An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 December 2006
IN THE MATTER OF:
J.McK., No. 04 J 92
Appeal by respondent from judgment entered 2 August 2005 by
Judge Joseph M. Buckner in Orange County District Court. Heard in
the Court of Appeals 18 October 2006.
Northern Blue Law Firm, by Carol Holcomb, and Samantha H.
Cabe, for petitioner-appellee Orange County Department of
Terry F. Rose for respondent-appellant.
Epting & Hackney, by Karen Davidson, for Guardian ad Litem.
Respondent mother appeals from an order terminating her
parental rights in the minor child Jack.
(See footnote 1)
Jack, born on 18 June 2004, was respondent's fourth child. At
the time of his birth, respondent's other three children were in
foster care. Based on a petition alleging that he was dependent,
Jack was placed in the custody of DSS when he was four days old.
In an order entered 17 December 2004 the trial court adjudicated
Jack dependent and continued his custody with petitioner. At a
permanency planning hearing a month later, the court ordered thatthe plan for Jack be adoption, and directed DSS to initiate
proceedings for termination of parental rights. DSS moved for
termination of on 14 February 2005, alleging that respondent was
incapable of caring for Jack.
In June 2005 a hearing was conducted on petitioner's motion
for termination of parental rights. Tina Weiler, the DSS social
worker assigned to this case, testified for petitioner. Her
testimony, in conjunction with documentary evidence such as court
reports and transcripts of earlier proceedings, tended to show the
following: (1) respondent has a long history of mental illness, and
was diagnosed as suffering from severe personality disorder, panic
disorder with agoraphobia, substance abuse and depressive disorder,
and borderline personality disorder; (2) respondent has a long
history of substance abuse and tested positive for cocaine and
marijuana as recently as the month just before the termination of
parental rights hearing; (3) respondent's other three children were
in DSS custody, and in the opinion of several mental health
professionals, respondent is highly unlikely to be able to care for
her children in the foreseeable future; (4) two weeks before the
termination of parental rights hearing respondent threatened to
kill all the DSS personnel involved in the case; (5) respondent
previously drank alcohol during her pregnancies, purportedly to
make her children retarded and thereby make it harder for DSS to
find adoptive homes for them; (6) respondent suffers from asthma,
obesity, and multiple sclerosis, and, because she did not get
proper treatment for MS, her physical health deteriorated to thepoint where she must use a wheelchair or walker most of the time;
(7) when respondent visited with Jack, she did not attend to his
needs and the child did not want her to hold him; (8) respondent
displayed bad judgment in her interactions with her children; and
(9) there was a history of domestic violence in respondent's
marriage. The social worker testified that, in her opinion,
respondent was incapable of caring for Jack.
Following the hearing the trial court on 2 August 2005 entered
an order terminating respondent's parental rights in Jack. From
this order respondent timely appealed.
Standard of Review
A termination of parental rights proceeding involves two
separate analytical phases: an adjudicatory stage and a
dispositional stage. A different standard of review applies to
each step. At the adjudicatory stage, 'the party petitioning for
the termination must show by clear, cogent, and convincing evidence
that grounds authorizing the termination of parental rights
exist.' In re L.A.B., __ N.C. App. __, __, 631 S.E.2d 61, 64
(2006) (citing In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 908 (2001), and quoting In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997)).
'A finding of any one of the grounds enumerated [in section
7B-1111], if supported by competent evidence, is sufficient to
support a termination.' After making a determination that one of
the grounds for termination exists, the trial court proceeds to
disposition and considers the best interests of the child. AChild's Hope, LLC v. Doe, __ N.C. App. __, __, 630 S.E.2d 673, 677
(2006) (quoting In re J.L.K., 165 N.C. App. 311, 317, 598 S.E.2d
387, 391, disc. review denied, 359 N.C. 68, 604 S.E.2d 314 (2004))
(internal citation omitted). At the dispositional stage, 'the
court shall issue an order terminating the parental rights, unless
it . . . determines that the best interests of the child require
otherwise.' In re V.L.B., 168 N.C. App. 679, 684, 608 S.E.2d 787,
790-91, disc. review denied, 359 N.C. 633, 614 S.E.2d 924 (2005)
(quoting In re Matherly, 149 N.C. App. 452, 454, 562 S.E.2d 15, 17
(2002)). On appeal, '[w]e review the trial court's decision to
terminate parental rights for abuse of discretion.' In re V.L.B.,
id. at 689, 608 S.E.2d at 791 (quoting In re Anderson, 151 N.C.
App. 94, 98, 564 S.E.2d 599, 602 (2002)). Further:
this Court 'should affirm the trial court
where the court's findings of fact are based
upon clear, cogent and convincing evidence and
the findings support the conclusions of law.'
Moreover, findings of fact are conclusive on
appeal if they are supported by 'ample,
competent evidence,' even if there is evidence
to the contrary. If unchallenged on appeal,
findings of fact 'are deemed supported by
competent evidence' and are binding upon this
Court. 'So long as the findings of fact
support a conclusion based on [the statute],
the order terminating parental rights must be
In re J.M.W., __ N.C. App. __, __, 635 S.E.2d 916, __ (2006)
(quoting In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86
(1996), In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317,
320 (1988), In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337,
340 (2003), and In re Oghenekevebe, 123 N.C. App. 434, 436, 473
S.E.2d 393, 395-96 (1996)).
With regards to the trial court's findings of fact numbers six
through nine, numbers eleven through twenty, and number twenty-
three, respondent argues that the court erred by making a finding
that certain evidence was admitted without objection. Respondent
asserts that each of these findings of fact are erroneous, on the
grounds that she in fact objected to the admission of various
transcripts, court reports, and other written materials pertaining
to this case. Respondent fails to articulate how this inaccuracy,
assuming it exists, was prejudicial. Accordingly, the pertinent
assignments of error are overruled.
In a related argument, respondent raises the issue of the
admissibility of certain documents. At the hearing, the trial
court admitted prior court reports and other documents from DSS
case files pertinent to this case. Respondent's counsel made a
perfunctory objection for the record to the admission of the
prior reports and documents because they would be prejudicial.
However, he failed to state a legal basis, theory, or authority for
exclusion of the documents. Under N.C.R. App. P. 10(b)(1), to
preserve a question for appellate review, a party must 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 if the specific grounds were not apparent from the
context. We conclude that respondent failed to preserve for
appellate review the substantive issue of the admissibility of thechallenged transcripts and court reports. Accordingly, we do not
reach this issue.
Respondent also argues that the record includes certain pieces
of evidence that were favorable to her. However, it is a truism
that [f]indings for which there exists competent evidence are
binding on appeal, even where there is evidence to the contrary.
In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166, 169 (2002)
(citation omitted). Respondent argues further that the trial court
based its ruling solely on the contents of prior orders and
reports. This assertion does not account for the testimony of the
DSS social worker assigned to the case. This assignment of error
Respondent argues next that the trial court erred by
concluding that it was in the best interests of Jack for
respondent's parental rights to be terminated. Respondent contends
that, because no evidence was offered about Jack's situation or
status at the time of the hearing, the trial court had no way to
evaluate his best interests. We disagree.
Respondent's assertion does not account for evidence before
the trial court indicating that Jack is a beautiful two-month old
baby. He is alert and developing appropriately despite early pre-
natal exposure to illicit substances. . . . His foster parents are
diligent in ensuring that he receives appropriate wellness care.
He recently started day care and has adjusted nicely to this
setting. Moreover, the standard for appellate review of thetrial court's decision to terminate parental rights is abuse of
discretion. In re M.N.C.
, __ N.C. App. __, __, 625 S.E.2d 627,
633 (2006) (citation omitted).
Based on our review of this record
and the trial court's order, we discern no abuse of discretion in
the trial court's decision to terminate respondent's parental
We have reviewed respondent's remaining contentions and find
them to be without merit. For the reasons discussed above, we
conclude the trial court's order must be
Judges TYSON and BYRANT concur.
Report per Rule 30(e).
To preserve the privacy of the minor child, we refer to him
throughout this opinion by the pseudonym Jack.
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