IN RE: SDG and TLG
Wayne County
;
No. 03 J 117
E.B. Borden Parker, for petitioner-appellee.
Winifred H. Dillon, for respondent-appellant.
STEELMAN, Judge.
Respondent is the mother of minor children T.L.G. and S.D.G.
(the children), who were born on 20 July 1998 and 9 February 2000
respectively. Respondent was living with her mother and the
children in May of 2002 when an agent of Wayne County Social
Services (Social Services) arrived to investigate a report of
neglect. Social Services found the children to be “filthy,” and
that S.D.G. had “mucous caked on her face.” The children's
behavior was at times “out of control.” Respondent denied any
neglect, arguing that the children's appearance was the result of
having been playing outside. Social Services substantiated the
allegation of neglect on 21 June 2002. On 24 June 2002, Social Services received another report
alleging that respondent had dropped the children off at the home
of a friend and left them there. When Social Services arrived, the
children were so dirty that Social Services changed their clothes.
As a result of this investigation, Social Services took the
children into custody and placed them in foster care.
On 1 July 2002 T.L.G. was admitted as a psychiatric inpatient
to UNC Hospitals and kept there until 19 July 2002 as a result of
his unmanageable aggressive and violent behavior. Though he was
nearly four years old, T.L.G. was not bowel or bladder trained. He
was diagnosed with reactive attachment disorder and attention
deficit hyperactivity disorder and found to have “severe and
psychological stressors including removal from the home secondary
to severe neglect, inadequate social support, inadequate housing
and inadequate finances.” One of the causes of T.L.G.'s problems
was identified as his failure to have bonded with anyone in the
past. T.L.G. showed remarkable improvement during his stay at the
hospital, including becoming toilet trained, more independent in
his daily activities, and much easier to direct and control.
T.L.G. required extensive dental work requiring hospitalization,
including having eight teeth filled, two teeth extracted, and two
crowns requiring root canals. This was required due to a lack of
dental care while in the custody of respondent. He also had speech
problems. T.L.G. was placed in a therapeutic foster home and
attended special daycare due to his particular behavioral problems. S.D.G. was also placed in a special foster home and attended
special daycare for her behavioral problems. She was evaluated by
Dr. Reichel of the Teddy Bear Clinic who stated by deposition his
concern that she was too comfortable receiving her medical exam,
and that in his opinion “child sexual abuse is not only possible
but unfortunately more likely to be probable.” Social Services
discovered that S.D.G. had asthma, a fact that respondent had not
disclosed, and she also required extensive dental work: eight
fillings, two crowns, and two extractions.
At a 22 August 2002 hearing, respondent admitted there was a
factual basis for neglect, and the trial court adjudicated the
children neglected and dependent. Respondent was ordered to take
parenting classes; obtain a psychological evaluation; obtain a
substance abuse evaluation; and submit to random drug screening.
Nearly eight months after the hearing, respondent completed the
parenting classes, and obtained a substance abuse assessment. This
assessment indicated that respondent had no substance abuse
problem. Respondent failed to obtain a psychological evaluation
prior to the termination hearing on 7 August 2003. At the
termination hearing, the trial court concluded that grounds existed
to terminate respondent's parental rights to the children, that the
conditions leading to this determination were likely to reoccur if
the children were returned to respondent's care, and that it was in
the best interests of the children for respondent's parental rights
to be terminated. The trial court then ordered that respondent'sparental rights be terminated by written order filed 5 September
2004. From this order respondent appeals.
In her first argument, which encompasses her first and second
assignments of error, respondent contends that the petition to
terminate her parental rights was legally insufficient because it
failed to allege sufficient facts and did not have a custody order
attached to it. We disagree.
N.C. Gen. Stat. § 7B-1104(6) (2003) requires that any petition
for termination of parental rights state “[f]acts that are
sufficient to warrant a determination that one or more of the
grounds for terminating parental rights exist.” Respondent's
argument that the petition violated this provision is equivalent to
a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the North Carolina Rules of Civil Procedure. In re
Quevedo, 106 N.C. App. 574, 578, 419 S.E.2d 158, 159 (1992). A
Rule 12(b)(6) motion may not be made for the first time on appeal.
Dale v. Lattimore, 12 N.C. App. 348, 351-52, 183 S.E.2d 417, 419
(1971). The record is devoid of any indication that respondent
made such a motion before the trial court. She may not assert it
for the first time before this Court.
N.C. Gen. Stat. § 7B-1104(5) requires that if the court has
placed custody of the children in someone other than the parent, a
copy of the custody order be attached to the termination petition.
The record does not indicate that the custody order was attached to
the petition. While this omission constitutes error, we find no
authority to support respondent's contention that violation of thisprovision of N.C. Gen. Stat. § 7B-1104(5) requires reversal of the
trial court's order terminating respondent's parental rights.
Respondent makes no argument that this oversight prejudiced her in
any manner, and our review of the record reveals no such prejudice.
We therefore decline to overturn the trial court's order on this
ground. See In re Humphrey, 156 N.C. App. 533, 539, 577 S.E.2d 421,
426 (2003); In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d
539 (1996). This argument is without merit.
In her sixth argument, based on her tenth assignment of error,
respondent contends that the trial court's conclusion of law
stating that grounds existed to terminate her parental rights was
insufficient to sustain its order terminating respondent's parental
rights because it failed to state the legal basis for termination.
We disagree.
Respondent is correct that a termination order must include a
conclusion of law that at least one of the specified grounds for
termination listed in N.C. Gen. Stat. § 7B-1111(a) (2003) exists.
N.C. Gen. Stat. § 7B-1109(e) (2003). The trial court's conclusion
of law purporting to state the grounds for termination is as
follows: “That the grounds exist to terminate the parental rights
of [respondent] with respect to the juveniles, [S.D.G. and
T.L.G.].” Standing alone, this conclusion of law is insufficient
to meet the requirements of N.C. Gen. Stat. §§ 7B-1111(a) and 7B-
1109(e) in that it does not specifically list one or more of the
nine enumerated statutory grounds supporting termination. Were
this the only relevant conclusion of law, we would be obligated toremand this case to the trial court for further findings of fact
and conclusions of law. However, the trial court's 25th finding of
fact states: “That [respondent] neglected the juveniles.” This
determination is “more properly designated [a conclusion] of law
and we treat [it] as such for the purposes of this appeal.” In re
Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997).
The classification of a determination as
either a finding of fact or a conclusion of
law is admittedly difficult. As a general
rule, however, any determination requiring the
exercise of judgment, or the application of
legal principles, is more properly classified
a conclusion of law. Any determination reached
through “logical reasoning from the
evidentiary facts” is more properly classified
a finding of fact.
Id. (internal citations omitted). “The determination of neglect
requires the application of the legal principles set forth in N.C.
Gen. Stat. § 7A-517(21) and is therefore a conclusion of law.” Id.
at 510, 491 S.E.2d at 675-76. Because neglect is one of the
statutory grounds sufficient to terminate respondent's parental
rights (N.C. Gen. Stat. § 7B-1111(a)(1)), the trial court's order
does contain the required conclusion of law. Respondent does not
argue that the trial court's finding of neglect was erroneous.
This argument is without merit.
In her second argument, based on her fourth assignment of
error, respondent contends that the trial court erred in overruling
her objection to certain testimony of the Child Protective Services
investigator on the basis that it constituted inadmissible hearsay.
We disagree. On direct examination, the Child Protective Services
investigator made the following statement concerning the father of
the children: “He just had some concerns. He verified the
allegations and had the same concerns as the agency had.” The
investigator further testified: “In regards to the mother not
providing appropriate care for the children, concerns (inaudible)
lack of supervision, concerns with the children being at the
grandmother's and the grandmother not doing anything.”
“[A]n error in the admission of evidence is not grounds for
granting a new trial or for setting aside a verdict unless the
admission amounts to the denial of a substantial right. G.S. 1A-1,
Rule 61. 'The burden is on the appellant not only to show error,
but also to enable the Court to see that he was prejudiced and that
a different result would have likely ensued had the error not
occurred.'” Warren v. Asheville, 74 N.C. App. 402, 409, 328 S.E.2d
859, 864 (1985)(citation omitted). Assuming arguendo that
admission of the testimony was error, it is respondent's burden to
prove that absent the erroneous testimony the verdict would have
likely been different. Id. Respondent fails to make any argument
in her brief that the contested testimony prejudiced her in any
manner. We have thoroughly reviewed the record and hold that even
if the testimony in question was improperly admitted at trial,
respondent was not prejudiced thereby. This argument is without
merit.
In her fifth argument, based on her eighth assignment of
error, respondent contends that the trial court's findings of fact18, 19, 20 and 21 were not supported by any clear, cogent and
convincing evidence.
Respondent argues the trial court's findings of fact 18, 19,
20 and 21 are based on a deposition of Dr. Michael E. Reichel that
was not properly before the trial court, and thus cannot constitute
evidence to support those findings of fact. The deposition of Dr.
Reichel was before the trial court at the 10 April 2003 review
hearing, and was specifically referenced in the order entered at
that hearing. In the order terminating parental rights, the trial
court took judicial notice of the files in the neglect cases. The
termination order also specifically referred to Dr. Reichel's
testimony. Respondent argues that since the trial court did not
specifically incorporate by reference Dr. Reichel's deposition in
the 10 April 2003 order that the trial court could not take notice
of it at the termination hearing. The 10 April 2003 order stated
specifically that Dr. Reichel's deposition was reviewed. It was
therefore before the trial court at that hearing and properly
before the trial court at the termination hearing.
We further note that, respondent includes no authority in her
brief in support of her argument in violation of Rule 28(b)(6) of
the North Carolina Rules of Appellate Procedure. This violation of
Rule 28 also subjects respondent's argument to dismissal. Wilson v.
Wilson, 134 N.C. App. 642, 643, 518 S.E.2d 255, 256 (1999). This
argument is without merit.
In her third and fourth arguments, based on her sixth and
seventh assignments of error, respondent contends that the trialcourt erred in making its findings of fact 13 and 16 because they
were not supported by clear, cogent and convincing evidence. We
agree in part.
The trial court's findings of fact in a termination proceeding
must be supported by clear, cogent and convincing evidence. In re
Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6 (2004). “[T]he
trial court's findings of fact supported by clear and convincing
competent evidence are deemed conclusive, even where some evidence
supports contrary findings.” In re Helms, 127 N.C. App. 505, 511,
491 S.E.2d 672, 676 (1997).
Respondent contests finding of fact 13: “That while in the
care of [respondent, T.L.G.] was diagnosed with a bonding disorder
but was not treated.” It is true that T.L.G. was not diagnosed
with any bonding type disorder until after he was removed from
respondent's custody. It is also true that the technical diagnosis
was reactive attachment disorder. The testimony at trial was
uncontested that “the cause of this disorder was that he had not
bonded with anyone in the past.” While incorrectly worded, the
substance of this finding, that T.L.G. developed Reactive
Attachment Disorder when in the custody of respondent and that this
was partially due to the lack of bonding between him and
respondent, is correct. This was supported by clear, cogent and
convincing evidence. Further, respondent asserts no prejudice
resulting from the wording of this finding.
Finding of fact 16 states: “That both children have exhibited
unusual sexual behaviors for which [respondent] sought notreatment.” While there is some evidence in the record to support
a finding that S.D.G. exhibited unusual sexual behaviors, there is
no evidence before us to support a finding that T.L.G. exhibited
any such behaviors, and thus this finding of fact was made in
error. Therefore we do not consider this finding of fact.
In her seventh argument, based on her twelfth and thirteenth
assignments of error, respondent contends that the trial court
abused its discretion in concluding that it was in the best
interests of the children to terminate respondent's parental
rights. We disagree.
We first note that respondent has made no argument in her
brief that the trial court erred in determining, as either a
finding of fact or a conclusion of law, that she neglected the
children. Having failed to argue this issue in her brief, she has
abandoned it. Strader v. Sunstates Corp., 129 N.C. App. 562, 567,
500 S.E.2d 752, 755 (1998).
Should the court determine that any one or
more of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the juvenile unless the court
shall further determine that the best
interests of the juvenile require that the
parental rights of the parent not be
terminated.
N.C. Gen. Stat. § 7B-1110(a). The conclusion of the trial court
that termination is in the best interests of the children will not
be upset absent an abuse of discretion. In re Shepard, 162 N.C.
App. 215, 222, 591 S.E.2d 1, 6 (2004). There is ample evidence that the children were neglected
resulting in serious developmental delays and causing severe dental
deterioration. T.L.G. developed reactive attachment disorder while
in respondent's custody and care. The facts further evidence that
the children improved substantially once removed from respondent's
custody. The trial court's third conclusion of law, which
respondent does not contest, states that the conditions which
existed when the children were in respondent's home would likely
reoccur were the children to return to her custody. We cannot say
that on these facts, even excluding any evidence that the children
may have been sexually abused, the trial court abused its
discretion in concluding that it was in the best interests of the
children for respondent's parental rights to be terminated. This
argument is without merit.
Because defendant has not argued her other assignments of
error in her brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
AFFIRMED.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
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