IN THE MATTER OF:
Alamance County
M.G. and Y.G., No. 03 J 270
Minor Children. 03 J 271
Susan L. Dunathan as guardian ad litem.
ELMORE, Judge.
This appeal arises from the district court's decision to
terminate respondent mother's (respondent) parental rights to her
son (M.G.) and to her younger daughter (Y.G.). After careful
review, we affirm the order of the district court.
The minor son M.G. was born in 1999, and the minor daughter
Y.G. was born in 2003. On 5 November 2003, the Burlington police
responded to a report of child abuse at the apartment where
respondent lived. Upon arriving at the home, police found M.G.,
who was four-years-old at the time, covered in over sixty-five U-shaped bruises on his body scattered from his neck to his legs.
The police also found blood on the bed sheets and an electrical
cord with a shape similar to the shape of the bruises on M.G. When
the police arrived at the apartment, respondent, M.G. and Y.G. were
present at the home. The Alamance County Department of Social
Services (ACDSS) received a subsequent report.
Respondent admits to having physically beaten M.G. on multiple
occasions. For instance, she pled guilty to criminal charges
stemming from the 5 November 2003 incident and served a term of
sixteen to thirty-three months in the North Carolina Women's
Correctional Institute. Additionally, respondent admitted to
having hit M.G. in the mouth with a shoe while living at a domestic
violence shelter, an incident that led to a previous report to
ACDSS on 8 August 2003. In total, prior to the instance of abuse
on 5 November 2003, ACDSS had received four reports of respondent
inappropriately disciplining her children.
During the trial court proceedings, Ginger Furmage, the foster
care worker assigned to manage M.G. and Y.G.'s welfare, testified
as to respondent's behavior after the 5 November abuse incident.
Ms. Furmage testified that after ACDSS took the children into
custody, respondent maintained inconsistent contact with the case
workers. According to the record, respondent did contact ACDSS
through April 2004, but then ceased communication until December2004. Thus, despite knowing how to reach ACDSS and being able to
do so from the prison where she was incarcerated, respondent had no
contact with the organization regarding either of her children for
seven months.
Ms. Furmage also testified about respondent's attitude, both
towards ACDSS and towards her abuse of M.G. According to Ms.
Furmage, respondent questioned why M.G. needed counseling after the
abuse and blamed ACDSS for being separated from her children. At
the hearing for termination of her parental rights, respondent
herself testified that she was not aware of the seriousness of the
injuries she inflicted upon her son, despite the fact that she
caused sixty-five bruises on his body and had drawn blood.
ACDSS recommended that respondent undergo psychological
evaluation to assess her parenting skills and abilities, as well as
her psychological well-being. Dr. Maria Lapetina, the licensed
psychologist who assessed respondent, found troubling information
from her evaluation. Dr. Lapetina observed and interviewed
respondent, as well as administered three evaluation instruments.
Because respondent assigns error to the trial court's findings of
fact regarding the results of Dr. Lapetina's evaluation, including
her use of the three instruments, we will address the details of
the evaluation later in this opinion. In brief, Dr. Lapetina
concluded that the risk of re-abuse by respondent is very high. M.G. and Y.G. have lived with their current foster family
since March 2004. The uncontroverted testimony is that, since
living with his foster parents, M.G.'s anxiety and hyperactivity
have decreased. Additionally, M.G.'s school performance has
improved.
Two distinct phases comprise a proceeding for the termination
of parental rights: an adjudicatory stage and a dispositional
stage. In Re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906,
908 (2001). At the adjudicatory stage, a trial court may terminate
rights if it finds one or more of the statutory grounds for
termination are supported by clear and convincing evidence. Id.;
see N.C. Gen. Stat. § 7B-1111(a) (2003) (abuse and/or neglect
included as statutory grounds for termination of parental rights).
When a respondent challenges the sufficiency of the evidence relied
upon by the trial court in terminating the respondent's parental
rights, the standard of review is well-established:
When reviewing an 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. 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 a reasonable doubt required in
criminal cases. If the decision is supported
by such evidence, the district court'sfindings are binding on appeal even if there
is evidence to the contrary.
In re A.D.L., 169 N.C. App. 701, 710, 612 S.E.2d 639, 645
(2005) (internal citations and quotations omitted).
Once the trial court finds at least one ground for terminating
parental rights supported by clear, cogent and convincing evidence,
the trial court moves to the dispositional phase. Blackburn, 142
N.C. App. at 610, 543 S.E.2d at 908. “[At this phase], the court
shall issue an order terminating the parental rights unless it
further determines that the best interests of the child require
otherwise.” Id.; see N.C. Gen. Stat. § 7B-1110(a) (2003). The
appellate standard of review for the dispositional stage of the
trial court proceedings is abuse of discretion. In Re Anderson,
151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
As a preliminary matter, respondent contends that the trial
court erred by finding ten particular items of fact relating to the
results of Dr. Lapetina's evaluation of respondent. Respondent
contends that there was insufficient evidence to support the
following facts: (1) Respondent's prognosis is poor since she lacks
understanding of childcare and child development; (2) Dr. Lapetina
administered three instruments to evaluate respondent; (3)
Respondent scored in the 99th percentile on the child abuse
potential instrument; (4) Respondent scored high on the parentingstress index, which indicates she perceives M.G. as difficult to
parent; (5) Respondent suffers from severe explosive anger; (6)
Respondent cannot control her anger and is not sensitive to her
children's needs; (7) Respondent indicates a poor self-image and
does not understand her responsibility in her relationship with
M.G.; (8) Respondent's responses and unaffected attitude indicate
she is not attached to her children; (9) Respondent's responses on
the incomplete sentence instrument reveal that she has no insight
as to the pain she inflicted on M.G. and does not understand the
need to change herself; and (10) Respondent suffers from lack of
impulse control and ability to bond with her children.
This assignment of error is without merit. Essentially,
respondent argues that the trial court unflinchingly accepted Dr.
Lapetina's methodology relating to the three instruments
administered. In North Carolina:
A party believing the methodology used by a
witness is not valid or, if valid, is not
properly applied to the facts at issue, has an
obligation to object to its admission. If a
timely objection is not lodged at trial, it
cannot be argued on appeal that the trial
court erred in relying on this evidence . . .
.
Walter v. Walter, 149 N.C. App. 723, 733, 561 S.E.2d 571, 578
(2002) (citations omitted); see also N.C.R. App. P. 10(b)(1) (2005)
(“In order to preserve a question for appellate review, a partymust have presented to the trial court a timely request, objection
or motion, stating the specific grounds for the ruling the party
desired the court to make . . . .”). Yet respondent concedes that
no party objected to Dr. Lupetina being tendered as an expert in
the field of psychology and psychological evaluations.
Additionally, the record contains no objection to the methodology
that Dr. Lupetina employed. Because respondent did not object to
the methodology at trial, the trial court rightly considered Dr.
Lapetina's testimony about the results of the instruments as
persuasive evidence on which to base its findings of fact. Any
additional concerns about Dr. Lapetina's testimony go to the weight
the trial court should have given the evidence. See Howerton v.
Arai Helmet, Ltd., 358 N.C. 440, 461, 597 S.E.2d 674, 688 (2004)
(holding that once a court determines scientific area of qualified
expert is reliable, then remaining issues concerning quality of
conclusions go to the weight of the evidence rather than
admissibility).
In weighing the evidence, the trial court in this case had
clear, cogent and convincing evidence to support the fact that
respondent's “prognosis is very poor” and her risk of abusing the
children in the future is high. Dr. Lapetina, a psychologist who
has practiced in North Carolina for twenty-one years, testified
extensively as to the various instruments used to evaluaterespondent's parenting skills and psychological state.
Additionally, Dr. Lapetina based her opinions not only on the
results of the three instruments administered, but also on her
interview of respondent, on her observations of respondent's
behavior during the interviews, and on the records she received
from the Department of Social Services. Based on her evaluation,
she testified that respondent suffered from anger, depression,
isolation, and inappropriate reaction to her children's needs.
Such testimony provides clear, cogent and convincing evidence to
support the findings of fact relating to the strong probability of
future abuse by respondent.
Respondent also assigns errors to the trial court's findings
of fact collectively related to respondent's inability and/or
unwillingness to address the issues which led to the removal of the
children. At a termination proceeding, the trial court must
consider evidence of the history of neglect or abuse by the parent,
as well as any change in the circumstances that might bode well for
the parent-child relationship. In Re Shermer, 156 N.C. App. 281,
286, 576 S.E.2d 403, 407 (2003). In considering changed
circumstances, the court looks for positive response which improves
the situation. “Implicit in the meaning of positive response is
that not only must positive efforts be made towards improving the
situation, but that these efforts are obtaining or have obtainedpositive results.” In Re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d
200, 225 (1995) (emphasis added).
The evidence on the record is mixed as to respondent's
willingness and ability to change her abusive behavior. For
example, respondent demonstrated a willingness to attend stress and
anger management classes while in prison. Additionally, respondent
complied with her case plan by attending parenting classes, taking
English classes, and undergoing mental health evaluations.
Nevertheless, strong evidence exists that these efforts had not
obtained “positive results” towards improving the situation. To
begin with, Ms. Furmage indicated that respondent often blamed
ACDSS for her children being in foster care. Respondent also
questioned why M.G. received counseling after the abuse, even
though social workers explained the boy's need for therapy. Based
on the mental evaluation of respondent, Dr. Lapetina expressed
serious doubt as to whether respondent would be able to implement
the classes into her daily routine with the children. Indeed,
respondent does not contest the fact that she refused services from
ACDSS on previous occasions. Additionally, Ms. Furmage testified
that while in prison respondent did not contact ACDSS about the
children for seven months, despite having the option of calling
collect and having interpreter services available. Finally, even
at trial, respondent insisted that ACDSS had never offered herparenting classes or other assistance beyond offering her money to
leave North Carolina permanently.
Such evidence is clear, cogent and convincing to support the
findings of fact that (1) Respondent is in denial about the extent
and gravity of the abuse and neglect she inflicted; (2)
Respondent's behavior is indicative of an inability/unwillingness
to address issues that led to the children's removal; (3)
Respondent did not contact ACDSS for seven months, despite having
access to collect calling and interpreter services; and (4)
Respondent did not make reasonable efforts to work towards
resolving the issues which led to the children being taken from
her. Because clear, cogent and convincing evidence supports these
findings of fact, they are binding upon appeal, even though some
evidence exists to the contrary. See In re A.D.L., 169 N.C. App.
at 710, 612 S.E.2d at 645.
Clear, cogent and convincing evidence also supports the
findings of fact that: (1) Respondent cannot currently provide for
the care of the juveniles because of her incarceration; and (2)
Respondent cannot likely provide for her children in the future
because she has no solid plans for her children's care upon her
deportation to Mexico. Respondent's own testimony strongly
supports these findings of fact, given her statement that she did
not know where she would live upon deportation. Respondent toldsocial workers that she did not want her sister in Mexico to adopt
the children because her sister misspent money and abused M.G.
previously; yet respondent could not provide a location for the
relative whom she preferred to adopt the children. An absence of
even so much as an address at which the children would live
strongly supports the facts relating to respondent's inability to
provide for the children.
In our review of the adjudicatory stage we must address
whether the trial court made sufficient findings of fact, supported
by clear, cogent and convincing evidence, that one of the statutory
grounds was met for the termination of respondent's parental
rights. A court may terminate a parent's rights to his or her
children if the parent of the juvenile has abused or neglected the
juvenile. See N.C. Gen. Stat. § 7B-1111(a)(1) (2003).
Additionally, to terminate a parent's rights on these grounds, the
court must find that there is a probability of repetition of the
offending conduct if the child returns to the parent. In Re Pope,
144 N.C. App. 32, 36-37, 547 S.E.2d 153, 156-57 (2001).
Respondent contends that the trial court made flawed
conclusions of law regarding the status of the juveniles by not
explicitly finding whether M.G. and Y.G. qualified as abused and/or
neglected juveniles under the statute. In its findings, the trial
court mimicked the language of the statute and stated: “the parentof the juvenile has abused or neglected the juvenile . . . .”
Although a trial court must state a ground for termination of
parental rights, typographical errors and errors of draftsmanship
amount only to harmless error if the evidence strongly supports one
of the grounds for termination. See In Re Bluebird, 105 N.C. App.
42, 51, 411 S.E.2d 820, 825 (1992). In this case, the presence of
“or” rather than “and” does not obviate the findings of fact that
strongly support that M.G. was an “abused juvenile” and that Y.G.
fell under North Carolina's definition of a “neglected juvenile.”
Alone, the undisputed findings of fact in the record
sufficiently support the conclusion of law that M.G. was an “abused
juvenile” under the statute. See N.C. Gen. Stat. § 7B-101(1)
(2003) (defining an “abused juvenile” as “a juvenile . . . whose
parent . . . [i]nflicts or allows to be inflicted upon the juvenile
a serious physical injury by other than accidental means.”). As
stated previously, respondent admitted to two instances of
physically beating M.G., one of which was so severe as to send
respondent to prison for felony child abuse. Moreover, at least
four other recorded instances of abuse exist involving respondent
and her son, including her own admission that she struck her son in
the mouth with a shoe. Such instances certainly qualify as
inflicting physical injury on the juvenile by other than accidental
means. The trial court's findings of fact also strongly support the
conclusion of law that Y.G. is a “neglected juvenile.” See id. §
7B-101(15) (2003) (defining a “neglected juvenile” as a juvenile
“who lives in an environment injurious to the juvenile's welfare .
. . .”). The North Carolina legislature has stated explicitly:
In determining whether a juvenile is a
neglected juvenile, it is relevant whether
that juvenile lives in a home where another
juvenile . . . has been subjected to abuse or
neglect by an adult who regularly lives in the
home.
Id. We have previously discussed respondent's abuse of M.G. while
she, M.G. and Y.G. lived together. The trial court may use such
evidence to determine the status of Y.G. See id. Moreover, the
trial court found that Y.G. remained present in the apartment
during the 5 November thrashing of M.G., indicating a potentially
dangerous environment for Y.G. Respondent attempts to assign error
to this finding of fact. However, such an attempt is without
merit. When the police arrived at respondent's apartment, the
mother and two children were all present at the house.
Furthermore, respondent testified at trial that she began beating
M.G. when she found him near Y.G., suggesting that Y.G. was
present. Finally, no evidence exists in the record that
contradicts the contention that Y.G. was present during the
incident. Thus, clear, cogent and convincing evidence supports thefinding of fact that Y.G. was present in the home during a violent
incident of child abuse and that Y.G. was at risk of being harmed.
However, in determining whether the trial court erred in
concluding that statutory grounds exist to terminate respondent's
parental rights, we must inquire as to whether the findings of fact
support the conclusion of law that there is a probability of
repetition if the child is returned to the custody of the parent.
See In Re Pope, 144 N.C. App. at 36-37, 547 S.E.2d at 156-57.
Respondent contends that the trial court applied the wrong standard
in determining whether she was likely to repeat her abusive
parenting behavior. This argument, too, must fail. The substitute
of the word “possibility” rather than “probability” is harmless
error when the trial court applied the correct statute and clear,
cogent and convincing evidence supported the correct statutory
standard. See id. at 38, 547 S.E.2d at 157.
A plethora of evidence exists on the record suggesting a high
probability that respondent would be unable to appropriately
respond to her children's behavior and would continue to abuse M.G.
and neglect Y.G. in the future. As previously detailed, respondent
abused M.G. on repeated occasions. Additionally, the court can use
expert psychological testimony to find a parent incapable of
improving the conditions that led to the child's removal from the
home. See In Re Allred, 122 N.C. App. 561, 567-568, 471 S.E.2d 84,87 (1996) (relying on a clinical psychologist's evaluations
regarding a mother's inability to change her approach to child
rearing to terminate parental rights). Dr. Lapetina's
psychological evaluations put respondent in the ninety-ninth
percentile of probability of abusing the juveniles in the future.
Dr. Lapetina expressed concern that respondent, who suffered from
severe explosive anger, would be unable to control her temper when
the children behaved age-appropriately in the future. Finally,
respondent suffered from a lack of parental attachment, depression,
and an inability to read and understand the needs of the children.
These psychological issues confirm that the likelihood of
repetition of abuse was very high, and the trial court could
rightly consider them in determining whether to terminate parental
rights. Moreover, the fact that respondent failed to contact ACDSS
for seven months regarding her children presents evidence of
respondent's detachment from her children. In combination, the
evidence of respondent's prior abuse and neglect of her children,
coupled with the psychologist's testimony about her likelihood of
recidivism, provide clear, cogent and convincing evidence to
support the findings of fact that the risk of repetition is high
because her ability to change her parenting style is low.
Finally, respondent argues that the trial court abused its
discretion by terminating the rights of respondent to the minorchildren. This argument fails because the findings of fact,
supported by clear, cogent and convincing evidence, lead to the
conclusion of law that “it is in the best interest of the minor
children that the parental rights of [respondent] be terminated and
that the children's custody . . . be continued with the Alamance
County Department of Social Services.”
The trial court found the following findings of fact, all of
which are contested by respondent: (1) that a permanent plan for
the children's care is necessary for the physical and mental well-
being of the children, and that the permanent plan should begin
with the termination of respondent's parental rights; (2) that the
juveniles have reasonable prospects for adoption; and (3) that the
plan of adoption is in the best interest of the juveniles. Despite
respondent's arguments to the contrary, clear, cogent and
convincing evidence supports all three findings of fact. For
instance, respondent does not contest that the children are
comfortable with their foster parents; that the foster parents have
a proper home and the financial means to support the children
emotionally and developmentally; that the children refer to their
foster parents as “mommy” and “poppy;” and that placement of the
children with their uncle is not in the best interests of the
children. Such uncontested evidence supports the findings of fact
that the juveniles have reasonable prospects for adoption and thatthe adoption would be in the best interest of the children.
Additionally, the children's foster parents' statement that they
love the children and wish to adopt them, further supports the fact
that the children have reasonable prospects for adoption.
Moreover, courts can consider evidence presented during the
adjudicatory stage of the termination proceeding in determining
what measures are in the best interest of the child. In Re
Blackburn, 142 N.C. App. at 163, 543 S.E.2d at 910. As previously
discussed, the evidence during the adjudicatory stage demonstrated
that respondent had abused and neglected her children, thus
allowing termination of respondent's parental rights. The evidence
also showed respondent's anger and stress problems, her lack of
progress in her parenting skills, and the strong likelihood that
respondent would abuse her children in the future. Testimony,
including that of respondent, showed that the trial court
considered other placement options for M.G. and Y.G. However,
evidence showed that such options might cause significant problems.
Respondent's brother, who lives in North Carolina, told ACDSS that
he could not care for the children. Moreover, the only located
relative who could adopt Y.G. and M.G. had allegedly abused M.G. on
a previous occasion; the locations of other relatives were unknown
both to respondent and to the case workers. This evidence supports
the finding of fact that the best interest of the children requirethe termination of respondent's parental rights and the institution
of adoption proceedings.
The trial court in this case did not abuse its discretion in
terminating respondent's parental rights. This Court has
previously held that a trial court did not abuse its discretion in
factually similar cases. See, e.g., In Re V.L.B., 168 N.C. App.
679, 686-87, 608 S.E.2d 787, 792 (2005). In In Re V.L.B., we
reviewed the trial court's determination that the best interest of
the children in the case required the termination of the mother's
rights. Id. In reviewing the decision for abuse of discretion, we
held that the trial court did not abuse its discretion when it
terminated the respondent's rights to her children after
considering the children's positive response to foster care; the
respondent's history of mental problems that interfered with her
parenting, including anxiety, severe anger and depression; and the
respondent's ability to understand and change the conditions that
led to her children's removal. Id. Similarly, after considering
M.G. and Y.G.'s positive response to foster care, Dr. Lapetina's
evaluation of respondent's mental health, and respondent's
testimony and behavior since the 5 November 2003 incident, the
trial court concluded that the children's best interest would be
served by terminating respondent's rights.
Affirmed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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