An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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:
Z.P.S. & A.M.S.,
No. 04 J 76, 77
Appeal by respondent-appellant from order entered 17 October
2005 by Judge Robert M. Brady in Burke County District Court.
Heard in the Court of Appeals 19 October 2006.
Stephen M. Schoeberle for petitioner-appellee Burke County
Department of Social Services.
Mary R. McKay for petitioner-appellee Guardian ad litem.
Winifred H. Dillon for respondent-appellant.
Respondent-mother (respondent) appeals from an order
terminating her parental rights to the minor children, Z.P.S. and
A.M.S. For the reasons discussed herein, we affirm.
On 10 April 2004, Burke County Department of Social Services
(DSS) received a report that four-month-old Z.P.S. had suffered
serious physical injuries inconsistent with father's explanation
that Z.P.S. had fallen out of a car seat.
On 16 April 2004, DSS was granted non-secure custody of Z.P.S.
and A.M.S., and both children were placed with the same foster
family. On 21 April 2004, DSS filed a juvenile petition alleging
abuse and neglect of the minor children, Z.P.S. and A.M.S. Thecourt held an adjudication hearing on 27 May 2004, followed by an
order entered 8 June 2004, adjudicating Z.P.S. and A.M.S. neglected
juveniles. The court found that the following allegations in the
petition were true: [Z.P.S.] received multiple bruises to his
face, chest and back, a subdural hematoma to the right side of his
head, and fractures to his legs while in his parents' care[.] The
parents did not controvert these allegations. The court also found
that the injuries he received were not consistent with the
parents' explanation that he fell off of a couch in an infant car
carrier onto the floor[,] and that [A.M.S.] resides in the same
home where [Z.P.S.] received those injuries. The court ordered
the parents to maintain stable living arrangements and employment,
participate in parenting and anger management classes, and receive
psychological evaluations and any recommended treatment.
At respondents request, the court entered an order on 25
August 2004 appointing a guardian ad litem for respondent.
On 6 January 2005, the court held a review hearing, followed
by an order entered 11 January 2005, finding that [respondent's]
psychological evaluation . . . revealed high levels of depression
and stress and an elevated risk of child abuse. (emphasis added)
The court also found:
Both parents reported a history of domestic
violence including verbal abuse, threats and
physical altercations, including that [father]
. . . struck [respondent] while she was
pregnant. [Respondent] also reported that
[father] had held a gun to her head.
On 11 January 2005, the court entered an order ceasing
reunification efforts with both parents, again finding that therespondent's psychological evaluation . . . revealed high levels
of depression and stress and an elevated risk of child abuse. The
court entered an order on 18 February 2005 making adoption the
permanent plan for Z.P.S. and A.M.S.
On 12 April 2005, father relinquished his parental rights to
the minor children, Z.P.S. and A.M.S.
On 21 April 2005, DSS filed a motion to terminate parental
rights, alleging that grounds for termination of parental rights
existed under N.C. Gen. Stat. .. 7B-1111(a)(1), (a)(2) and (a)(6).
On 13 October 2005, the court entered an order terminating the
parental rights of respondent. From this order, respondent
In her first argument, respondent contends that the trial
court erred in concluding that grounds for termination existed
because the trial court's findings of fact were not supported by
clear, cogent and convincing evidence, and the findings of fact did
not support the trial court's conclusions of law. We disagree.
A termination of parental rights proceeding is conducted in
two phases: (1) adjudication and (2) disposition. See In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In
the adjudication phase, the petitioner has the burden of proving by
clear, cogent, and convincing evidence that one or more of the
statutory grounds for termination under N.C. Gen. Stat. §
7B-1111(a) exists. Id. If a petitioner meets its burden of
proving one or more statutory grounds for termination, the trialcourt then moves to the disposition phase where it must decide
whether termination is in the child's best interests. Id. The
standard of review of the adjudication phase of 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. See In re
Oghenekevebe, 123 N.C. App. 434, 439-41, 473 S.E.2d 393, 397-99
Initially, we observe that the following pertinent findings of
fact, contributing to the establishment of grounds for termination
pursuant to N.C. Gen. Stat. . 7B-1111(a)(1) are unchallenged, and
therefore, binding on appeal. See In re Moore, 306 N.C. 394, 404,
293 S.E.2d 127, 133 (1982).
6. On May 27, 2004, the Court adjudicated
the minor children to be neglected based
upon the facts that on or about April 10,
2004, [Z.P.S.] received multiple bruises
to his face, chest and back, a subdural
hematoma to the right side of his head,
and fractures to his legs while in his
parents' care; that the injuries were not
consistent with his parents' explanation
that he fell off of a couch in an infant
carrier onto a floor; and that [A.M.S.]
resided in the same home where [Z.P.S.]
received those injuries. . . . (emphasis
8. Dr. [Wellser] observed that, during the
clinical interview, . . . [that
respondent] report[ed] significant
difficulties in certain life areas.
Psychologically, she presented as a
depressed woman with a poor sense of
identity. She had experienced the impact
of traumatic events with the development
and/or exacerbation of irrational fears,
feelings of helplessness, rumination and
worry. She reported feelings ofbitterness, suspiciousness, unhappiness
and moodiness. She also reported
feelings of hostility and apprehension
and has had thoughts of death and
suicide, although she denied any current
thoughts or desires to harm herself. She
endorsed test items that indicated real
difficulties in her ability to feel
closeness to her children and she did not
express confidence in her ability to care
adequately for them. Her test responses
were similar [to] other respondents who
may be excessively punitive and rigid
toward their children, and demonstrating
an array of personal and interpersonal
characteristics that are similar to the
characteristics of known physical child
abusers, indicating an increased risk of
child abuse. (emphasis added)
9. As a result of the evaluation, Dr.
[Wellser] recommended that Ms. Hyatt
receive thorough and comprehensive
psychological intervention to help reduce
her depression and modify her negative
sense of herself and her negative
attitude toward parenting. He recommended
that such intervention not simply be
directed to providing skills such as
parenting skills or anger management
In her brief, respondent challenges the following pertinent
findings of fact, with regard to grounds for termination under N.C.
Gen. Stat. . 7B-1111(a)(1), arguing that they are not supported by
clear, cogent and convincing evidence:
7. Ms. Hyatt was evaluated by Richard
[Wellser], Ph.D., psychologist, on April
22, 26 and 28, 2004. The report of such
evaluation is dated September 15, 2004,
and specifically incorporated herein by
reference. Ms. Hyatt was diagnosed with
major depressive disorder and borderline
personality disorder or post-traumatic
stress disorder. Dr. [Wellser] found that
Ms. Hyatt had an elevated abuse scale
indicating an increased risk of physical
child abuse, which the Court finds to beof particular concern, in light of the
physical injuries that [Z.P.S.] received
while in his parents' care. Dr. [Wellser]
also found that Ms. Hyatt had a high
degree of personal distress and personal
adjustment problems with high levels of
anxiety, depression and loss of
behavioral and emotional control. . . .
11. The sessions that Ms. Hyatt has attended
and is currently attending at the Family
Guidance Center do not qualify as the
thorough and comprehensive psychological
intervention recommended by Dr.
[Wellser], but they are intervention
simply directed to providing skills. Ms.
Hyatt has not received any intervention
recommended by Dr. [Wellser] to deal with
her major depressive disorder and
borderline personality disorder or
post-traumatic stress disorder. As a
result, she remains at increased risk for
physical child abuse. . . .
We first consider whether the above findings of fact
challenged by respondent regarding the grounds for termination
under N.C. Gen. Stat. . 7B-1111(a)(1) are supported by clear,
cogent and convincing evidence. We hold that they are.
Respondent specifically contends that the following portion of
finding of fact, number seven, is not supported by clear, cogent
and convincing evidence: Ms. Hyatt was diagnosed with major
depressive disorder and borderline personality disorder or post-
traumatic stress disorder. This argument is unsubstantiated by
the record. Dr. Richard Welser, former chief psychologist for the
general psychiatry division of Broughton Hospital and an expert in
clinical psychology, evaluated respondent and testified at the
termination proceeding that his informal diagnosis of respondent
was an Axis I diagnosis of Major Depressive Disorder and possiblyan Axis II [diagnosis of]. . . Borderline Personality Disorder.
However, Dr. Wellser explained that the second diagnosis
oftentimes . . . seems to resolve to an Axis I diagnosis of Post
Traumatic Stress Disorder. In her brief, respondent quibbles
between the terms formal diagnosis and informal diagnosis, but
the trial court made no such distinction. We conclude that
evidence supports the trial court's finding of fact, number seven,
that Dr. Wellser diagnosed respondent with the aforementioned
Respondent next contends that the trial court's finding of
fact, number eleven, that Ms. Hyatt remained at an increased risk
for physical child abuse, was not supported by clear, cogent and
convincing evidence. At the termination hearing, Dr. Wellser
stated that respondent had a tendency to be punitive[,] observing
that she had periods of time where she was very upset[,] . . .
very distraught and certainly . . . not exhibiting good self-
control. Dr. Wellser testified that respondent may be [unable]
to deal with all the chaos that children provide[,] and may
respond to those situations . . . punitive[ly][,] with
excessive and corporal punishment[s][.] Dr. Wellser explained
that her punitive response would be something that she would have
learned, probably, from her family of origin or the style they
dealt with issues with children[,] recalling that punitive
measures were used in [respondent's] family when she was growing
up. [O]f course, Dr. Wellser said, [this history] presented
itself in her child discipline. With regard to whether respondent could provide the children
with proper care, both at the time of the initial evaluation and at
the time of the termination proceedings, Dr. Wellser testified that
when he initially evaluated her, it was not appropriate for the
children to be placed with [respondent]. Dr. Wellser further
acknowledged that [i]f her issues [were] not appropriately
treated, there would be a reasonable probability that her
incapability to properly care for the children will [continue in
the] foreseeable future[.]
After thorough review of the record, we conclude that clear,
cogent and convincing evidence supports findings of fact seven and
eleven. See Williams v. Insurance Co., 288 N.C. 338, 342, 218
S.E.2d 368, 371 (1975) (stating that the court's findings of fact
. . . are conclusive on appeal if there is evidence to support
them, even though the evidence might sustain findings to the
Respondent next argues that the following conclusion of law is
not supported by the findings of fact. We disagree.
3. Sufficient grounds exist pursuant to
N.C.G.S. .. 7B-111 l(a)(l), (a)(2) and
(a)(6) for the termination of the
parental rights of Monica Lorene Poarch
in that she has neglected the minor
children; in that she willfully has left
the minor children in foster care 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 the minor children; and in that she is
incapable of providing proper care and
supervision for the minor children, such
that they are dependent within themeaning of N.C.G.S. . 7B-101, and there
is a reasonable probability that such
incapability will continue for the
The trial court expressly based its judgment on three of the
enumerated grounds: N.C. Gen. Stat. . 7B-1111(a)(1), (a)(2), and
(a)(6), the first of which provides that the court may terminate a
parent's parental rights where:
(1) The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
N.C. Gen. Stat. . 7B-101 provides the definition of neglected
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or 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. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
When determining whether statutory grounds exist for
termination under N.C. Gen. Stat. . 7B-1111(a)(1), a trial court
may consider prior adjudications of neglect but they will rarely
be sufficient, standing alone, to support a termination of parental
rights, since the petitioner must establish that neglect exists atthe time of the hearing. In re Pierce, 146 N.C. App. 641, 651,
554 S.E.2d 25, 31 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002).
Our Supreme Court reasoned, however, that in some cases it would be
almost impossible to terminate parental rights on neglect grounds
if termination . . . [could] be based only upon evidence of events
occurring after a prior adjudication of neglect which resulted in
removal of the child from the custody of the parents. In re
Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 232 (1984) (emphasis
added). Therefore, in addition to considering evidence of neglect
by the parent prior to losing custody of a child, the court must
also consider evidence of changed conditions . . . in light of the
history of neglect by the parent, and the probability of a
repetition of neglect. Id. The court may terminate parental
rights, even if there is no evidence of neglect at the time of the
termination proceedings, if (1) there is a showing of a past
adjudication of neglect and (2) the trial court finds by clear and
convincing evidence a probability of repetition of neglect if the
juvenile were returned to the parent. In re Pope, 144 N.C. App.
32, 37, 547 S.E.2d 153, 156 (2001) (citing Ballard, 311 N.C. at
716, 319 S.E.2d at 232).
The trial court's findings of fact clearly support its
conclusion of law that grounds existed to terminate respondent's
under N.C. Gen. Stat. § 7B-1111(a)(1). Therefore,
we need not address the remaining grounds found by the court. See
Moore at 404, 293 S.E.2d at 132-33.
In her second argument, respondent contends that the trial
court erred in terminating respondent's parental rights because
termination was not in the best interests of the children. We
Once petitioner has met its burden of proof at the
adjudication stage, the court then moves to the disposition stage,
where the court's decision to terminate the parental rights is
discretionary. In re Montgomery
, 311 N.C. 101, 110, 316 S.E.2d
246, 252 (1984).
The court must decide whether termination is in
the child's best interests. See Blackburn
at 610, 543 S.E.2d at
908. Our review of the trial court's best interests
determination is under an abuse of discretion standard. In re
, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
In the instant case, the trial court found the following:
The minor children have resided in the same
foster-to-adopt placement since being placed
in the Department's custody on April 16, 2004.
They are bonded to their foster parents who
want to adopt them should they become free for
adoption. [Z.P.S] has had surgery to correct a
problem with his urethra, and [A.M.S.] has
been diagnosed with acid reflux. Both of them
receive the services of an occupational
therapist. All of their medical and
developmental needs are being met by their
The trial court also incorporated the challenged and unchallenged
findings of fact contained in the adjudication portion of the
We conclude that the court made adequate findings with regard
to the best interests of the children and discern no abuse ofdiscretion.
We affirm the trial court's order terminating
respondent's parental rights.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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