Initially, we note respondent has failed to present argument
on two of his original four assignments of error. Pursuant to
N.C.R. App. P. 28(b)(6) (2005), the omitted assignments of error
are deemed abandoned. We therefore limit our present review to
those assignments of error properly preserved for appeal.
In his remaining arguments, respondent maintains the trial
court's finding of fact number twelve is not supported by clear,
cogent and convincing evidence, and further challenges the court'sconclusion that sufficient statutory grounds for termination
existed. We find respondent's arguments unpersuasive.
A proceeding to terminate parental rights is bifurcated.
In
re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). In
the adjudication phase,
see N.C. Gen Stat. § 7B-1109 (2003), the
petitioner (DSS herein) bears the burden of establishing by clear,
cogent, and convincing evidence that termination is supported by
one or more of the grounds set out in N.C. Gen. Stat. § 7B-1111
(2003).
Id. The standard of appellate review governing the
adjudication phase is whether the trial court's findings of fact
are supported by clear, cogent, and convincing evidence, and
whether the court's findings support its conclusions of law.
Baker,
158 N.C. App. at 493, 581 S.E.2d at 146.
Subsequently, in the disposition phase,
see N.C. Gen. Stat. §
7B-1110 (2003), the trial court must consider whether termination
is in the best interests of the child. N.C.G.S. § 7B-1110(a).
Appellate review of this determination is limited to an abuse of
discretion standard.
In re Brim, 139 N.C. App. 733, 744, 535 S.E.2d
367, 374 (2000).
In the case
sub judice, respondent's arguments are directed
solely at the adjudication phase. Respondent assigns error to the
trial court's finding of fact number twelve (“finding twelve”) and
to the court's conclusion that one or more of the statutory grounds
for termination existed herein. We consider respondent's arguments
ad seriatim.
Finding twelve reads: The minor child was adjudicated to be neglected
on May 22, 2003. Neither Ms. P nor Mr. A have
made any reasonable progress under the
circumstance in correcting the conditions that
led to the removal of the minor child. Ms. P
has failed to have contact with anyone involved
in the case for 9 months, and Mr. A, though
readily available to engage in remedial acts,
has failed to do so. Due to their failures,
there is a substantial likelihood that, were
the minor child to be returned to either of
them, that neglect would be repeated.
Respondent initially attacks that portion of finding twelve
stating that respondent, “though readily available to engage in
remedial acts, has failed to do so.” Respondent insists the court's
statement is not supported by clear, cogent, and convincing
evidence. We do not agree.
Respondent, by his own admission, was unemployed at the time
of the termination hearing and maintained only sporadic employment
throughout the pendency of the proceedings below. Moreover,
respondent continued to reside with his mother and was dependent
solely upon her for food and shelter. Additionally, respondent
relied upon his mother for transportation because, although eligible
to obtain a driver's license, he had made no attempt to secure one.
Further, respondent dropped out of school in the ninth grade and
discontinued his later attempt to obtain a GED. Notwithstanding the
minor child's severe nutritional deficits, respondent also simply
took the mother's word she was feeding the minor child properly and
made no effort to ensure she was doing so. Further, at the
termination hearing, respondent asserted he “[wa]s trying to get his
life straightened out,” but readily admitted that “it ain't
happening.”
Finally, respondent was accorded the opportunity fora home study to evaluate his residence for possible placement of the
minor child in his custody, but respondent was absent when the
social worker and guardian ad litem arrived at the time agreed upon
by respondent and ordered by the trial court. The foregoing,
derived from respondent's own testimony, provide clear, cogent, and
convincing evidence supporting the finding that he failed to engage
in remedial efforts.
See In re Adcock, 69 N.C. App. 222, 225, 316
S.E. 2d 347, 349 (1984) (“failure to provide a stable living
environment and proper food and clothing” constitutes clear evidence
of neglect);
see also In re Montgomery, 311 N.C. 101, 109-10, 316
S.E.2d 246, 252 (1984) (“clear, cogent and convincing standard” is
“greater than the preponderance of the evidence standard required
in most civil cases, but not as stringent as the requirement of
proof beyond a reasonable doubt required in criminal cases”).
Respondent next directs our attention to two portions of
finding twelve, which he properly characterizes as “conclusions
designated findings,”
see In re M.R.D.C., 166 N.C. App. 693, 697,
603 S.E.2d 890, 893 (2004) (if a “finding of fact is essentially a
conclusion of law . . . it will be treated as a conclusion of law
. . . .”) (citation omitted),
disc. review denied, 359 N.C. 321, 611
S.E.2d 413 (2005),
and which 1) recite the failure of respondent to
make “any reasonable progress under the circumstance[s] in
correcting the conditions that led to the removal of the minor
child,” and 2) provide there was “a substantial likelihood that,
were the minor child to be returned to [respondent,] that neglect
would be repeated.” These two statements reiterate, and thusessentially are subsumed in, the trial court's conclusion of law
number three (“conclusion three”) which reads as follows:
Sufficient grounds exist pursuant to N.C.G.S.
§ 7B-1111(a)(1) and (a)(2) for the termination
of the parental rights of [respondent] in that
[he has] neglected the minor child, and in that
[he has] wilfully left the minor child in
foster care 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 minor child.
In his final assignment of error,
respondent contends
conclusion three is “not supported by the findings of fact or by the
evidence.” We are persuaded otherwise.
In conclusion three, the trial court set out its determination
that DSS had established two separate statutory grounds for
termination of respondent's parental rights: (1) neglect,
see
N.C.G.S. § 7B-1111(a)(1), and (2)
wilfully leaving the minor child
in foster care for more than twelve months without showing to the
satisfaction of the court that reasonable progress under the
circumstances had been made in correcting those conditions which led
to the removal of the minor child,
see N.C.G.S. § 7B-1111(a)(2).
Under N.C.G.S. § 7B-1111(a), establishment of a single statutory
ground for termination permits the court to proceed to the
dispositional phase.
In re Shermer, 156 N.C. App. 281, 285, 576
S.E.2d 403, 407 (2003). Accordingly, if the trial court's findings
of fact, other than the portions of finding twelve properly
considered conclusions of law, are supported by the evidence and
sustain one of the court's stated statutory grounds for termination,
the Order may be affirmed without review of the remaining ground. We elect to consider
first whether the record supports termination
of respondent's parental rights on grounds of neglect under N.C.G.S.
§ 7B-1111(a)(1).
To establish neglect in a termination of parental rights case,
the petitioner must present clear, cogent, and convincing evidence
that: (1) the juvenile is neglected within the meaning of N.C. Gen.
Stat. § 7B-101(15), and (2) “as a consequence of the neglect, the
juvenile has sustained some physical, mental, or emotional
impairment . . . or there is a substantial risk of such impairment.”
In re Ore, 160 N.C. App. 586, 589, 586 S.E.2d, 486, 488 (2003).
A neglected juvenile
is
[one] 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 . . . .
N.C.G.S. § 7B-101(15) (2003).
Further, “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.”
In re Ballard,
311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). However, where
there is no evidence of neglect at the time of
the termination proceeding . . . parental
rights may nonetheless be terminated if there
is a showing of a past adjudication of neglect
and the trial court finds by clear and
convincing evidence a probability of repetition
of neglect if the juvenile were returned to
[his] parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
The Order contains the following findings of fact pertinent to
the issue of neglect:
5. The minor child was removed from his
mother's home on March 13, 2003, pursuant to a
nonsecure custody order, and placed in foster
care, due to his low-weight, failure-to-thrive
status, which was later diagnosed as psycho-
social dwarfism. While in foster care, he
gained weight and flourished. On March 20,
2003, that nonsecure custody order was
dissolved, and the minor child was returned to
his mother's home. While back in his mother's
home, the minor child's condition deteriorated
and he lost weight. This necessitated the
entry of another nonsecure custody order and
the minor child's return to foster care, where
he has steadily gained weight. However, he
continues to have significant problems related
to his failure to receive sufficient nutrition
in his mother's home.
. . . .
7. Mr. A resided with Ms. P and the minor
child from the minor child's birth until
approximately the fall of 2002. Thereafter, he
had sporadic contact with the minor child until
the petition was filed in March of 2003.
During the period that the minor child was
returned to Ms. P's home from March 20, 2003,
to April 7, 2003, Mr. A visited the minor child
approximately twice. In spite of the minor
child's condition, Mr. A did not ensure that he
was being properly fed but merely took Ms. P's
word for it.
8. While this action has been pending, Mr. A
has resided continuously with his mother. He
is dependent on her goodwill for his shelter,
clothing, food and transportation. He does not
have a driver's license, but he is eligible to
get one. He is not currently employed, but he
states that he has a job starting next week.
This situation is similar to his situation in
May, October, and November of 2003. He has
worked sporadically, often at odd jobs, and has
not been able to maintain employment for any
significant period of time. He started working
on a GED, but stopped and has not resumed.
9. On July 31, 2003, Mr. A requested that the
Court consider his mother's home for placement
of the minor child with him. The Court
inquired when he would be available for a visit
by the social worker and the guardian ad litem,
and he stated that he would be there between
4:30 p.m. and 5:00 p.m. the next day. On
August 1, 2003, Ms. Cales and Ms. Atkins went
to the residence at 4:30 p.m. They were denied
access to the residence by Mr. A's mother and
were told that Mr. A was not there. As a
result, they could not evaluate the residence
to see if it were appropriate. Mr. A stated
today that he went to work rather than to be
home for the visit.
10. Prior to the cessation of reunification
efforts on October 23, 2003, Mr. A attended
visitation at the Department with the minor
child. However, such visitation included
inappropriate conduct by Mr. A wherein he
pretended to cut off the minor child's leg with
a toy saw and told him to “run, nigger, run.”
11. Mr. A stated that he “is trying to get his
life straightened out” but that “it ain't
happening”. The Court agrees . . . .
12. The minor child was adjudicated to be
neglected on May 22, 2003 . . . .
Although insisting in his final assignment of error that the
trial court's conclusion of law determining neglect under N.C.G.S.
§ 7B-1111(a) “is not supported by the findings of fact or the
evidence,” respondent has assigned error to none of the foregoing
findings. See N.C.R. App. P. 10(a) (2005) (“scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record on appeal”). Findings of fact unchallenged
on appeal “are deemed supported by competent evidence” and are
binding upon this Court. In re Padgett, 156 N.C. App. 644, 648, 577
S.E.2d 337, 340 (2003). Additionally, we have determined above that
the portion of finding twelve properly considered a finding of factwas supported by clear, cogent and convincing evidence. We
therefore proceed to examine whether the trial court's findings of
fact support its conclusion of neglect.
Respondent, contending to the contrary, does not address the
findings directed at the minor child's obvious nutritional
deficiencies, thereby in essence conceding the minor child sustained
“some physical . . . impairment.” See Ore, 160 N.C. App. at 589,
586 S.E.2d at 488. Focusing rather upon those findings which
address his failure to “provide proper care [and] supervision,” see
N.C.G.S. § 7B-101(15), to the minor child, respondent insists he
“had no involvement in the conditions which led to the removal of
the juvenile” and that “[i]t was beyond his power to correct th[o]se
conditions.” Respondent's assertions are belied by the unchallenged
findings above setting out his minimal contact with the minor child
as well as his lack of involvement in the child's care and
inappropriate conduct while visiting with the child. See In re
Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (evidence of
minimal contact properly considered in determining neglect), aff'd
per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003); 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” including “failure to provide the personal contact,
love, and affection that inheres in the parental relationship”).
Moreover, the trial court, having the opportunity on several
occasions to observe respondent and determine what weight and
credibility to give his testimony, noted respondent's failure “toengage in remedial acts” in finding twelve sustained infra.
Finally, in respondent's appellate brief, we deem telling
respondent's severely qualified gloss upon the instant record:
[respondent] complied with all orders of the
court, except the requirement that he be home
for a home visit . . . [and] paid child support
with the exception of the current month, and in
fact had worked and earned money, although that
employment may have been intermittent.
(emphasis added)
. See Adcock, 69 N.C. App. at 224, 316 S.E.2d at
348 (“nonfeasance as well as malfeasance” by a parent may constitute
neglect).
In sum, the unchallenged findings of fact outlined above, as
well as that part of finding twelve directed at respondent's failure
“to engage in remedial acts,” more than adequately support the trial
court's characterization of the minor child as a neglected juvenile
as well as the court's conclusion
that sufficient grounds existed
to terminate respondent's parental rights pursuant to N.C.G.S. §
7B-1111(a)(1). Having so ruled, we need not address respondent's
argument regarding termination of his parental rights pursuant to
N.C.G.S. § 7B-1111(a)(2). See Shermer, 156 N.C. App. at 285, 576
S.E.2d at 407.
Affirmed.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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