IN THE MATTER OF B.M.C. Buncombe County
No. 04 J 209
Matthew J. Middleton for petitioner-appellee Buncombe County
Department of Social Services.
Charlotte Gail Blake for respondent-appellant Sara G.
CALABRIA, Judge.
Respondent-mother Sara G.(“Sara”) appeals from an order of the
trial court, terminating her parental rights to B.M.C. (“the minor
child”) on grounds that the minor child was neglected and there was
a likelihood of repetition of neglect. We affirm.
On 23 July 2003 the Buncombe County Department of Social
Services (“D.S.S.”) received a report alleging that Michael “Mick”
Mannion (“Mannion”), Sara's boyfriend, had improperly disciplined
the minor child, leaving the child with bruises on her arms and
legs. Sara signed a safety plan providing that Mannion would have
no contact with the minor child and stating that Mannion had left
Sara's home. Then, on 30 September 2003, D.S.S. received a second
report that Mannion had beaten the minor child, again leaving
bruises. The report further stated that Mannion was abusingpainkillers and alcohol. The case was closed on 8 March 2004 after
Sara and Mannion substantially complied with their respective case
plans. D.S.S. again got involved several months later after
receiving a Child Protective Services (“CPS”) report alleging that
Mannion had come home drunk and jerked the minor child out of bed
and shoved her while verbally abusing Sara. A subsequent
investigation found neglect in that Mannion had injured the minor
child, physically abused Sara, and admitted to drug abuse.
During the course of its investigation, D.S.S. received
another report on 25 August 2004 that the minor child “had been
seen engaged in sexualized behaviors, specifically 'humping' a
stuffed animal.” The minor child disclosed that she learned the
behavior from Mannion and later told D.S.S. that Mannion had
touched her inappropriately. A medical examination was conducted,
and the child's condition was consistent with vaginal penetration.
The examination concluded that the minor child had been sexually
abused. Again, Sara agreed to a safety plan that would keep the
minor child away from Mannion. Then on 16 October 2004, D.S.S.
received a report alleging that Sara had violated the safety plans
by allowing Mannion to have contact with the minor child. The
minor child reported sleeping in the same bed with Mannion and Sara
on the night of 17 October 2004.
Then, on 18 October 2004, Sara fled a meeting that was being
held to determine an appropriate placement for the minor child.
Sara took the minor child with her and their whereabouts were
unknown. Two days later Sara and the minor child were located atthe Apple Blossom Motel where they were living with Mannion. A
placement meeting was held that day, and Sara stated that she would
drop a pending domestic violence restraining order against Mannion
because she knew he would never hit her again. Sara stated that
she did not believe Mannion had sexually abused the minor child.
Mannion admitted blacking Sara's eye and admitted that he was
abusing cocaine. He further admitted having regular contact with
the minor child. The following day, on 21 October 2004, D.S.S.
obtained non-secure custody of the minor child.
On 9 May 2005, D.S.S. filed a petition alleging grounds
existed to terminate the parental rights of Sara and Robert C.
(“Robert”), the biological parents of the minor child. The
petition alleged the minor child was adjudicated neglected and
suffered physical and sexual abuse by repeated exposure to Mannion.
The petition further alleged that both parents had willfully
abandoned the minor child and failed to pay a reasonable portion of
the cost of care for the minor child. Sara answered the petition.
Robert did not file an answer or any other responsive pleading and
he is not a party to this appeal.
In July 2005, at the termination hearing in Buncombe County
District Court, the trial court found, inter alia, that Sara had a
history of untreated substance abuse, that she exposed the minor
child to physical and sexual abuse by Mannion, and that she
consistently violated various safety plans designed by D.S.S. to
keep the minor child safe and protected from Mannion. The courtnoted that the petition by D.S.S. was a culmination of events,
stating that D.S.S. “has a long history with this family.”
Based in part on Findings of Fact 18-23, which are
uncontested, the trial court concluded in the adjudicatory phase
that grounds existed to terminate Sara's parental rights since she
had neglected the minor child in the past and there was a
likelihood of repetition of neglect if the minor child was returned
to her care and custody in that the respondent had not corrected
the conditions that led to the removal of the minor child from her
care and custody. Following the adjudicatory phase, the trial
court moved to the dispositional phase and determined that it was
in the minor child's best interests to terminate the rights of both
parents. From that order, Sara appeals.
On appeal, Sara argues that the trial court erred in
concluding that her parental rights should be terminated based on
neglect. Sara initially argues that she timely and substantially
complied with court-ordered services and that insufficient evidence
exists to support the trial court's findings and conclusions that
grounds exist to terminate her parental rights. Termination of
parental rights is a two-step process that requires this Court to
apply two separate standards of review. There is an adjudicatory
phase, governed by N.C. Gen. Stat. . 7B-1109(e) (2005), followed by
a dispositional phase, governed by N.C. Gen. Stat. . 7B-1110
(2005). Findings made by the trial court in the adjudicatory phase
must be supported by clear, cogent, and convincing evidence, and
the findings must support a conclusion that at least one statutoryground for termination of parental rights exists. In re Shermer,
156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). “Clear, cogent
and convincing evidence describes an evidentiary standard stricter
than a preponderance of the evidence, but less stringent than proof
beyond a reasonable doubt.” The N.C. State Bar v. Sheffield, 73
N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985). In the
dispositional phase, the trial court considers the best interests
of the child. We review this determination for an abuse of
discretion. Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407.
Reversal for abuse of discretion is limited to instances where the
appellant can show the judge's decision is “manifestly unsupported
by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63
(1980).
Sara challenges several findings of fact, arguing that they
are not supported by clear, cogent, and convincing evidence.
Specifically, Sara points to Findings of Fact 29, 34, and 35. Sara
first objects to Finding 35, which states in relevant part:
[Sara] has neglected the minor child, as
specified above, and there is a reasonable
probability that she would continue to neglect
the minor child if she were placed back in her
care in that she has not corrected those
conditions that brought the minor child into
the [D.S.S.]'s custody. She has a history of
untreated substance abuse, and has maintained
a relationship with [Mannion] who has
physically abused her and has physically and
sexually abused the minor child, although she
has stated that they are currently separated.
. . . [Sara] had failed to take advantage of
services offered, and for the services she has
completed, she has shown no improvement in her
parenting skills or her ability to protect the
minor child. . . . [Sara]'s compliance with
the court's orders were not timely and she hasfailed to substantially comply with many of
the court's orders for services that were
necessary for reunification.
This finding is supported by clear, cogent, and convincing evidence
since there was unchallenged evidence that Sara had neglected the
minor child in the past by violating safety agreements with D.S.S.
and repeatedly subjecting the minor child to Mannion's abuse. Sara
does not challenge the trial court's Findings 18-23 on appeal, thus
they are binding. “Where no exception
(See footnote 1)
is taken to a finding of
fact by the trial court, the finding is presumed to be supported by
competent evidence and is binding on appeal.” Koufman v. Koufman,
330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These findings
establish that she entered into various safety agreements with
D.S.S., violated the agreements, and continued to expose the minor
child to Mannion. The unchallenged findings further establish Sara
fled with the minor child from the 18 October 2004 D.S.S. staffing
to determine the minor child's placement, and that she abused
drugs.
At the time Sara's parental rights were terminated, the trial
court also found that she had obtained a substance abuse assessment
but had not undergone the 20-30 hours of counseling recommended.
She testified that her parenting classes were not helpful, raising
the possibility that she would not change her approach to raising
the minor child. Further, the record shows Sara was given anopportunity to regain custody of the minor child by following
recommendations D.S.S. gave her in November 2004. These
recommendations formed the basis of the trial court's 21 February
2005 order, which required Sara to: get a substance abuse
assessment and obtain any necessary treatment, attend domestic
violence counseling, obtain a psychological assessment, obtain and
maintain stable housing, attend parenting classes, attend treatment
team meetings, and regularly call the social worker to report her
progress. As previously stated, Sara failed to obtain her required
substance abuse counseling. She waited until June to obtain her
substance abuse assessment and waited until July to obtain her
psychological assessment. Sara argues that she was not given
sufficient time to complete these services since the 21 February
2005 order was not mailed to her attorney until 22 March 2005.
However, Sara was in court with her attorney during the 21 February
hearing and received notice of the order at that time. The fact
that Sara waited until June to begin taking appropriate steps to
comply with the court's order provides clear, cogent, and
convincing evidence to support the trial court's findings that she
failed to take advantage of D.S.S. recommendations and failed to
timely and substantially comply with the court order. Accordingly,
this assignment of error is overruled.
Sara next objects to Finding of Fact 29, which states:
[Sara], in her testimony, blamed [Mannion] for
all of her problems[;] specifically she blamed
him for abusing her and the minor child.
[Sara] testified a number of times that she
was angry that [Mannion] had caused her all of
these problems, but that he was not being heldresponsible and she had lost everything
because of him, citing specifically that she
lost a “trailer full of furniture.” [Sara] did
not exhibit any understanding that her
decisions to remain with [Mannion] and her
substance abuse problems contributed to the
reason the minor child was removed from her
care and custody.
At the termination hearing, Sara testified, “I have lost
everything because of [Mannion], and that's including my daughter.”
She further testified that she did not understand why Gail Azar, a
counselor treating the minor child, recommended the child not be in
contact with Sara since Mannion was no longer around. This serves
as clear, cogent, and convincing evidence supporting the trial
court's conclusion that Sara did not “exhibit any understanding
that her decisions to remain with Mr. Mannion and her substance
abuse problems contributed to the reason the minor child was
removed from her care and custody.” Thus, we hold this assignment
of error is without merit.
Sara next objects to Finding of Fact 34, which relates to
statements made by her to Dr. Michael Grandis, a psychologist who
had performed an evaluation on Sara on 7 July 2005. That finding
states, in relevant part:
34. . . . Further, [Sara] stated in the
psychological evaluation that she was unaware
that the minor child had been sexually abused
by [Mannion] until after the minor child was
placed in foster care. [Sara] also denied
during the psychological evaluation that there
had been [any] domestic violence between her
and [Mannion] when they lived together. Since
the psychological evaluation was done on July
7, 2005, or eleven days prior to this hearing,
the fact that [Sara] is denying factual
information in this case indicates that [Sara]
has failed to correct the conditions that ledto the removal of the minor child from
[Sara]'s care and custody, and indicates that
[Sara] is unable to provide minimally
appropriate care for the minor child, or that
she would be able to provide for the care of
the minor child in a safe manner.
Sara's claim of error with respect to Finding 34 is
contradicted by her testimony under oath during the termination of
parental rights proceedings. During the proceedings, she testified
in the following manner regarding a child medical evaluation
conducted on 15 September 2004:
Q . . .[A]t that point in time, she did
make statements that [Mannion], who she
refers to as “Daddy,” hit you; that he
touches her PP; that she exhibited how he
touched her PP, well, with his hands,
maybe putting PP on her PP as she called
it; isn't that correct?
A That's correct.
Q You were aware of that?
A Yes I was.
D.S.S. did not take custody of the minor child until 21 October
2004, more than one month after the medical evaluation where Sara
admittedly learned of the minor child's suffering sexual abuse by
Mannion. Sara's testimony itself provides clear, cogent, and
convincing evidence sufficient to support the trial court's
finding.
Since we have determined that the challenged findings are
supported by clear, cogent, and convincing evidence, we next
determine whether these findings support the trial court's
conclusion that Sara neglected the minor child. North Carolina
General Statute . 7B-101(15)(2005) defines a “neglected juvenile”
as: A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
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. . . .
Id. A trial court may consider a prior adjudication of neglect
when ruling on a later motion to terminate parental rights, but a
prior adjudication, standing alone, will not suffice when the
natural parent has been deprived of custody of the child for a
significant period of time prior to the termination hearing. In re
Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). In such
a case, the trial court “must also consider any evidence of changed
conditions in light of the evidence of prior neglect and the
probability of a repetition of neglect.” Id., 311 N.C. at 715, 319
S.E.2d at 232.
The trial court's findings in the case sub judice establish
that Sara violated numerous safety plans with D.S.S. and
continually exposed her child to Mannion, despite knowledge that he
had physically and sexually abused the minor child. They further
show that Sara, after she was deprived of custody of the minor
child, did not comply with D.S.S. recommendations and only
belatedly began to comply with a court order requiring her to take
steps to improve her parenting skills to ensure her child's safety.
We hold these findings support the trial court's conclusion that
the minor child should be adjudicated neglected.
Since Sara has not challenged the trial court's dispositional
order, we need not review it here. Sara has failed to argue herremaining assignments of error on appeal, and we deem them
abandoned pursuant to N.C. R. App. P. 28(b)(6) (2006).
Affirmed.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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