IN THE MATTER OF Y.Q.M., Sampson County
A minor child No. 00 J 29
Law Office of Benjamin R. Warrick, by Corinne A. Railey, for
petitioner-appellee Sampson County Department of Social
Manning Fulton & Skinner, P.A., by S. Nicole Taylor, for petitioner-appellee Guardian ad Litem.
Winifred H. Dillon, for respondent-appellant Shanita Fryar.
Respondent appeals from the trial court's amended judgment
terminating her parental rights to the minor child, Y.Q.M., who was
born on 26 March 1998. The Sampson County Department of Social
Services (DSS) filed a petition on 12 May 2000, alleging that
Y.Q.M. was a neglected juvenile. The petition alleged that
respondent was hearing voices which "[told] her to hurt people[,]"
and that she had expressed her willingness to harm Y.Q.M. if the
voices told her to do so. It was further alleged that respondent
"hit [Y.Q.M.] in the stomach with her fist recently knocking her
down." By order entered 12 May 2000, the trial court grantednonsecure custody to DSS, which placed Y.Q.M. in foster care. Upon
respondent's admission to the petition's allegations, the trial
court entered an adjudication of neglect on 28 June 2000,
maintaining DSS's custody of Y.Q.M.
In a review order filed 30 April 2001, the trial court found that respondent had failed to obtain mental health counseling as recommended by her psychological evaluation and had not found stable housing. The trial court noted that, during a weekend visitation with respondent, Y.Q.M. "suffered from a spanking or a hitting in the buttocks areas by some unknown person, which caused marks shaped like a hand to be left on the child and bruising[.]" The trial court ceased respondent's weekend visitations with Y.Q.M. but allowed supervised visitations at DSS offices.
The trial court ordered on 29 October 2001 that respondent's weekend visitations with Y.Q.M. be resumed with a goal of returning Y.Q.M. to respondent's physical custody. The trial court's order further contemplated that, "assuming physical placement goes well, legal custody should be delivered to [respondent] after 3 months." DSS placed Y.Q.M. in respondent's physical custody on 25 January 2002. In a review order entered 18 April 2002, however, the trial court found that respondent "has yet to obtain a stable place to live[,]" and respondent is "currently residing with her grandmother and has a third child due in August." The trial court concluded "[t]hat physical placement with [respondent] shall continue but [respondent] must continue with progress towards stability." DSS retained legal custody of Y.Q.M. DSS was unable to locate respondent or Y.Q.M. for a period of time following the 18 April 2002 order. DSS removed Y.Q.M. from respondent's physical custody and placed Y.Q.M. back in foster care on 26 September 2002. On motion by DSS, the trial court entered a review order on 17 October 2002, which changed the permanent plan from reunification to termination of respondent's parental rights. The trial court found that respondent had received no treatment at Duplin-Sampson Mental Health since February of 2002, and had failed to attend her scheduled appointments on 3 May 2002, 13 May 2002, 10 June 2002, 26 July 2002, and 10 September 2002. The trial court also noted respondent's admission that "she [was] living with other people at this time and [had] no job and gave birth to a son on July 23, 2002." DSS filed a petition to terminate respondent's parental rights to Y.Q.M. on 12 June 2003, alleging as grounds for termination that respondent "has been adjudicated to have neglected [Y.Q.M.] and . . . there is good cause to believe that clear, cogent and convincing evidence exists to support that such neglect would be repetitious and ongoing[,]" see N.C. Gen. Stat. § 7B-1111(a)(1) (2005), and that respondent "willfully left [Y.Q.M.] in foster care placement outside the home for more than 12 months without showing to the satisfaction of the Court that reasonable progress has been made to correct the conditions which led to the removal of [Y.Q.M.,]" see N.C. Gen. Stat. § 7B-1111(a)(2) (2005). Respondent filed an answer to the petition admitting the grounds for termination alleged therein but denying the allegation that termination of her parental rights was in the best interests ofY.Q.M.
At the beginning of the 9 September 2004 termination hearing, respondent's counsel reiterated respondent's admission to the two grounds for termination alleged by DSS in its petition, as follows:
COURT: What grounds [for termination] do you allege?
[COUNSEL FOR DSS]: Yes, Your Honor, pursuant to . . . [N.C.G.S. §] 7B-1111 . . . . We're alleging grounds that there was an adjudication of neglect . . . and good cause to believe that . . . such neglect would be repetitious and ongoing, that was admitted. Additionally, we alleged that [Y.Q.M.] has been left outside of the home for twelve months in addition to the neglect and that also was admitted in reply to the termination --
COURT: All the grounds that you alleged --?
[COUNSEL FOR DSS]: Have been admitted except that it is not in the best interest of [Y.Q.M.] for parental rights to be terminated.
COURT: Do you agree with that, [counsel]?
[COUNSEL FOR RESPONDENT]: Yeah I agree with that part.
COURT: So in that case we can proceed with the best interest of [Y.Q.M.] today.
[COUNSEL FOR DSS]: Your Honor, we ask that based on those pleadings, we can . . . find those grounds [for termination]? Based on those pleadings?
COURT: All right.
A DSS caseworker testified that Y.Q.M. had been in DSS custody since May of 2000 and was currently in an adoptive foster placement. She noted Y.Q.M.'s behavioral problems had subsided following the placement and that Y.Q.M. was receiving therapy andmedication for oppositional behaviors and hyperactivity. The caseworker characterized the adoptive foster placement as a "[v]ery good home" which was "better and safer" for Y.Q.M. than living with respondent. She opined that termination of respondent's parental rights was in Y.Q.M.'s best interest. The caseworker further testified that respondent had been allowed supervised visitation with Y.Q.M. but had "never called and requested any visitation" since Y.Q.M. was removed from respondent's home in September of 2002. Respondent stopped going to mental health treatment "a couple of years ago[.]" On cross-examination, the caseworker acknowledged respondent's completion of parenting and anger management classes, which led to Y.Q.M.'s return to respondent's home on 25 January 2002. Y.Q.M. was removed from respondent's home in September of 2002, based on respondent's failure to maintain stable housing and the inability of DSS to locate respondent and Y.Q.M.
Y.Q.M.'s foster mother testified that she began caring for Y.Q.M. when Y.Q.M. was two years old, and that Y.Q.M. was now six years old and in the first grade. She testified that Y.Q.M. was "pretty much an 'A' student" and that she was having success in addressing Y.Q.M.'s behavioral problems with therapy. The foster mother testified she and her husband had been married for thirty-two years and had five children in their home, who were "very close" to each other. The foster mother testified she stayed at home with the children while her husband worked. She described Y.Q.M. as "a very loving child" who "demands a lot of attention and. . . gets it." The foster mother stated she and her husband wished to adopt Y.Q.M.
In its amended judgment terminating respondent's parental rights, the trial court found, inter alia, that Y.Q.M. was adjudicated a neglected juvenile on 13 June 2000, and "has been placed in a foster home care and [has been a] ward of the Court since May 12, 2000 with the exception of a short period of time between January, 2002 and September, 2002 when [Y.Q.M.] was returned to [respondent][.]" The trial court further found that respondent had not made contact with Y.Q.M. since September of 2002, despite being allowed supervised visitation, and that respondent "failed to complete her case plan in that she has failed to follow-up with her mental health assessment and evaluation." Finally, the trial court found respondent "filed a verified answer to the Petition to Terminate Parental Rights admitting the allegations" regarding the grounds for termination but denying that termination was in Y.Q.M.'s best interest. Based on its findings, the trial court concluded "by clear, cogent and convincing evidence" as follows:
1. That [respondent] has neglected [Y.Q.M.] and [Y.Q.M.] was so decreed to be neglected on June 13, 2000, and clear, cogent and convincing evidence exists to support that such neglect would [be] repetitious and ongoing.
2. That no evidence has been presented that it is in the best interest of [Y.Q.M.] to forego termination of parental rights.
3. That it is in the best interest of [Y.Q.M.] that parental rights be terminated.
4. That [respondent] has willfully left [Y.Q.M.] in foster care outside the home 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 [Y.Q.M.].
Respondent first challenges, as not supported by the evidence, the trial court's following finding of fact:
That [respondent] filed a verified answer to the Petition to Terminate Parental Rights admitting the allegations contained in Paragraph . . . [VII] . . . .
She contends that, "despite her trial counsel's apparent concession . . . at the hearing," Paragraph VII did not allege facts that could be "admitted or denied, but instead constitute[d] a prayer for relief" by DSS. Therefore, respondent's admission amounted only to an acknowledgment that DSS was seeking to terminate her parental rights. In the alternative, respondent claims the trial court erred by considering her answer, because it was not signed by her attorney as required by N.C. Gen. Stat. § 1A-1, Rule 11(a).
We find no merit to this contention. Paragraph VII of the termination petition alleged as follows:
That [DSS] desires that the Court terminate the parental right[s] of the Respondent . . . to [Y.Q.M.] pursuant to N.C.G.S. Section 7B- 1111 based on the following grounds:
(1) N.C.G.S. Section 7B-1111(a)(1) in that the Respondent has been adjudicated to have neglected [Y.Q.M.] and given the lack of progress of Respondent . . ., there is good cause to believe that clear, cogent and convincing evidence exists to support that such neglect would be repetitious and ongoing; and (2) N.C.G.S. Section 7B-1111(a)(2) in that Respondent . . . has willfully left [Y.Q.M.] in foster care placement outside the home for more than 12 months without showing to the satisfaction of the Court that reasonable progress has been made to correct the conditions which led to the removal of [Y.Q.M.] in that Respondent . . . has made little or any progress towards the case plan for reunification with [Y.Q.M.] such that in an Order of the District Court of Sampson County dated October 15, 2002, the Court ordered that termination of parental rights proceeding[s] begin.
Paragraph VII does assert DSS's desire to terminate respondent's parental rights; however, it further alleges the existence of two specific factual bases for termination. It alleges grounds for termination under N.C.G.S. § 7B-1111(a)(1), "in that . . . Respondent has been adjudicated to have neglected [Y.Q.M.] and given the lack of progress of Respondent . . ., there is good cause to believe that clear, cogent and convincing evidence exists to support that such neglect would be repetitious and ongoing[.]" It further alleges grounds for termination under N.C.G.S. § 7B- 1111(a)(2), "in that Respondent . . . has willfully left [Y.Q.M.] in foster care placement outside the home for more than 12 months without showing to the satisfaction of the Court that reasonable progress has been made to correct the conditions which led to the removal of [Y.Q.M.][.]" We note that respondent stated in her answer: "The allegations contained in Paragraph VII of the Petition are admitted." (emphasis added). Moreover, respondent's counsel confirmed the nature of this admission by conceding the existence of the alleged grounds for termination at the beginning of the termination hearing. The trial court's finding accurately depictsrespondent's admission to the allegations in Paragraph VII and is thus fully supported by the evidence of record.
To the extent respondent relies upon her attorney's failure to sign her answer to challenge the trial court's finding, we conclude that her failure to object to a defect appearing on the face of her own pleading waived any objection thereto. See Whitehurst v. Corey, 88 N.C. App. 746, 748, 364 S.E.2d 728, 729-30 (1988). By verifying her answer, respondent invited the trial court to consider the pleading and is estopped to contest its validity on appeal. See Brittain v. Blankenship, 244 N.C. 518, 521, 94 S.E.2d 489, 491 (1956).
Respondent next challenges the trial court's conclusions that grounds for termination existed under N.C.G.S. § 7B-1111(a)(1) and (2). She claims these conclusions are not supported by clear, cogent and convincing evidence in the record or by the findings of fact in the termination order. Because the statute requires a determination by the trial court of a likelihood of future neglect by the parent or of the parent's failure to make reasonable progress, respondent insists "that stipulations or admissions by the parties that the requisite grounds exist cannot satisfy the statutory requirements."
An admission by a party in a responsive pleading is a judicial admission and is thus "conclusive and binding upon the parties." Rich, Rich & Nance v. Carolina Constr. Corp., 153 N.C. App. 149, 153, 570 S.E.2d 212, 215 (2002). "The effect of a judicial admission is to establish the fact for the purposes of the case andto eliminate it entirely from the issues to be tried." Rollins v. Miller Roofing Co., 55 N.C. App. 158, 162, 284 S.E.2d 697, 700 (1981). In this case, respondent admitted in her answer that grounds for termination existed under N.C.G.S. § 7B-1111(a)(1) and (2), as alleged by DSS in Paragraph VII of its petition. Her counsel reiterated respondent's admission to these grounds in open court at the beginning of the termination hearing. In light of respondent's judicial admission on the issue, there was "no need for further findings of fact on the issue of whether grounds existed to terminate respondent's parental rights." In re I.S., 170 N.C. App. 78, 86, 611 S.E.2d 467, 472 (2005); cf. In re Faircloth, 153 N.C. App. 565, 576-77, 571 S.E.2d 65, 73 (2002) (finding that the respondent's admission to one of the alleged grounds for termination rendered harmless any error in the trial court's findings of additional grounds).
Notwithstanding her admission to the grounds for termination alleged in the petition, respondent further claims the trial court violated N.C. Gen. Stat. § 7B-1109(e) by failing to hold an adjudicatory hearing. In her assignments of error, however, respondent makes no reference to the trial court's supposed non- compliance with N.C. Gen. Stat. § 7B-1109(e). She challenges the trial court's conclusions that grounds for termination existed under N.C.G.S. § 7B-1111(a)(1) and (2) solely on the ground that they are "not supported by the trial court's findings of fact or by the evidence." Because the issue was not raised by respondent in her assignments of error in the record on appeal, any argumentregarding the trial court's adherence to statutory procedures is not properly before this Court. See N.C.R. App. P. 10(a) (limiting scope of appellate review to "those assignments of error set out in the record on appeal in accordance with this Rule 10"). We note that, although a proceeding to terminate parental rights entails both adjudicatory and dispositional stages, there is no requirement that the trial court bifurcate the proceedings into separate hearings. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5-6, disc. review denied, 358 N.C. 543, 599 S.E.2d 42 (2004). In this case, the trial court received evidence from the parties beyond respondent's admissions and entered separate conclusions that grounds for termination were shown "by clear, cogent and convincing evidence" and that termination was in Y.Q.M.'s best interests. Accordingly, we find no error.
The record on appeal includes additional assignments of error not addressed by respondent in her brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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