (2001) (holding that when the
plaintiffs took a voluntary dismissal after resting their case and
without seeking a voluntary dismissal from the court under Rule
41(a)(2), it "was a voluntary dismissal with prejudice, barring
them from refiling suit against defendant"). We disagree.
The General Assembly has set out the judicial procedure to be
used in juvenile proceedings in Chapter 7B of the General Statutes.
See N.C. Gen. Stat. § 7B-100 (2003) ("This Subchapter shall be
interpreted and construed so as . . . (1) To provide procedures for
the hearing of juvenile cases."). This Court has previously held
that "[t]he Rules of Civil Procedure, while they are not to be
ignored, are not superimposed upon these hearings."
In re Allen,
58 N.C. App. 322, 329, 293 S.E.2d 607, 612 (1982). Instead, the
Rules of Civil Procedure apply only when they do not conflict with
the Juvenile Code and only to the extent that the Rules advance the
purposes of the legislature as expressed in the Juvenile Code.
Compare In re D.L., 166 N.C. App. 574, 577, 603 S.E.2d 376, 379
(2004) ("[w]here the relevant juvenile statute [was] silent," thecourt applied N.C.R. Civ. P. 5(a), regarding methods of service, to
termination proceedings),
with In re J.N.S, 165 N.C. App. 536, 539,
598 S.E.2d 649, 650-651 (2004) (summary judgment is "implicitly
prohibit[ed]" by the Juvenile Code because it conflicts with the
court's obligation to hear the evidence and make findings of fact
under N.C. Gen. Stat. § 7B-1109(e) (2003)),
and In re Tyner, 106
N.C. App. 480, 483, 417 S.E.2d 260, 261 (1992) (a default judgment
may not be entered against a parent because it would require
termination "even when the facts do not support termination and
thereby permit termination inconsistent with the best interests of
the child").
To hold that a dismissal of a petition for termination of
parental rights precludes a second petition, as defendant urges
here, would be "contrary to the procedural mandate set forth in our
juvenile code."
J.N.S. 165 N.C. App. at 539, 598 S.E.2d at 651.
N.C. Gen. Stat. § 7B-1109(e) requires that the trial court "take
evidence, find the facts, and . . . 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" in the best interests of the child. As this Court held
in
J.N.S. and
Tyner, such a conflict precludes application of a
rule of civil procedure.
Further, N.C. Gen. Stat. § 7B-201 (2003) provides: "When the
court obtains jurisdiction over a juvenile, jurisdiction shall
continue until terminated by order of the court or until the
juvenile reaches the age of 18 years or is otherwise emancipated,whichever occurs first."
See also In re Arends, 88 N.C. App. 550,
554, 364 S.E.2d 169, 171 (1988) ("'[O]nce jurisdiction of a court
attaches it exists for all time until the cause is fully and
completely determined.'" (quoting
Kinross-Wright v. Kinross-Wright,
248 N.C. 1, 11, 102 S.E.2d 469, 476 (1958))). Applying Rule 41 to
preclude subsequent petitions for termination cannot be reconciled
with this continuing jurisdiction.
Finally, our General Assembly has stressed in the Juvenile
Code that the "best interests of the juvenile are of paramount
consideration." N.C. Gen. Stat. § 7B-100(5).
See also In re
Pittman, 149 N.C. App. 756, 761, 561 S.E.2d 560, 564 ("[T]he common
thread running throughout the Juvenile Code, § 7B-100
et seq., is
that the court's primary concern must be the child's best
interest."),
appeal dismissed and disc. review denied, 356 N.C.
163, 568 S.E.2d 608-09 (2002),
cert. denied, 538 U.S. 982, 155 L.
Ed. 2d 673, 123 S. Ct. 1799 (2003). When it is not in the
juvenile's best interest to be returned home, the juvenile must "be
placed in a safe, permanent home within a reasonable amount of
time." N.C. Gen. Stat. § 7B-100(5).
See also N.C. Gen. Stat. §
7B-1100(1) (2003) (The General Assembly "recognize[s] the necessity
for any juvenile to have a permanent plan of care at the earliest
possible age.").
Allowing a voluntary dismissal of one petition to preclude the
filing of a second petition would be antithetical to a child's best
interests because it would result in no permanent plan of care for
the child. If termination of parental rights could be foreclosedby Rule 41, children who could not be returned to their parents
would be stranded indefinitely in the foster care system. Here,
the children have already spent much of their childhood in foster
care: at the time of the termination hearings, L.O.K. and T.W. had
been in foster care for nine years, T.L.W. for seven years, and
J.K.W. for five years. The children are entitled to a permanent
plan of care that cannot be foreclosed by Rule 41.
Accordingly, we hold that DSS was not barred from filing a
second petition to terminate parental rights after voluntarily
dismissing its first petition. The trial court properly denied
respondent's motions to dismiss.
II
[2] Respondent next argues that the trial court erred by
improperly admitting hearsay evidence from the children's foster
parents and a social worker regarding statements by the children
and their teachers. Even assuming
arguendo that this testimony
constituted inadmissible hearsay, respondent has failed to
demonstrate that the trial court's order must be reversed.
In a bench trial, "the rules of evidence are not so strictly
enforced as in a jury trial and it will be presumed that the judge
disregarded any incompetent evidence that may have been admitted
unless it affirmatively appears that he was influenced thereby."
Stanback v. Stanback, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696
(1976),
disc. review denied, 291 N.C. 712, 232 S.E.2d 205 (1977). "Where there is competent evidence to support the court's findings,
the admission of incompetent evidence is not prejudicial."
In re
McMillon, 143 N.C. App. 402, 411, 546 S.E.2d 169, 175,
disc. review
denied, 354 N.C. 218, 554 S.E.2d 341 (2001). Under this principle,
respondent bore the burden of showing that the trial court relied
on the incompetent evidence in making its findings.
In re Huff,
140 N.C. App. 288, 300, 536 S.E.2d 838, 846 (2000),
appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001).
Respondent has not met her burden. With respect to the
children's statements, respondent acknowledges that the trial judge
expressly stated that he was disregarding the children's statements
in reaching his decision, but she argues that "it is impossible to
completely do so" because it was "emotionally charged, prejudicial
evidence." This argument turns the applicable standard on its head
and asks this Court to presume that the trial judge did in fact
rely upon the children's statements despite his assurance
otherwise. Further, respondent makes no argument at all about
whether the trial court relied upon statements attributed to the
children's teachers. Because respondent has failed to rebut the
presumption that the trial court disregarded inadmissible evidence
in making its findings, we overrule this assignment of error.
III
[3] Respondent next assigns error to the trial court's
determination that respondent neglected the children and that she
willfully left the children in foster care for more than 12 monthswithout making reasonable progress to correct the conditions that
led to the children's removal from respondent's care. Although
respondent contends on appeal that the trial court's conclusions
are not supported by clear, cogent, and convincing evidence,
respondent's failure to specifically assign error to any of the
trial court's findings of fact precludes this Court from reviewing
that issue. The sole question properly before this Court is
whether the trial court's conclusions of law are supported by its
findings of fact.
In re Padgett, 156 N.C. App. 644, 649, 577
S.E.2d 337, 340 (2003).
The trial court first concluded that N.C. Gen. Stat. § 7B-
1111(a)(1) (2003) justified termination of respondent's parental
rights. Under N.C. Gen. Stat. § 7B-1111(a)(1), the court may
terminate parental rights upon a finding that "[t]he parent has
abused or neglected the juvenile." A child is considered neglected
"if the court finds the juvenile to be . . . a neglected juvenile
within the meaning of G.S. 7B-101." N.C. Gen. Stat. § 7B-
1111(a)(1). N.C. Gen. Stat. § 7B-101(15) (2003) in turn defines a
neglected child as "[a] juvenile who does not receive proper care,
supervision, or discipline from the juvenile's parent, . . .; 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 deciding whether a child is neglected for purposes of
terminating parental rights, the dispositive question is thefitness of the parent to care for the child "at the time of the
termination proceeding."
In re Ballard, 311 N.C. 708, 715, 319
S.E.2d 227, 232 (1984) (emphasis omitted). "[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."
Id. at 713-14, 319 S.E.2d at 231. Termination
may not, however, be based solely on past conditions that no longer
exist.
In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997).
Nevertheless, when, as here, a child has not been in the custody of
the parent for a significant period of time prior to the
termination hearing, "requiring the petitioner in such
circumstances to show that the child is currently neglected by the
parent would make termination of parental rights impossible."
In
re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). In
those circumstances, a trial court may find that grounds for
termination exist upon a showing of a "history of neglect by the
parent and the probability of a repetition of neglect."
Id.
In this case, the trial court found that each of the children
had previously been adjudicated to be neglected and that there is
a probability of repetition of neglect if the children are returned
to respondent's custody. The court specifically based that
determination on the facts that, subsequent to the initial
adjudication of neglect, (1) four, if not five, trial placements
had failed; (2) respondent had a history of failing to show a
positive response to counseling and educational programs; (3)
respondent left a stable job and housing in Greensboro for Ohiowhere she did not have employment or independent housing; (4)
respondent had offered uncertain evidence of stability in her
working and living arrangements in Ohio; (5) respondent had to date
been unable to cope with the pressure of caring for more than one
child at a time and, if custody were restored to her, she would now
have five children; and (6) respondent did not seek outside
assistance when she needed it.
These findings are sufficient to establish neglect under N.C.
Gen. Stat. § 7B-1111(a)(1).
See In re Leftwich, 135 N.C. App. 67,
72, 518 S.E.2d 799, 803 (1999) (trial court could properly find a
probability of future neglect when respondent mother had not made
meaningful progress in improving her lifestyle);
In re Davis, 116
N.C. App. 409, 414, 448 S.E.2d 303, 306 (the parents' failure to
"obtain[] continued counseling, a stable home, stable employment,
and [attend] parenting classes" was sufficient to show a
probability that neglect would be repeated if the child were
returned to the care of the parents),
disc. review denied, 338 N.C.
516, 452 S.E.2d 808 (1994);
In re Johnson, 70 N.C. App. 383, 389,
320 S.E.2d 301, 305-06 (1984) (improper care during a trial
placement, a failure to make lifestyle changes, and sporadic
attendance at counseling sessions constituted evidence of neglect).
Further, the trial court's conclusion that grounds existed for
termination under N.C. Gen. Stat. § 7B-1111(a)(1) is also supported
by the court's findings establishing that respondent failed to
maintain contact with her children for extended periods of time.
See In re Graham, 63 N.C. App. 146, 151, 303 S.E.2d 624, 627(holding that the respondent's lack of involvement with his
children for a period of more than two years established a pattern
of abandonment and neglect; "[o]ne communication in a two year
period does not evidence the personal contact, love, and affection
that inheres in the parental relationship" (internal quotation
marks omitted)),
disc. review denied, 309 N.C. 320, 307 S.E.2d 170
(1983);
In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813
(1982) ("Neglect may be manifested in ways less tangible than
failure to provide physical necessities. . . . [T]he trial judge
may consider . . . a parent's complete failure to provide the
personal contact, love, and affection that inheres in the parental
relationship.").
Under N.C. Gen. Stat. § 7B-1111(a), the trial court need only
find that one statutory ground for termination exists in order to
proceed to the dispositional phase and decide if termination is in
the child's best interests.
Shermer, 156 N.C. App. at 285, 576
S.E.2d at 407. Since we have concluded that the trial court
properly concluded that the ground of neglect existed, we need not
review the other ground relied upon by the trial court.
In re
B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004)
("Having concluded that at least one ground for termination of
parental rights existed, we need not address the additional ground
of neglect found by the trial court.").
IV
[4] Respondent's final argument on appeal is that the poor
audio recording of the termination hearing resulted in aninadequate transcript for purposes of appeal. All juvenile
adjudicatory and dispositional hearings must be "recorded by
stenographic notes or by electronic or mechanical means." N.C.
Gen. Stat. § 7B-806 (2003). "Mere failure to comply with this
statute standing alone is, however, not by itself grounds for a new
hearing."
In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660
(2003). A party must also demonstrate that the failure to record
the evidence resulted in prejudice to that party.
Id.
General allegations of prejudice are insufficient to show
reversible error resulting from gaps in the recording.
Id. As
this Court stated in
Clark, "[w]here 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.'"
Id. (quoting
Miller v. Miller, 92 N.C. App. 351, 354,
374 S.E.2d 467, 469 (1988)). Any disputes among the parties
regarding the content of testimony, objections, or rulings can be
resolved by the trial judge in settling the record on appeal.
Id.;
see also N.C.R. App. P. 9(c)(1) (providing for narration of the
evidence in the record on appeal and, if necessary, settlement of
the record by the trial court).
In this case, respondent alleges only that "it is unclear
whether some of the objections or trial court's rulings might have
been omitted from the recording and from the transcript" and that
the poor recording "has raised substantial questions about what
might not have [been] recorded, including evidentiary objections
and court rulings." The record contains no indication that
respondent made any attempt to reconstruct the missing materialunder N.C.R. App. P. 9(c) or that she was in any way unable to do
so. Without such a showing, respondent has failed to demonstrate
prejudice from the flawed recording.
Clark, 159 N.C. App. at 83,
582 S.E.2d at 662;
Miller, 92 N.C. App. at 354, 374 S.E.2d at 469
(appeal dismissed when party alleged failure to record proceedings,
but the party failed to attempt to reconstruct the proceedings
through a narration of the evidence);
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 describe the contents of the lost
testimony).
Affirmed.
Judges CALABRIA and ELMORE concur.
Footnote: 1
