An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-389


Filed: 17 January 2006

In the Matter of C.S.                Cabarrus County
                                No. 03 J 166

    Appeal by respondent from order entered 1 November 2004 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 12 October 2005.

    Cabarrus County Department of Social Services, by Sarah E. Morgan, for petitioner-appellee.

    Peter Wood for respondent-appellant.

    CALABRIA, Judge.

    Denise F. (“respondent”) appeals from an order terminating her parental rights to the minor child (“C.S.”). We affirm.
    On 8 May 2003, the Cabarrus County Department of Social Services (“D.S.S.”) became involved with C.S.'s older sister (“H.”) because her medical needs were not being met. Although H. was diagnosed with leukemia and asthma, both parents failed to provide consistent medical care and an environment conducive to improving her health. When D.S.S. obtained non-secure custody of H. on 17 June 2003, C.S. and another sibling remained in the home with respondent and the biological father (“Curtis S.”). On 14 July 2003, concerned about supervision issues, domestic violence, and substance abuse, D.S.S. removed C.S. and his other sibling from respondent's and Curtis S.'s custody. D.S.S.'s specific concerns included the children's exposure to the parents' use of marijuana and prescription drugs, and the parents' failure to demonstrate an understanding of C.S.'s needs for stimulation and interaction. For instance, when D.S.S. visited the home between 11 a.m. and 2 p.m., C.S. was found with a bottle propped in his mouth and a blanket over his head. As a result of the extended periods of time C.S. spent in a swing or crib, his head was misshapen, and he was required to wear a helmet 23 hours a day to treat his condition.
    At the time of the adjudication hearing, respondent and Curtis S. entered into an adjudication/disposition consent order on 18 September 2003. The court concluded that C.S. was neglected based on the stipulations of respondent, and the permanent plan was reunification with any parent. The trial court ordered respondent, inter alia, to submit to a substance abuse assessment, attend approved parenting classes, obtain/maintain stable employment or proof of disability, obtain/maintain suitable housing, pay child support, regularly contact the social worker, abide by the visitation plan, and participate in a domestic violence support group.
    On 11 December 2003, the trial court held an initial permanency planning hearing to review respondent's progress. In its resulting order, the trial court incorporated by reference, inter alia, D.S.S.'s 11 December 2003 court summary that showed in part: 1) respondent submitted to a psychological evaluation and substance abuse assessment; 2) respondent failed to submit to a drug screen on 9 October 2003, submitted to a drug screen that wasnegative on 13 November 2003, then attempted to submit to a drug screen on 3 December 2003 but did not have ID and never returned with ID; 3) respondent failed to complete parenting courses; 4) respondent attended all except two visitations; 5) respondent and Curtis S. lived with respondent's mother in a two-bedroom single- wide mobile home that “does not provide adequate space” for C.S. and the other two children; 5) respondent receives disability payments in lieu of employment, which the record reveals is because respondent was diagnosed as being bipolar; and 6) respondent has not paid child support. The court also found “[n]o relatives of the juvenile are willing and able to provide the proper care and supervision of the juvenile in a safe and proper home” and that “the mother [has made] minimal progress in addressing the issues which led to the placement.” The court ordered that C.S. remain in the legal custody of D.S.S. but that the permanent plan remain reunification.
    On 25 March 2004, the trial court held another permanency planning review. The court incorporated by reference both the D.S.S. court summary and the Guardian ad Litem's (“G.A.L.”) report. The court summary stated respondent signed up to participate in an intensive outpatient substance abuse treatment program but did not attend. The court summary also stated respondent: missed several of her counseling appointments; tested positive for cannabinoids in a 12 December 2003 drug test and negative in a 22 January 2004 drug test; and missed three visits with C.S. Additionally, although respondent and Curtis S. moved to a new residence, the residenceneeded a lot of work, and respondent failed to provide “verification that it is their residence or how much they are paying for rent.” Furthermore, respondent failed to provide verification that she had made any child support payments. The G.A.L. reported:
        [C.S.] has to wear his [head] band. Without this band, [C.S.]'s misshapen head would eventually cause jaw-related difficulties that could make it problematic for him to eat and could lead to other issues like headaches, TMJ, etc. [C.S.] must be taken to the doctor biweekly to have his [head] band adjusted. This treatment will continue for many, many months. [C.S.] had to have such a medical procedure because he had been left so much in a crib or swing when he was smaller to the point that his head developed in such a manner. The appointments take place in Charlotte, and if his parents cannot make [C.S.'s] visits with regular frequency, it is doubtful that they could make his biweekly medical appointments.

The trial court found respondent had “made no progress in addressing the issues which led to placement,” and the court changed the permanent plan for C.S. to adoption. Additional hearings were held on 22 April 2004 and 20 May 2004. Respondent missed another visit with C.S. prior to each hearing.
    On 9 June 2004, D.S.S. filed a motion to terminate respondent's and Curtis S.'s parental rights. Only the termination of respondent's parental rights are at issue in the present appeal. Respondent filed an answer to the motion to terminate her rights on 23 June 2004. On 8 October 2004, at the termination hearing, the trial court determined that statutory grounds existed for terminating respondent's parental rights and terminatingrespondent's rights was in the best interests of C.S. On 1 November 2004, the trial court ordered termination of respondent's and Curtis's parental rights. Respondent appeals from the order terminating her rights.
    Respondent first argues that “the trial court committed prejudicial error when it relied on numerous prior court orders in its termination order when such orders were . . . never even offered into evidence.” D.S.S. replies that “[b]ecause [the] orders were prior orders in the same cause they were part of the matter without either side having had to admit them.” We agree with D.S.S. This Court has recognized in termination of parental rights cases, “[n]either party [is] required to offer the file into evidence. A trial court may take judicial notice of earlier proceedings in the same cause.” In the Matter of Isenhower, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Accordingly, the trial court properly considered prior court orders in this case, and we reject respondent's first assignment of error.
    Respondent next challenges numerous findings of fact. On appeal from an order terminating parental rights, our standard of review is whether: (1) there is clear, cogent, and convincing evidence to support the district court's findings of fact; and (2) the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (citations omitted). Clear, cogent, and convincing evidence “is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond areasonable doubt required in criminal cases.” In the Matter of Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984). If the district court's findings are supported by clear, cogent, and convincing evidence, they are binding on appeal even if there is evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988) (citations omitted).
    Respondent specifically challenges findings of fact 10 to 10(g) on the grounds that the trial court's findings should have more fully accounted for her bipolar disorder. Respondent argues her disability caused obvious financial hardship and also prevented her from complying with the D.S.S. case plan. We reject this argument not only because respondent specifically testified at trial that she is not bipolar and has never been but also because unchallenged findings illustrate the trial court did consider respondent's possible disability. The trial court found no grounds existed to terminate respondent's parental rights based on any incapability of respondent to provide C.S. proper care. After considering her psychological assessment, the trial court also found that respondent's “intellectual capacity does permit her to benefit from counseling, parenting, and self-improvement instruction.” Moreover, the trial court determined that respondent was “not necessarily unfit for a caregiver role” and that she is “responsible for her motivation, judgment, and for demonstrating consistent commitment.” These findings show the trial court did consider respondent's possible disability, and we, accordingly, reject this assignment of error.    Respondent next argues since she “substantially complied with the D.S.S. case plan[,] . . . there was no probability of future neglect upon her child.” In reviewing termination of parental rights cases when the grounds for termination are based on neglect, “[w]here, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect.” In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations omitted). Without a modified analysis, D.S.S. would never be able to show by clear, cogent, and convincing evidence that a child is currently neglected by the parent, and termination of parental rights for neglect would be impossible. In the Matter of Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984). The best interests of the child and the fitness of the parent at the time of the termination proceeding are the determinative factors, id., 311 N.C. at 715, 319 S.E.2d at 232, and “although prior adjudications of neglect may be . . . considered by the trial court, they will rarely be sufficient, standing alone, to support a termination of parental rights, since the petition must establish that neglect exists at the time of hearing.” Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407. Accordingly, in determining the child's best interests and the fitness of the parent in cases where the child has not been in the parent's custody for a significant period of time, the trial court must “consider evidence of changed conditions in light of the history of neglect by the parent and theprobability of a repetition of neglect.” Id. After reviewing the record and transcripts, we hold the trial court's finding regarding the likelihood of future neglect is supported by clear, cogent, and convincing evidence.
We next consider whether these findings, which are conclusive on appeal, support the trial court's conclusion of law that “a statutory ground exists by clear, cogent, and convincing evidence to terminate the Respondent Denise F[.]'s parental rights: the Respondent . . . has neglected [C.S.] within the meaning of [N.C. Gen. Stat.] § 7B-101(15) and there is a likelihood that such neglect would continue in the future.” The trial court's findings fully support its conclusion of law, and we reject this assignment of error.
    Respondent next argues that the trial court erred in its finding and conclusion of law that terminating her parental rights was in the best interests of C.S. She also argues that the trial court abused its discretion in terminating her parental rights. We hold the finding is supported by clear, cogent, and convincing evidence. Respondent has in the past neglected C.S. and failed to comply with court orders and D.S.S. directives. The trial court found the likelihood of repetition of neglect to be strong. The evidence further shows that C.S. has been in a steady foster home since 14 July 2003 with foster parents who are committed to him and want to adopt him. Also, as the trial court found, having a family that is committed to meeting C.S.'s special medical needs,especially treatments for his misshapen head, is important to determining what is in his best interests.
    The trial court's finding adequately supports the conclusion of law that terminating respondent's parental rights is in C.S.'s best interests, and we find no abuse of discretion by the trial court in determining that terminating respondent's parental rights is in C.S.'s best interests. See In re Black, 76 N.C. App. 106, 110, 332 S.E.2d 85, 87 (1985) (saying, “A ruling based on a trial court's discretion will not be reversed without a showing of manifest abuse of that discretion.”)
    Because respondent has failed to argue her remaining assignments of error on appeal, they are abandoned pursuant to N.C. R. App. P. 28(b)(6) (2005).     
    For the foregoing reasons, we affirm the order of the trial court. Having affirmed the order of the trial court, we need not address petitioner's argument on appeal that the trial court erred in failing to make findings regarding alternative grounds for terminating parental rights under N.C. Gen. Stat. § 7B-1111(a)(3) (2003).
    Judges HUDSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***