IN THE MATTER OF A.N.L. Harnett County
No. 03 J 119
E. Marshall Woodall for petitioner-appellee Harnett County
Department of Social Services.
Elizabeth Boone for guardian ad litem.
Jon W. Myers for respondent-appellant.
CALABRIA, Judge.
S.R.S. (“respondent”), the biological mother of A.N.L. (“the
minor child”), appeals from an order terminating her parental
rights to the minor child. We affirm.
The Harnett County Department of Social Services (“D.S.S.”)
became involved with respondent and A.W.L., the minor child's
father, after 15 March 2000 when A.J.L., a sibling of the minor
child, sustained multiple fractures to his skull and right arm. A
physician subsequently diagnosed A.J.L. as a battered child,
suffering from failure to thrive. The district court adjudicated
A.J.L. abused and neglected, removed A.J.L. from the custody of
respondent and A.W.L., allowed D.S.S. to cease reunification
efforts, and permanently placed A.J.L. with a relative. The minor child was subsequently born and lived in the home of
respondent and A.W.L. On 12 May 2003, the minor child was treated
for a “buckle” fracture of her right proximal tibia. D.S.S.
received a report of neglect. As part of its investigation, a
physician examined the minor child and considered respondent's
explanation of the minor child's injury that she had broken her leg
while jumping out of a playpen. The physician's report stated:
It is possible that even if [the minor child]
was not yet walking at the time of her
fracture, she may have been able to pull up
and climb out of her playpen. It is highly
unlikely, however, that this type and location
of fracture would result from [the minor
child] landing on her feet from such a short
distance and in a manner that would be
compatible with her young age and delayed
gross motor development. Due to these
factors, it is highly probable that [the minor
child] was either dropped or slammed down onto
her legs resulting in her proximal tibia
buckle fracture. It is possible that [the
minor child] may have been accidentally
dropped, but the past history of significant
inflicted trauma to her older sibling makes it
very concerning that [the minor child's]
injury may have been non-accidental/inflicted.
Based on this report and other evidence, D.S.S. filed a
juvenile petition, which in addition to referencing the above
incident also alleged drug use and domestic violence within the
household. The trial court granted D.S.S. non-secure custody, and
the parties stipulated, inter alia, that the minor child
is a neglected juvenile in that she lived in
an environment potentially injurious to her
welfare by the fact [A.J.L.] suffered abuse
while living in the home of the parents and
the makeup of the household remained the same
after [the minor child] was born. Neither
parent received any services to alleviate theconditions which led to the removal of
[A.J.L.]
Pursuant to this stipulation and the physician's report, the trial
court adjudicated the minor child neglected. The trial court then
proceeded to a temporary disposition hearing and deferred the final
disposition until it received parental evaluation reports. The
trial court subsequently received respondent's parental evaluation
report, which revealed she suffered from alcohol abuse, post
traumatic stress disorder, adjustment disorder with depression and
personality disorder, and battered women's syndrome. After
receiving the reports, the trial court conducted a disposition
hearing, awarded full custody of the minor child to D.S.S., and
relieved D.S.S. of further efforts to reunite the child with
respondent and A.W.L. D.S.S. subsequently moved to terminate
respondent's and A.W.L.'s parental rights to the minor child. The
trial court granted the motion as to both respondent and A.W.L;
however, only respondent appeals.
On appeal, we initially address respondent's argument that the
trial court erred in failing to comply with the time requirements
set forth in N.C. Gen. Stat. § 7B-1109(e) (2003), which states:
The court shall take evidence, find the facts,
and shall adjudicate the existence or
nonexistence of any of the circumstances set
forth in G.S. 7B-1111 which authorize the
termination of parental rights of the
respondent. The adjudicatory order shall be
reduced to writing, signed, and entered no
later than 30 days following the completion of
the termination of parental rights hearing.
(See footnote 1)
In the case sub judice, the termination of parental rights hearing
ended on 8 October 2004; however, the adjudicatory order was not
entered until 30 November 2004, approximately 53 days later.
Respondent argues that this delay was violative of N.C. Gen. Stat.
§ 7B-1109(e) and that she need not prove prejudice because the
violation of the statute is error per se. A panel of this Court
has recently reaffirmed our holdings that we need not reverse, per
se, for a violation of the statutory timelines; rather, in order to
warrant reversal, respondent must show prejudice resulting from the
delay. In re C.J.B., __ N.C. App. __, __, 614 S.E.2d 368, 369
(2005). Given that respondent has argued no prejudice that
resulted from the delay, we hold this assignment of error is
without merit.
Respondent next argues that the trial court “committed plain
error in admitting prior disposition and permanency planning orders
into evidence when the earlier orders were entered under a lower
evidentiary standard[] than a termination of parental rights
adjudication.” At trial, respondent did not object to the
admission of the prior orders and now attempts to argue that their
admission amounted to plain error. This Court has held that the
plain error doctrine is inapplicable in civil cases. In re L.M.C.,
__ N.C. App. __, __, 613 S.E.2d 256, 257-58 (2005). Accordingly,
this assignment of error is without merit. Respondent next argues that “the trial court substituted
findings from different hearings for its own independent review[,]
depriving [respondent] of the opportunity for a fair hearing.” The
assignments of error that respondent cites as encompassing this
argument merely state that the applicable findings of fact are “not
supported by competent evidence.” These assignments of error are
insufficient to raise respondent's argument. We, therefore, hold
that this issue is beyond the scope of appellate review. See N.C.
R. App. P. 10(a) (2005) (“the scope of review on appeal is confined
to a consideration of those assignments of error set out in the
record on appeal in accordance with this Rule 10”).
Moreover, insofar as respondent argues that “[i]n the present
case D.S.S. presented no evidence from which the trial court could
have independently found these findings,” the trial court did not
err. Our Supreme Court has held that earlier adjudication orders
may be admitted and considered by the trial court in a termination
of parental rights proceeding. In re Ballard, 311 N.C. 708,
713-14, 319 S.E.2d 227, 231 (1984). Furthermore, in the case sub
judice respondent specifically stipulated to the challenged
findings, and the trial court terminated respondent's parental
rights based not only upon neglect but also upon the uncontested
ground that respondent failed to pay a reasonable portion of the
minor child's costs. Accordingly, the trial court did not
impermissibly rely solely upon a prior adjudication of neglect as
a basis for terminating respondent's parental rights. See Matter
of Allred, 122 N.C. App. 561, 564-65, 471 S.E.2d 84, 86 (1996)(“[t]he trial court must make an independent determination of
whether neglect authorizing termination of parental rights exists
at the time of the termination hearing and may not treat a prior
adjudication of neglect as determinative of the ultimate issue”).
This assignment of error is, therefore, without merit.
Respondent also argues that the trial court erred in
concluding that grounds existed to terminate her parental rights
based on neglect. Termination of parental rights involves both an
adjudicatory stage and a dispositional stage. 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 one of the grounds for termination of parental
rights in N.C. Gen. Stat. § 7B-1111 (2005). On appeal from the
adjudicatory stage, we consider whether the trial court's findings
of fact are supported by clear, cogent, and convincing evidence and
whether those findings support its conclusions of law. In re Huff,
140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000).
In the case sub judice, the trial court granted D.S.S.'s
motion to terminate respondent's parental rights based upon two
statutory grounds under N.C. Gen. Stat. § 7B-1111, which states in
pertinent part:
(a) The court may terminate the parental
rights upon a finding of one or more of the
following:
(1) The parent has . . . neglected the
juvenile. The juvenile shall be deemed to be
. . . neglected if the court finds the
juvenile to be . . . a neglected juvenile
within the meaning of G.S. 7B-101. [§ 7B-101
states that a neglected juvenile is 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. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.”]
. . .
(3) The juvenile has been placed in the
custody of a county department or social
services . . . and the parent, for a
continuous period of six months next preceding
the filing of the petition or motion, has
willfully failed for such period to pay a
reasonable portion of the cost of care for the
juvenile although physically and financially
able to do so.
This Court has held a finding of any one of the grounds enumerated
in N.C. Gen. Stat. § 7B-1111 is sufficient to terminate a
respondent's parental rights. In re Yocum, 158 N.C. App. 198, 203,
580 S.E.2d 399, 403 (2003). Although respondent has assigned error
to the trial court's conclusion of law 4, in her brief she argues
that assignment of error only in relation to the trial court's
determination that grounds exist to terminate her parental rights
based on neglect. She raises no argument in opposition to the
trial court's determination that grounds exist to terminate her
parental rights based on her failure to pay a reasonable portion of
the cost of care for the minor child. Therefore, respondent's
assignment of error as it relates to whether the trial court erred
in determining grounds exist to terminate respondent's parentalrights based on her failure to pay a reasonable portion of the
minor child's costs is abandoned pursuant to N.C. R. App. P.
28(b)(6) (2005). Accordingly, this ground for termination of
respondent's parental rights is conclusively established, and we
need not address respondent's assignment of error that the trial
court erred in concluding that grounds exist to terminate her
parental rights based on neglect of the minor child. See In re
S.B.M., __ N.C. App. __, __, 619 S.E.2d 583, 585 (2005).
We next consider respondent's assignment of error that the
trial court abused its discretion in determining that termination
of her parental rights was in the best interests of the minor
child. In the dispositional phase of a termination of parental
rights proceeding, a trial court considers the best interests of a
child. N.C. Gen. Stat. § 7B-1110 (2005). On review from the
dispositional phase, this Court considers whether the trial court
abused its discretion in terminating the appellant's parental
rights. In re Blackburn, 142 N.C. App. at 614, 543 S.E.2d at 911.
The trial court made findings, which we hold are supported by
clear, cogent, and convincing evidence, that the minor child “lived
in an environment potentially injurious to her welfare by the fact
[A.J.L.] suffered abuse while living in the home of the parents and
the makeup of the household remained the same after [the minor
child] was born.” Additionally, the trial court found, also
supported by clear, cogent, and convincing evidence, that
“[n]either parent received any services to alleviate the conditions
which led to the removal of [A.J.L.]” Furthermore, the trial courtmade findings, supported by clear, cogent, and convincing evidence,
that respondent suffers from post traumatic stress disorder,
alcohol abuse, adjustment disorder with depression and personality
disorder, and battered women's syndrome. Based on these and
related findings, we hold that the trial court did not abuse its
discretion in determining that terminating respondent's parental
rights was in the minor child's best interests.
Since grounds existed to terminate respondent's parental
rights based on the unchallenged conclusion that respondent failed
to pay a reasonable portion of the cost of care for the minor child
and that the trial court did not abuse its discretion in
determining that terminating respondent's parental rights was in
the minor child's best interests, we need not address respondent's
other arguments on appeal.
Moreover, since respondent has failed to raise her remaining
assignments of error on appeal, we deem them abandoned pursuant to
N.C. R. App. P. 28(b)(6) (2005).
Affirmed.
Judges BRYANT and JOHN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***