IN RE: B.A.A. and P.J.A.
Randolph County
Nos. 02 J 85
02 J 86
Robert T. Newman, Sr., for Randolph County Department of
Social Services, petitioner-appellee.
Mercedes O. Chut, for respondent-appellant.
HUDSON, Judge.
Respondent mother appeals the trial court's order terminating
parental rights of her minor children, B.A.A. and P.J.A. For the
reasons set forth below, we affirm the decision of the trial court.
In February of 2000, the Randolph County Department of Social
Services (DSS) received a referral in reference to B.A.A., a two-
month-old with fourteen or fifteen broken bones in his arm. When
Respondent initially took B.A.A. to the hospital, she said that his
injury occurred when she held him up with a tight grip and tried to
pull a sleeve off of his arm. DSS interviewed Respondent in the
company of an adult male whom she identified as her cousin. DSS
formulated a protection plan which allowed Respondent's “cousin” to
supervise contact between B.A.A. and Respondent. DSS subsequently
discovered that Respondent's “cousin” was actually Respondent'shusband and B.A.A.'s father, who was ultimately arrested and
charged with two counts of felony child abuse for B.A.A.'s
injuries. Respondent later told DSS that she falsely portrayed him
as her cousin because he told her that he had broken B.A.A.'s arm
by accident. P.J.A., B.A.A.'s older sibling, resided in the same
house with her parents and B.A.A. at the time of B.A.A.'s abuse.
On 26 February 2000, DSS filed a petition alleging B.A.A. to
be an abused, neglected, and dependent juvenile, and P.J.A. to be
a neglected dependent juvenile. The court granted DSS non-secure
custody of the children and they were both placed in foster care.
On 17 August 2000, the trial court adjudicated the children as
abused and neglected juveniles and ordered that they remain in the
legal custody of DSS. The court relieved DSS of reunification
efforts by order on 14 September 2001. DSS filed a petition for
termination of parental rights (TPR) on 4 April 2002. The court
commenced a TPR hearing on 8 August 2002 and took testimony on
several additional dates through 28 January 2003. The children's
father did not appear at the TPR hearing or contest termination of
his parental rights.
At the TPR hearing, the court heard testimony from many
witnesses. DSS workers testified that although they believed
Respondent loves her children, she did not comply with court orders
and they witnessed inappropriate conduct by Respondent on several
occasions. The evidence tends to show that in spite of court
orders to the contrary, Respondent did not supply documents
regarding any disability she might have, did not maintain stablehousing, did not maintain employment, and interrupted her mental
health treatment and medication. DSS workers witnessed
Respondent's inappropriate conduct, including bringing intoxicated
friends to a visit with the children, threatening DSS workers and
the foster parents with violence, yelling and belligerent behavior,
criticizing the foster parents in front of the children, yelling at
and criticizing the children, and coming to visit her children high
on pain pills. Also, although Respondent attended most visits with
her children, she missed six out of the last seven visits prior to
the TPR hearing without explanation. DSS workers also expressed
concern that Respondent did not appropriately distance herself from
her husband, refusing to believe that he had hurt B.A.A. At the
time of trial, Respondent had divorced her husband and she
testified that she no longer had contact with him.
Regarding Respondent's mental health, two psychologists and a
psychiatrist testified. The evidence shows that Respondent was
diagnosed with borderline personality disorder and depressive
disorder. Dr. Sheaffer, a psychologist who evaluated Respondent
and diagnosed her with borderline personality disorder testified
that Respondent:
was marginal in her functional capacity, that
she would appear to have difficulties in
maintaining herself in day to day functioning,
that given the demands of two young children,
I had grave concerns about her capacity to
parent effectively and to appropriately meet
the children's needs . . . my concern was
added to by [her] ambivalence regarding the
apparent physical abuse that caused [B.A.A.'s]
injuries. . . [she] appeared to cling to the
possibility that the other injuries . . . were
somehow related to a very rare bone disorder.
Dr. Sheaffer did not conclude that Respondent could not parent but
opined that she would likely require and benefit from structured
support. Respondent's therapist, psychologist Dr. Hansboro,
testified that her “emotional behavior and anger management” issues
had improved during the two years he had treated her. However, he
reported that she missed sessions for eight months in 2001, against
his recommendation. Dr. Graham, a psychiatrist, testified that
although Respondent was still seeing him at the time of the
hearing, he had not seen her face-to-face since 14 February 2002
and had not prescribed medication for her since May of 2002. The
evidence at the hearing regarding whether Respondent was still
taking medication for her mental health issues conflicts.
The testimony at the TPR hearing also reveals that Respondent
reported numerous physical ailments, which were not corroborated.
Respondent reported to various DSS workers that she had leukemia,
kidney failure, and a rare bone disorder, but failed to provide
medical records as ordered by the court. A court-ordered medical
exam revealed only diabetes and asthma. Respondent testified that
she received Social Security disability, but never provided proof
of this as requested by the court.
Respondent makes multiple assignments of error. First, she
contends that the trial court erred in concluding there was
sufficient competent evidence to support the statutory grounds to
terminate her parental rights. The petitioner must prove neglect
by clear, cogent, and convincing evidence in order to terminateparental rights on these grounds. In re Parker, 90 N.C. App. 423,
425, 368 S.E.2d 879, 881 (1988). However, when appellant takes no
exceptions to individual findings of fact, we presume that the
trial court's findings of facts are supported by competent evidence
and these findings become binding on appeal. Anderson
Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d
159, 161 (1982); see also, In Re TLB, ___ N.C. App. ___, 605 S.E.2d
249, 251 (2004). Here, because Respondent failed to except to any
of the trial court's findings of fact, we accept the findings of
fact as binding. Thus, we must determine only whether the
unchallenged findings of fact support the court's legal conclusion
that statutory grounds existed to terminate Respondent's parental
rights.
The court concluded that the evidence established three
statutory grounds to terminate Respondent's parental rights: N.C.
Gen. Stat. §§ 7B-1111(a)(1),(2), and (3) (2002). In three separate
assignments of error, Respondent asserts that the court lacked
competent evidence to support termination under each of these
statutory grounds. N.C. Gen. Stat. § 7B-1111 (a) (1) provides
grounds to terminate parental rights where:
The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
Id. N.C. Gen. Stat. § 7B-101 (15) (2002) defines a “neglected
juvenile,” in relevant part, as:
A juvenile who does not receive proper care,supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of law.
Id. (emphasis added).
Here, the court made several findings of fact which support
its conclusion that grounds existed to terminate Respondent's
parental rights per N.C. Gen. Stat. § 7B-1111 (a) (1). The court
found that Respondent suffers from borderline personality disorder,
which impairs her ability to parent, and that she quit attending
therapy and taking her medication, even though she had been ordered
by the court to participate in therapy and follow the
recommendations of her therapist. Respondent also failed to follow
the court's earlier order that she maintain stable employment and
provide information regarding any disability she suffered. The
court also found that Respondent made repeated threats to DSS
workers and the foster parents and that she behaved inappropriately
during visits with the children. Respondent also missed numerous
visits with her children.
This Court considered similar facts in In re Brim. 139 N.C.
App. 733, 535 S.E.2d 367 (2000). The child in Brim was initially
adjudicated neglected due to a spiral fracture in his arm. Id. at
734-35, 535 S.E.2d at 368. On appeal, the Court held that the
parental rights of the mother could be terminated where she
suffered from borderline personality disorder, demonstrated a
continuing inability to interact properly with her child and thechild's caregivers, and failed to complete terms of the court's
earlier orders which were “specifically designed to alleviate the
conditions which brought the child into foster care.” Id. at 738,
535 S.E.2d at 370. The Court noted the trial court's findings of
fact that the mother harassed the child's caregivers, that she
failed to demonstrate an ability to control her anger, that she
failed to maintain employment or demonstrate financial
responsibility, and that she failed to visit with the child on the
regular visitation schedule. Id. at 742-43, 535 S.E.2d at 372.
These findings established sufficient grounds to terminate the
mother's parental rights for neglect. Id. at 743, 535 S.E.3d at
373. We conclude that here, as in Brim, the trial court's findings
of fact support the conclusion that grounds existed to terminate
Respondent's parental rights for neglect.
Respondent argues that there were insufficient indicia of
abuse or neglect existing at the time of trial. The court may
consider a prior adjudication of abuse or neglect in making its
determination, but such prior adjudication alone will not suffice
where the natural parents have not had custody for a significant
period before the TPR hearing. In re Ballard, 311 N.C. 708, 319
S.E.2d 227 (1984). The Court must consider evidence of changed
circumstances and the probability of a repetition of abuse or
neglect. In re Alleghany Co. v. Reber, 75 N.C. App. 467, 331
S.E.2d 256, aff'd, 315 N.C. 382, 337 S.E.2d 851 (1985). The court
must consider the fitness of the parent at the time of the
termination proceeding. Ballard at 715, 319 S.E.2d at 232. Here,the court made several findings regarding Respondent's ongoing or
current problems, and found specifically:
Since the prior adjudication of neglect, the
Respondent Parents; (sic) conduct has been
such as to demonstrate that the conditions
which led to the prior adjudication are still
present. There is a strong probability that
there would be a repetition of that neglect.
In her next two assignments of error, Respondent contends that
the trial court lacked sufficient competent evidence to establish
grounds for termination of her parental rights under N.C. Gen.
Stat. §§ 7B-1111(a)(2) and (3). We note that Respondent again
fails to except to any findings of fact in these assignments of
error. However, because we conclude that the trial court properly
terminated Respondent's parental rights under N.C. Gen. Stat. §
7B-1111(a)(1), we need not address these assignments of error:
“[t]he finding of any one of the grounds is sufficient to order
termination.” Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264,
267 (2003).
Respondent also argues that the trial court erred in admitting
her entire criminal record into evidence, as some of the items on
that record did not meet the standards of Rule 609 of the North
Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 609
(2002). We reject this assignment of error. Although Respondent
initially objected to the introduction of this evidence, the judge
later set out what he found in the record, and other witnesses
testified regarding respondent's record without further objection.
The admission of evidence without objection waives prior or later
objection to the admission of the same or similar evidence. Statev. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979).
Furthermore, Rule 609 does not apply here, as this rule applies to
the admission of past crimes for impeachment purposes and the
record came in here as part of petitioner's substantive case-in-
chief, not to attack Respondent's credibility. N.C. Gen. Stat. §
8C-1, Rule 609. Finally, we conclude that even if the admission of
her record was error, Respondent fails to show prejudice. An error
“is not prejudicial unless 'there is a reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises.'” State v. Barden, 356 N.C. 316, 381, 572 S.E.2d 108, 149
(2002). Here, in light of Respondent's failure to follow through
on court orders regarding employment and mental health treatment,
as well as missed visits and repeated inappropriate behavior
towards her children and others, we conclude that the court would
not have reached a different result but for the admission of her
criminal record.
Respondent also contends that the trial court erred in
admitting inadmissible hearsay evidence. Over objection, Ms. Toni
Welch, Social Work Supervisor, testified as to her conversations
with a nurse who treated B.A.A. at the hospital, who told her
Respondent acted suspiciously. Similarly, Respondent's
psychiatrist testified to a conversation he had with a pharmacist
which led him to become suspicious that Respondent misused
prescription drugs. “'Hearsay' is a statement, other than one made
by the declarant while testifying at the trial or hearing, offeredin evidence to prove the truth of the matter asserted.” N.C.G.S. §
8C-1, Rule 801(c) (2002). However, “when evidence of . . .
statements by one other than the witness testifying is offered for
a proper purpose other than to prove the truth of the matter
asserted, it is not hearsay and is admissible.” State v. Coffey,
326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990). Such non-hearsay
statements include those proferred to explain subsequent conduct of
the person to whom the statement was made. State v. Morston, 336
N.C. 381, 399, 445 S.E.2d 1, 11 (1994).
Here, Ms. Welch's testimony regarding what the nurse told her
serves to explain Ms. Welch's subsequent investigation of
Respondent. Likewise, Dr. Graham's testimony regarding what the
pharmacist told him came in on cross-examination regarding why he
believed Respondent misused drugs and then stopped giving her
prescriptions. Furthermore, we conclude that even if the trial
court had erred in admitting these statements, any error was
harmless. Given the other evidence before the trial court, we
cannot say that the court would have reached a different result
without this evidence. Thus, we overrule this assignment of error.
Respondent also argues that the trial court erred in
concluding that the best interests of the children supported
termination of her parental rights. A termination of parental
rights proceeding consists of two phases. In re Blackburn, 142
N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the
adjudicatory stage, the petitioner must prove by clear, cogent, and
convincing evidence that at least one statutory ground existspursuant to N.C. Gen. Stat. § 7B-1111 (2002). Id. If petitioner
proves at least one ground for termination, the trial court
proceeds to the dispositional phase, where it considers whether, in
its discretion, termination is in the best interests of the child.
N.C. Gen. Stat. § 7B-1110(a) (2002); Blackburn, 142 N.C. App. at
613, 543 S.E.2d at 910. We review the trial court's decision to
terminate parental rights for abuse of discretion. In re
Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
Rulings based on a trial court's discretion will only be reversed
upon “a showing of manifest abuse of that discretion.” In re Black,
76 N.C. App. 106, 110, 332 S.E.2d 85, 87 (1985). Here, we have
already concluded that the trial court's findings of fact supported
its conclusion that statutory grounds for termination existed.
Similarly, we conclude that, based on the evidence before the trial
court, it did not abuse its discretion in terminating Respondent's
parental rights.
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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