IN THE MATTER OF:
Zo. M; Orange County
Za. M; & Nos. 00 J 92; 01 J 83;
Jo. M 03 J 1
Northern Blue, L.L.P., by Carol J. Holcomb and Samantha H.
Cabe, for Orange County Department of Social Services,
petitioner-appellee.
Womble Carlyle Sandridge & Rice, PLLC, by John J. Bowers, for
Guardian ad Litem, petitioner-appellee.
Sofie W. Hosford, for respondent-mother-appellant.
JACKSON, Judge.
Respondent appeals from orders entered 17 December 2004
terminating her parental rights to three of her four children.
The instant case marks the third proceeding to terminate
respondent's parental rights to one or all of the children at issue
in this action. In the first proceeding resulting in the
termination of respondent's parental rights to her child Zo. M.,
the termination order was vacated by this Court for lack of subject
matter jurisdiction by In re McKinney, 158 N.C. App. 441, 581
S.E.2d 793 (2003). In the second proceeding which resulted in thetermination of respondent's parental rights to Za. M., the order of
termination was set aside by the district court due to the fact
that a guardian ad litem had not been appointed for respondent.
The instant cases were initiated by the filing of Motions in
the Cause for Termination of Parental Rights 20 October 2003
regarding Zo. M. and Za. M. and the filing of a Motion in the Cause
for Termination of Parental Rights 5 January 2004 with regard to
Jo. M. All three of the motions alleged that respondent was
incapable of providing the proper care and supervision of each
child in question and that she willfully had left the children in
foster care for more than twelve months without showing reasonable
progress within those twelve months to correct the problems that
led to the placement of the children in foster care.
A licensed attorney was appointed guardian ad litem for
respondent 29 May 2003. A pre-trial conference was held, in which
counsel for all parties, respondent, respondent's guardian ad
litem, and the children's guardian ad litem all appeared. The
trial court entered a pre-trial order enumerating the agreements
and stipulations entered into at the conference. These
stipulations included, inter alia, that the hearings on all of the
motions for termination would be consolidated and that testimony
of, and reports submitted by, Dr. Clyde Evely, Dr. David Ziff, and
Ms. Bonnie Ferrell in the previous termination proceedings were
admissible in the instant action and that the testimony and reports
were not prejudicial to respondent. The order also noted that
respondent's attorney was unable to agree to the stipulations asrespondent had not given him the authority to either agree or
disagree. The trial court also denied respondent's attorney's
request to withdraw as counsel in that order.
In addition to the testimony and reports from the earlier
proceedings, petitioner presented the testimony of Dr. Helen
Brantley (“Dr. Brantley”). Dr. Brantley was offered and admitted
as an expert in the area of forensic psychology with respect to
parental competency evaluations and custody evaluations. Dr.
Brantley gave her opinion that, based upon the parental competency
evaluation that she conducted on respondent, she could not see how
respondent could parent her children competently. Petitioner also
submitted Dr. Brantley's report of her evaluation of respondent
into evidence.
Based upon the testimony and reports in the prior proceedings
and the testimony of Dr. Brantley, the trial court made, inter
alia, the following findings of fact:
18. Dr. Ziff's report, which was admitted in
to evidence without objection, indicates that
[respondent's] “prognosis as an effective
parent in the future is poor . . .I do not
believe that we in the mental health [sic]
field have found an effective treatment for
her condition and, regrettably, I expect her
problems to persist indefinitely.” Based, in
part, upon that testimony, this Court finds
that Respondent's mental illness and her
personality disorders are not treatable, and
will render her incapable of providing for the
proper care and supervision of the minor child
for the foreseeable future.
19. Ms. Bonnie Ferrell, a parenting
instructor, worked with [respondent] from
September to November of 2000. Ms. Ferrell,
who taught [respondent] in a parenting class
during that time, decided that [respondent]was unable to attend the class due to her
aggressive outbursts and inability to
participate in a group. After outlining
examples of [respondent's] complete failure to
participate either in the parenting group or
in individual parenting classes, Ms. Ferrell
offered the opinion that [respondent] is not
capable of parenting a child and cannot learn
how to parent a child and the Court so finds.
21. Based on Dr. Brantley's testimony and her
written report, the Court finds that
[respondent] suffers from the following
diagnosis: Axis I, Panic Disorder with
Agoraphobia, Substance Abuse and Depressive
Disorder, NOS; Axis II, Borderline Personality
Disorder; Axis III, Obesity, Multiple
Sclerosis, Asthma and Axis IV, loss of her
child, marital stress, and health and
financial concerns. Dr. Brantley concluded,
based upon her expertise, the test she
completed, the interviews she conducted, the
collateral contacts she made and the records
she reviewed, that [respondent] does not have
the capacity to parent and the Court so finds.
36. The Petitioner has proved by clear, cogent
and convincing evidence that the criteria
exists to terminate the parental rights of
[respondent] and that it is in the best
interest of the juvenile that her rights be
terminated.
Based upon these and other findings of fact, the trial court
concluded that respondent was incapable of providing the proper
care and supervision of the juveniles, that there was a reasonable
probability that such incapability would continue for the
foreseeable future, and that it was in the best interest of all of
the juveniles in question that respondent's parental rights be
terminated.
Respondent's parental rights were terminated as to all
children in question in separate orders entered 17 December 2004. Respondent gave timely notice of appeal from each order 23 December
2004.
Respondent assigns as error: (1) the admission of transcripts
and reports submitted in the two previous termination proceedings
which resulted in the termination of respondents' parental rights
to the same children and which had been subsequently reversed on
appeal; (2) the trial court's conclusion that grounds existed to
terminate respondent's parental rights; and, (3) the trial court's
finding of fact that respondent did not call any witnesses and did
not offer any evidence at the hearing in defense of the petition to
terminate her parental rights.
Respondent first argues that the admission of the transcripts
of the prior hearings and the reports submitted in those hearings
was erroneous as respondent had not yet had a guardian ad litem
appointed on her behalf at those proceedings as required due to the
allegations that she was incompetent. However, an uncontested pre-
trial order indicates that respondent, with the assistance of a
guardian ad litem, stipulated to the admission of these transcripts
and reports. The order also indicates that respondent's attorney
was unable to agree to the stipulations contained in it as
respondent did not give him the authority to agree or disagree.
When petitioner sought to admit the transcripts and reports at
the hearing, respondent's counsel requested that the record reflect
that he was unable to agree to the stipulations. Respondent now
contends that her attorney objected to the admission of the
transcripts and reports at that time. Respondent bases thisassertion on the following exchange between her attorney and the
court:
Mr. Bryan: Let the record reflect, Judge,
that the Order, I believe,
indicates that I did not
consent.
The Court: I think it was that you could
not consent or _
Mr. Bryan: (Interposing) Could not
consent.
The Court: _ or were in a position to _
Mr. Bryan: (Interposing) Object.
The Court: _ object.
Mr. Bryan: Right.
The Court: And that the Court accepted it.
All right.
This exchange does not, however, constitute an objection as
respondent's attorney merely sought to put his inability to agree
or object to the stipulations on record.
“[S]tipulations are judicial admissions and are therefore
binding in every sense, preventing the party who agreed to the
stipulation from introducing evidence to dispute it and relieving
the other party of the necessity of producing evidence to establish
an admitted fact.” In re I.S., 170 N.C. App. 78, 86, 611 S.E.2d
467, 472 (2005) (quoting Thomas v. Poole, 54 N.C. App. 239, 241,
282 S.E.2d 515, 517 (1981), disc. rev. denied, 304 N.C. 733, 287
S.E.2d 902 (1982)). In the instant case, respondent does not
challenge the pre-trial order that she stipulated to the
admissibility of the transcripts and exhibits in question. Further, respondent does not allege that she agreed to these
stipulations without the guidance of her appointed guardian ad
litem. Accordingly, the stipulations regarding the admissibility
of this evidence are binding on respondent. This assignment of
error is overruled.
Respondent next argues that the trial court erred in
concluding that grounds for termination of her parental rights
existed due to a lack of sufficient evidence and findings of fact
to support that conclusion. Our review consists of two stages, 1)
whether the trial court's findings of fact are supported by clear,
cogent and convincing evidence; and 2) whether the findings of fact
that are supported by clear, cogent and convincing evidence support
the trial court's conclusions of law. In re Humphrey, 156 N.C.
App. 533, 539-40, 577 S.E.2d 421, 426 (2003).
“Findings of fact to which a respondent did not object are
conclusive on appeal.” Id. at 540, 577 S.E.2d at 426 (citing In re
Wilkerson, 57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982)).
Respondent specifically challenges only one of the trial court's
findings of fact, namely, that respondent did not present evidence
in defense of the petitions to terminate her parental rights.
Assigning error to a trial court's conclusion of law based upon a
general assertion that the evidence is insufficient to support the
conclusion is not sufficient to preserve the issue of whether the
evidence supports the findings of fact upon which the conclusion is
based. In re J.D.S., 170 N.C. App. 244, 251, 612 S.E.2d 350, 355(2005), cert. denied, 360 N.C. 64, 623 S.E.2d 584 (2005).
Therefore, this assignment of error is overruled.
In her one assignment of error that specifically challenges
the trial court's findings of fact, respondent argues that the
trial court erred in finding that she had not called any witnesses
or offered any evidence at the hearing in defense of the petitions
against her, and that she also had not offered any evidence that
she had made progress or improvement with regard to her ability to
parent the children. The record tended to show, however, that
respondent called one witness, her mother, and testified in her own
behalf at the hearing. Accordingly, this finding of fact is not
supported by clear, cogent, and convincing evidence. This
assignment of error is sustained.
Nonetheless, the trial court's remaining, unchallenged,
findings of fact are conclusive on appeal and are sufficient to
support its conclusion of law that grounds existed to terminate
respondent's parental rights. Consequently, we affirm the
termination of respondent's parental rights.
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30 (e).
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