IN THE MATTER OF:
M.C. & R.C.
Cumberland County
Nos. 02 JT 264;
02 JT 267
Elizabeth Kennedy-Gurnee, for Cumberland County Department of
Social Services, petitioner-appellees.
Nelson Mullins Riley & Scarborough, L.L.P., by Wallace C.
Hollowell, III, for North Carolina Guardian ad Litem,
petitioner-appellees.
Rebekah W. Davis, for respondent-mother-appellants.
Peter Wood, for respondent-father-appellants.
JACKSON, Judge.
Lynda C. (“respondent mother”) and Ray C. (“respondent
father”) appeal the termination of their parental rights to their
minor children, M.C. and R.C. For the reasons stated below, we
affirm the order of the trial court terminating their parental
rights.
R.C. was the fourth child born to respondent mother, the first
to respondent father, while respondent mother was married to herfirst husband. M.C. was respondent mother's seventh child, born of
her third marriage, to respondent father.
The Cumberland County Department of Social Services (“DSS”)
filed a juvenile petition on 29 April 2002, alleging M.C., R.C.,
and five other half-siblings were abused, neglected, and dependent,
as those terms are defined by statute. At the time the petition
was filed, R.C. was six years old, and M.C. was four months old.
After a hearing on the matter held 1 May 2002, non-secure
custody was ordered, placing R.C. and M.C. in the custody of DSS.
The trial court held regular review hearings on the custody matter.
An adjudication hearing was held 28 January 2003 followed by a
disposition hearing on 30 January 2003, finding that both M.C. and
R.C. were abused and neglected as defined by statute, and ordering
legal and physical custody be placed with DSS. Respondents
appealed to this Court the order of abuse and neglect, and the
trial court's placing of custody of M.C. and R.C. with DSS. By
this time, respondent mother was expecting her eighth child.
Respondents worked with DSS to create a case plan, which was
approved 7 March 2003. The plan required that respondents each
complete psychological and psychiatric assessments and follow
through with recommended treatments, participate in parenting
assessments and complete parenting skills classes, and enroll in
and complete domestic violence counseling, anger management
counseling, and marital counseling. In addition, the plan required
respondent father to secure and maintain employment and provide
verification of same, and to submit to random drug screenings andenroll in a substance abuse program. Respondent mother was to
enroll in individual counseling to deal with depression and
relationship problems.
Respondents attempted to enroll in a domestic violence program
but were not accepted into the program because they had already
completed the program twice before. They were instructed to
utilize the techniques they previously had learned. Despite
already having received domestic violence services, the acts of
domestic violence between respondents continued. On 29 March 2003,
respondent father choked respondent mother and threatened to cut
the child from her stomach so that no one could take it.
Respondent mother took out a restraining order against respondent
father, and on 4 April 2003, respondent father was arrested and
subsequently pled guilty to assault on a female on 17 April 2003.
When respondents attempted to obtain marital counseling, they were
informed they could not be counseled together if the restraining
order was still in effect. The counselor also believed respondent
father was under the influence of a substance at that time.
On 3 May 2003, respondents experienced a house fire which was
later determined to be the result of arson. Respondent father was
the prime suspect. In mid-October 2003, respondents were engaged
in a domestic dispute in front of their residence, prompting a
passing police officer to stop and intervene. On 29 October 2003,
the trial court relieved DSS of reunification and visitation
efforts, and allowed DSS to change the placement plan to adoption. Also, between May and November 2003, respondent father had two
positive drug screenings.
A petition to terminate respondents' parental rights to M.C.
and R.C. was filed on 8 April 2004. However, due to the pending
appeal in this Court of the underlying order of abuse and neglect,
the matter was stayed, with regular permanency placement hearings
continuing.
(See footnote 1)
During the time in which respondents' appeal was
pending, there continued to be numerous incidents which were
concerning to DSS. On 30 March 2004, respondent father again had
a positive drug screen, testing positive for marijuana. There was
a report from a neighbor that respondent father slapped respondent
mother in the head. On 1 April 2004, police were called to
respondents' residence to investigate “inappropriate affection”
between respondent mother and a fourteen year old boy.
Respondents' new baby was removed from their custody prior to the
26 April 2004 permanency planning hearing in the instant case.
Respondent father was arrested on 4 June 2004 for assaulting
respondent mother, and was also charged with two counts of
communicating threats, and interfering with emergency
communications. Respondent mother was arrested on 17 June 2004 for
trespassing and communicating a threat. On 21 September 2004, this Court filed its unpublished opinion
in the underlying appeal, upholding the determination of abuse and
neglect by the trial court. The judgment was entered 11 October
2004. A hearing on the termination of parental rights petition was
scheduled for 23 November 2004; however, multiple continuances were
granted over the next several months due to scheduling conflicts,
illness, appointment of a new guardian ad litem for respondent
mother, and respondent father's incarceration. The petition for
terminating respondents' parental rights ultimately was heard 16,
17 and 20 June 2005.
On 1 July 2005, the trial court entered an order terminating
respondents' parental rights as to M.C. and R.C. The trial court
concluded that grounds existed to terminate their parental rights
pursuant to North Carolina General Statutes, sections 7B-
1111(a)(1), (2) and (3). The court further concluded that it was
in the children's best interest that respondents' parental rights
be terminated. From the order terminating their parental rights,
respondents appeal.
North Carolina General Statutes, section 7B-1111 sets forth
the statutory grounds for terminating an individual's parental
rights. We consistently have held that “[a] finding of any one of
the separately enumerated grounds under N.C. Gen. Stat. § 7B-1111
that is supported by clear, cogent, and convincing evidence is
sufficient to terminate.” In re Howell, 161 N.C. App. 650, 656,
589 S.E.2d 157, 160-61 (2003) (citing In re Taylor, 97 N.C. App.
57, 64, 387 S.E.2d 230, 233-34 (1990)); see also In re Humphrey,156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003). “[T]he party
petitioning for the termination must show by clear, cogent, and
convincing evidence that grounds authorizing the termination of
parental rights exist.” In re Young, 346 N.C. 244, 247, 485 S.E.2d
612, 614 (1997). “On appeal, the trial court's decision to
terminate parental rights is reviewed on an abuse of discretion
standard[.]” In re J.L.K., 165 N.C. App. 311, 317, 598 S.E.2d 387,
391 (citing In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659,
662 (2001)), disc. review denied, 359 N.C. 68, 604 S.E.2d 314
(2004). This Court must affirm a trial court's termination of an
individual's parental rights “'where the court's findings of fact
are based upon clear, cogent and convincing evidence and the
findings support the conclusions of law.'” Id. (quoting In re
Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996)).
Both respondents contend the trial court erred in terminating
their parental rights based upon the ground that they “have abused
or neglected the juveniles within the meaning of [N.C. Gen. Stat.
§] 7B-101.” Specifically respondents argue the trial court's
conclusion was not sufficiently supported by the evidence or the
trial court's findings of fact. We disagree.
“The standard of review of a termination of parental rights is
whether the trial court's findings of fact are supported by clear,
cogent, and convincing evidence and whether the findings of fact
support its conclusions of law.” In re J.G.B., ___ N.C. App. ___,
___, 628 S.E.2d 450, 454 (2006) (citing In re Huff, 140 N.C. App.
288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C.374, 547 S.E.2d 9 (2001)). Findings of fact not assigned as error
or argued on appeal are deemed to be supported by sufficient
evidence, and are binding on appeal. N.C. R. App. P. 28(b)(6)
(2006); see also In re Clark, 159 N.C. App. 75, 83 n.5, 582 S.E.2d
657, 662 n.5 (2003) (citing In re Caldwell, 75 N.C. App. 299, 301,
330 S.E.2d 513, 515 (1985)). However, we review a trial court's
conclusions of law de novo. In re D.H., __ N.C. App. __, __, 629
S.E.2d 920, 922 (2006) (quoting Starco, Inc. v. AMG Bonding and
Ins. Services , 124 N.C. App. 332, 336, 477 S.E.2d 211, 215
(1996)).
In his assignments of error, respondent father assigns error
to several of the trial court's findings of fact. However, in his
brief to this court, respondent father fails to present specific
arguments as to any of the findings of fact, and fails to present
argument as to the specific assignment of error concerning the
trial court's findings of fact. Thus, all of the trial court's
findings of fact are binding on appeal as to respondent father.
See N.C. R. App. P. 28(b)(6). Respondent mother assigns error only
to the trial court's findings of fact numbers 12, 15, 17, 19, 20,
and 22. As respondent mother has neither assigned as error nor
presented arguments as to the remaining findings of fact, these
remaining findings of fact are deemed binding upon her on appeal.
See id.
A trial court may terminate parental rights upon a finding
that “[t]he parent has abused or neglected the juvenile. The
juvenile shall be deemed to be abused or neglected if the courtfinds the juvenile to be an abused . . . or a neglected juvenile
within the meaning of G.S. 7B-101.” N.C. Gen. Stat. §
7B-1111(a)(1) (2005). North Carolina General Statutes, section 7B-
101(1) provides that a juvenile is “abused” if the child's parent
“[i]nflicts or allows to be inflicted upon the juvenile a serious
physical injury by other than accidental means; [or] [c]reates or
allows to be created a substantial risk of serious physical injury
to the juvenile by other than accidental means.” N.C. Gen. Stat.
§ 7B-101(1)a, b (2005). A “neglected” juvenile is defined as one
“who does not receive proper care, supervision, or discipline from
the juvenile's parent . . . or who lives in an environment
injurious to the juvenile's welfare . . . .” N.C. Gen. Stat. § 7B-
101(15) (2005).
After listening to the testimony and evidence presented at
respondents' termination of parental rights hearing, the trial
court made the following findings of fact related to the abuse and
neglect of M.C. and R.C.:
3. That the juveniles [R.C. and M.C.] have
been in the continual care of [DSS] since
on or before April 26, 2002 as a result
of a non secure custody order and a
petition alleging abuse, neglect and
dependency.
. . . .
8. That the Respondents Lynda and Ray C.
have abused and neglected the juveniles
within the meaning of [N.C. Gen. Stat. §]
75-101(15) based upon the findings in
[the previous adjudication and
disposition] orders.
9. That the abuse and neglect was one of the
primary reasons for the removal of thechildren from the care, custody and
control of the respondents.
10. That the abuse and neglect included the
infliction of inappropriate discipline
upon the juveniles by the respondents,
the respondents engaging in acts of
domestic violence in the presence of the
juveniles on a regular and frequent basis
and the abuse of illegal drugs by the
respondent Ray C.
. . . .
12. That the respondents have continued to
engage in acts of domestic violence since
the January 28 and 30, 2003 orders of the
court.
. . . .
15. That the domestic violence escalated to
the point that respondent Lynda C. sought
and obtained a domestic violence
protective order against Ray C.
16. That Ray C. subsequently violated the
protective order.
17. That the respondents have engaged in some
counseling services prior to the filing
of the petition but have demonstrated
little if any benefit from said
counseling as evidenced by the continued
acts of violence and aggression following
the adjudication, prior to the filing of
this petition and continuing thereafter.
. . . .
20. That the respondents Ray and Lynda C.
have continued to engage in various acts
of domestic violence since the
adjudication and disposition was entered
in January 28 and 30, 2003 resulting in
the court relieving DSS of reunification
and visitation efforts on or about
October 29, 2003.
21. That respondent Ray C. possessed
marijuana and drug paraphernalia as
recently as February 24, 2005.
We hold that these findings, if supported by clear, cogent and
convincing evidence, will support the trial court's conclusion that
M.C. and R.C. were abused or neglected.
As we previously have noted that respondent father failed to
present arguments challenging the trial court's findings, we hold
the above findings of fact are binding on respondent, and therefore
support the trial court's conclusion of law that M.C. and R.C. were
abused or neglected as to respondent father.
On appeal, respondent mother presents arguments challenging
only findings of fact 12, 15, 17, and 20 of the above findings;
therefore the remaining findings of fact listed above are deemed
binding on respondent mother.
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the trial
as it deems appropriate.” In re Oghenekevebe, 123 N.C. App. 434,
439, 473 S.E.2d 393, 397 (1996) (citing G. R. Little Agency, Inc.
v. Jennings, 88 N.C. App. 107, 112, 362 S.E.2d 807, 811 (1987)).
“'If different inferences may be drawn from the evidence, the trial
judge must determine which inferences shall be drawn and which
shall be rejected.'” In re J.W., K.W., 173 N.C. App. 450, 458, 619
S.E.2d 534, 541 (2005) (quoting In re Gleisner, 141 N.C. App. 475,
480, 539 S.E.2d 362, 365-66 (2000)), aff'd, 360 N.C. 361, 625
S.E.2d 780 (2006) . If the decision is supported by clear, cogent
and convincing evidence, the trial court's findings are binding on
appeal, even if there is evidence to the contrary. Id. Upon a thorough review of the record before us, we hold the
trial court's finding of fact 12 to be supported by sufficient
evidence. The record and transcript contain evidence of an assault
by respondent father upon respondent mother resulting in arrest on
29 March 2003, an altercation between respondents in mid-October
2003 prompting police involvement, a reported assault by respondent
father upon respondent mother in early 2004, an assault by
respondent father upon respondent mother resulting in arrest on 4
June 2004, and respondent mother's communicating threats resulting
in an arrest on 17 June 2004. Although there was some evidence
from which the trial court could have found that the last incident
of domestic violence occurred 4 June 2004, there also was evidence
that it had not. Evidence of additional incidents between
respondents was admitted into evidence, which suggested that the
domestic violence between respondents continued beyond June 2004.
On 18 October 2004, a social worker observed bruises on respondent
mother's upper arms that appeared to be grab marks. On 1 November
2004 respondents arrived separately to a visit with M.C. and R.C.'s
younger sibling. Respondent father was fifteen minutes late, and
appeared nervous when asked about respondent mother. Respondent
mother arrived forty-five minutes late and was very upset with her
husband. Respondents' relationship was marked by repeated
separations and reunifications, and denials that the domestic
violence issues were a problem. Therefore, we hold finding of fact
12 is supported by clear, cogent and convincing evidence. With respect to finding of fact 15, the record reveals that
respondent mother obtained a domestic violence protective order
against respondent father on 4 April 2003. Thus, this finding of
fact is supported by clear, cogent and convincing evidence.
Finding of fact 17 concerns respondents participation in
counseling services prior to the filing of the petition to
terminate their parental rights. Evidence and testimony presented
to the trial court demonstrated that both respondents participated
in some counseling services, however they did not complete the
court ordered marital counseling, and they failed to comply fully
with the court's additional orders regarding psychiatric
evaluations and services. Evidence before the trial court
indicated that despite respondents' participation in counseling,
the incidents of domestic violence continued, and respondent father
continued to have substance abuse problems. Respondents separated
from each other several times as a result of the domestic violence
incidents, only later to reunite. Based upon the evidence before
the trial court, we hold there was clear, cogent and convincing
evidence to support the trial court's finding of fact 17.
Respondent mother contends that these findings 15, 19, and 20,
together with findings 12 and 17, erroneously indicate that
domestic violence was ongoing. She argues that from 4 June 2004
until the hearing on 16 June 2005, there had been no further
instances of domestic violence. As previously stated, evidence was
presented indicating that there were several incidents of domestic
violence occurring after the 28 and 30 January 2003 orders. Basedupon the multiple incidents of domestic violence, we hold finding
of fact 20 is also supported by clear, cogent and convincing
evidence.
In addition to the evidence directly bearing on the trial
court's findings, there was additional evidence from which the
trial court could find that domestic violence continued despite
respondent mother's testimony to the contrary. This evidence
includes the bruises on respondent mother's arms observed on 18
October 2004, the suspicious behavior observed on 1 November 2004
during respondents' visit with another child, and the frequent
separations and reunifications between respondents.
Therefore, as the trial court's findings of fact regarding the
abuse and neglect of M.C. and R.C. are binding on appeal and are
properly supported by the evidence, we hold they in turn support
the trial court's conclusion of law that M.C. and R.C. were abused
or neglected, pursuant to section 7B-1111(a)(1), as to both
respondents. There is substantial evidence in the record which is
clear, cogent and convincing support of the trial court's findings
of fact, which in turn support its conclusion of law. The trial
court, therefore, did not err in concluding that respondents had
abused or neglected M.C. and R.C., and that grounds for the
termination of their parental rights existed. Respondents'
assignments of error are overruled.
Since grounds exist pursuant to section 7B-1111(a)(1) to
support the trial court's order terminating respondents' parental
rights, the remaining grounds found by the trial court to supporttermination of respondents' parent rights need not be reviewed by
the Court. Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34.
Respondents next contend the trial court abused its discretion
in concluding “[t]hat it would be in the best interest of the
juveniles for the parental rights of the respondents to be
terminated.” We find no error.
“'A termination of parental rights proceeding is a two-stage
process.'” In re T.D.P., 164 N.C. App. 287, 288, 595 S.E.2d 735,
736 (2004) (quoting In re Howell, 161 N.C. App. 650, 656, 589
S.E.2d 157, 160 (2003)). First there is an adjudicatory phase,
which is followed by the dispositional phase. See N.C. Gen. Stat.
§§ 7B-1109 to -1110.
During the adjudicatory phase, the court takes
evidence, makes findings of fact, and
determines the existence or nonexistence of
grounds for termination. The burden of proof
is on DSS in this phase, and the court's
findings must be “based on clear, cogent, and
convincing evidence.” Assuming a judicial
finding that a ground for termination exists,
the trial court's decision in the
dispositional phase is discretionary. The
court need not order termination if it further
determines “the best interests of the juvenile
require that the parental rights of the parent
not be terminated.”
In re R.T.W., 359 N.C. 539, 548-49, 614 S.E.2d 489, 495 (2005)
(internal citations omitted).
In the instant case, the trial court found not one, but three
grounds for termination of respondents' parental rights. Upon
finding grounds to support the termination of respondents' parental
rights, the trial court moved to the disposition stage of the
proceeding, and found that termination of the parental rights wasin the children's best interests. However, before making the
determination regarding the children's best interests, the trial
court not only spoke with the children in chambers, but also took
great care in reaching its decision, and in weighing all of the
evidence, including evidence of the changes in respondents'
conditions. In support of the finding regarding the children's
best interests, the trial court found that R.C. continued to suffer
from nightmares about her parents, as a result of the abuse she
suffered while in their care. The trial court heard evidence about
how R.C. was improving in the stable environment of her foster
home, in which she was living with her half-siblings. The trial
court also found that in the eighteen months in which respondent
mother visited with M.C., the child never was able to bond with her
mother, although she was comfortable with other people. Neither
parent was found to have made any progress in demonstrating their
ability to parent either child, and they were found to have made
little, if any, progress in addressing the other issues of concern
including the domestic violence, substance abuse, and housing
issues.
Based upon all of the evidence before the trial court, we hold
the trial court made a well-reasoned decision, and in no way
approached its decision lightly. Thus, we hold the trial court did
not abuse its discretion in finding that it was in M.C. and R.C.'s
best interests that respondents' parental rights be terminated.
Finally, respondent father assigns as error the trial court's
failure to conduct the termination of parental rights hearingwithin ninety days of the filing of the petition as mandated by
statute. We hold respondent father was not prejudiced by the
delay.
“The hearing on the termination of parental rights shall be
conducted . . . no later than 90 days from the filing of the
petition or motion unless the judge pursuant to subsection (d) of
this section orders that it be held at a later time.” N.C. Gen.
Stat. § 7B-1109(a) (2005). Subsection (d) allows for a ninety day
continuance for good cause shown “to receive additional evidence .
. . , to allow the parties to conduct expeditious discovery, or to
receive any other information needed in the best interests of the
juvenile.” N.C. Gen. Stat. § 7B-1109(d) (2005). Continuances
beyond ninety days after the petition is filed “shall be granted
only in extraordinary circumstances when necessary for the proper
administration of justice, and the court shall issue a written
order stating the grounds for granting the continuance.” Id.
The petition to terminate respondents' parental rights was
filed on 8 April 2004. However, the underlying adjudication order
of abuse and neglect was pending appeal in this Court at that time.
See N.C. Gen. Stat. § 7B-1003(b) (2005) (“Pending disposition of an
appeal, unless directed otherwise by an appellate court . . . the
trial court shall: (1) Continue to exercise jurisdiction and
conduct hearings under this Subchapter with the exception of
Article 11 of the General Statutes; and (2) Enter orders affecting
the custody or placement of the juvenile as the court finds to be
in the best interests of the juvenile.”). While the trial courtdid retain jurisdiction to proceed with the termination of parental
rights hearing, per our Supreme Court's holding in In re R.T.W.,
359 N.C. 539, 542, 614 S.E.2d 489, 491 (2005) (“the pending appeal
of a custody order does not deprive a trial court of jurisdiction
over termination proceedings”), the trial court had the discretion
to consider the pending appeal as an extraordinary circumstance
such that a continuance was necessary for the proper administration
of justice. In the next permanency planning placement review order
filed, from the 7 July 2004 hearing, the trial court found as fact
that the case was “currently on Appeal.”
This Court's opinion on the underlying appeal was filed on 21
September 2004, and became final on 11 October 2004. A hearing on
the petition to terminate respondents' parental rights was
scheduled for 23 November 2004; however, several continuances were
granted due to scheduling conflicts, illness, appointment of a new
guardian ad litem for respondent mother, and respondent father's
incarceration. The hearing on the petition for termination of
respondents' parental rights ultimately was heard on 16, 17 and 20
June 2005. The orders granting these various continuances are not
included in the record on appeal. However, this Court recently has
held that even when the ninety day period admittedly was violated,
such violation “need only be reversed when the appellant
demonstrates prejudice as a result of the delay.” In re S.W., __
N.C. App. __, __, 625 S.E.2d 594, 596 (2006).
Respondent father contends the delay denied M.C. and R.C.
permanency, prejudiced the foster parents and family, andcompromised his parental rights. He analogizes his case to In re
L.E.B., K.T.B., 169 N.C. App. 375, 610 S.E.2d 424, disc. review
denied, 359 N.C. 632, 616 S.E.2d 538 (2005), in which this Court
found that all parties were prejudiced due to a delay in the filing
of the termination order. However, in L.E.B., the trial court
already had decided to terminate parental rights; thus, the delay
prevented all parties from moving forward with adoption as that
process could not begin until the trial court entered its order.
The case sub judice is distinguishable in that the delay did
not prevent a court's order from being implemented. If anything,
respondent father benefitted by the delay. It allowed him to argue
that issues of domestic violence had been resolved, in that the 4
June 2004 incident had occurred twelve months prior to the hearing,
while previous incidents of domestic violence were more frequent.
The delay also allowed him additional time to bring himself into
compliance with his case plan. In fact, one continuance was
granted specifically to allow respondent father the opportunity to
be present in court, as he was incarcerated on the day scheduled
for trial. Thus, respondent father has failed to demonstrate that
he was prejudiced by the delay.
Because we find that the trial court's findings of fact were
supported by clear, cogent and convincing evidence and that these
findings supported the conclusions of law, that there was no abuse
of discretion in the trial court's termination of respondents'
parental rights, and that respondents were not prejudiced by the
delay between the filing of the petition and the hearing, we affirmthe trial court's order terminating the parental rights of
respondent mother and respondent father.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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