Appeal by respondent from order entered 25 January 2006 by
Judge James T. Hill in Durham County District Court. Heard in the
Court of Appeals 19 October 2006.
Durham County Attorney S. C. Kitchen, by Deputy County
Attorney Thomas W. Jordan, Jr., for petitioner-appellee.
Peter Wood for respondent-appellant.
Wendy C. Sotolongo for guardian ad litem.
Respondent father appeals from an order of the district court
terminating his parental rights with respect to his minor children,
L.C. ("Landon"), I.C. ("Irene"), and L.C. ("Lee").
(See footnote 1)
respondent primarily argues that he was denied effective assistance
of counsel when the afternoon session of the termination of
parental rights ("TPR") hearing began as scheduled, even though his
attorney had not yet returned, and, when the trial court later did
not allow respondent's attorney to ask petitioner's first afternoon
witness introductory questions to "bring [respondent's counsel] up
to speed." Respondent also contends that the trial court erred by
admitting two of the minor children's mental health records, which
he argues contain inadmissible hearsay. Finally, respondent
asserts that several of the trial court's findings of fact are
unsupported by the evidence, that they cannot support the court's
conclusions of law, and that the trial court abused its discretion
by terminating his parental rights.
We conclude that respondent has not shown that his attorney's
tardiness deprived him of a fair hearing, and, therefore,
respondent has failed to establish a claim for ineffective
assistance of counsel. Additionally, as respondent has made no
effort to rebut the presumption that the trial court disregarded
any hearsay contained in the disputed medical records, he is not
entitled to reversal on this ground. We also conclude that thetrial court's findings are supported by clear, cogent, and
convincing evidence, that they adequately support the court's
conclusion that respondent abused his children, and that the trial
court did not abuse its discretion by terminating his parental
rights on this basis. Accordingly, we affirm.
On 31 July 2001, the Vance County Department of Social
Services ("Vance County DSS") filed petitions alleging that Landon,
Irene, and Lee were abused, neglected, and dependent juveniles.
According to Vance County DSS, the children's mother was deceased,
and respondent had inappropriately disciplined the children and
left them home alone without proper supervision. Respondent does
not contest that, prior to the filing of the petitions, he had hit
all three children with belts and switches; had "back-handed"
Landon in the eye; had struck Irene in the eye and on her face,
shoulders, and back numerous times with belts, brooms, shoes, and
drop cords; and had beaten Lee about the face and back.
The trial court issued non-secure custody orders on 31 July
2001, granting custody of the children to Vance County DSS. At the
time they were taken from respondent's custody, all three children
had marks, bruises, and scars indicative of both old and new abuse.
Because respondent missed numerous court dates, adjudication
proceedings did not occur until January 2002. At the time of the
adjudication hearing, respondent resided in a half-way house, was
scheduled for vocational rehabilitation and anger management
classes, and had signed both a protection plan and a family
services case plan addressing proper discipline and supervision. On 23 October 2002, the trial court adjudicated the children to be
abused, neglected, and dependent and ordered Vance County DSS to
retain custody. The case plan at that time was reunification.
The matter was transferred to Durham County Department of
Social Services ("Durham County DSS") on 25 October 2002. On 5
August 2003, following a review hearing, the trial court entered an
order noting that respondent had presented letters showing that he
had completed an outpatient substance abuse program as well as
parenting classes and had been drug-free since June 2002. On the
other hand, it appeared, according to guardian ad litem and Durham
County DSS reports, that respondent may not have completed anger
management classes, obtained a recommended psychological
evaluation, or provided proof of stable housing and income. As a
result, the court ordered respondent to obtain a psychological
evaluation, continue with substance abuse treatment, maintain
housing at the half-way house, attend anger management classes, and
adhere to a restraining order requiring he stay 1,000 feet away
from the children. The court, however, also decided to change the
permanent plan to termination of parental rights and adoption, or,
alternatively, guardianship with a relative.
On 31 December 2003, Durham County DSS filed a petition to
terminate respondent's parental rights. The trial court entered an
order on 2 September 2004 finding that respondent had abused each
of the three children and that, as a result, they suffered from
post-traumatic stress disorder and other behavioral and emotional
conditions. Because respondent was only in the beginning stages of
anger management education, the court determined that he was notyet able to give the children appropriate care and supervision.
Further, because respondent would still require "significant
individual therapy to deal with his personal issue[s]" before he
could safely parent his children, the court concluded that there
was a reasonable probability that he would continue to abuse the
children if they were returned to his care. Based on these
findings of fact, the court terminated respondent's parental
Respondent appealed, and this Court reversed, concluding that
the wording of the trial court's "conclusion of law merely
reiterate[d] 'the grounds upon which the petition for termination
[was] filed' and [did] not conclude that any of those grounds
actually exist." In re L.C.
, 174 N.C. App. 839, 622 S.E.2d 522,
2005 N.C. App. LEXIS 2600, at *5, 2005 WL 3291365, at *2 (2005)
(second alteration original) (unpublished). We remanded for
further proceedings, but left to the trial court's discretion the
decision as to whether to conduct an additional hearing on remand.
The trial court chose not to hold another hearing and,
instead, entered a new order specifically finding that the "error
in the termination order was a drafting error and the [c]ourt
specifically did make the necessary conclusions of law, even if
incorrectly drafted." Following discovery of additional clerical
errors, the trial court ultimately altered the disputed conclusion
of law to begin by stating that "the grounds upon which termination
are as follows . . . ." (Emphasis added.) The order
otherwise remained the same, and respondent again timely appealed.
 We turn first to respondent's argument that he was denied
effective assistance of counsel. Parents have a "right to counsel
in all proceedings dedicated to the termination of parental
rights." In re Oghenekevebe
, 123 N.C. App. 434, 436, 473 S.E.2d
393, 396 (1996). See also
N.C. Gen. Stat. § 7B-602(a) (2005) ("In
cases where the juvenile petition alleges that a juvenile is
abused, neglected, or dependent, the parent has the right to
counsel . . . unless that person waives the right."). This right
includes the right to effective assistance of counsel.
, 123 N.C. App. at 436, 473 S.E.2d at 396.
Respondent points to the fact that on the second of five days
of hearing, the trial court commenced court following the luncheon
recess even though his attorney had not yet arrived. At that time,
Durham County DSS called its second witness of the day, Lee's case
manager, Elizabeth Fortune. At some unknown point during Ms.
Fortune's testimony, respondent's attorney arrived. After Ms.
Fortune was examined by the attorneys for Durham County DSS and the
guardian ad litem, respondent's attorney began her cross-
examination as follows:
Q. I have a few questions for you, and some
are to bring me up to speed from the beginning
of your testimony.
What's your full name?
A. Elizabeth Fortune.
Q. And what is your relation to [Lee]?
A. I'm his case manager and individual
Q. And what is your background and
qualifications as _
THE COURT: You were not here when this
went over, so you missed it. So just go on
with your cross-examination. You've got her
name and that's all you need. We started on
time, you were not here. So skip over that
and let's just go to testimony.
The record does not reflect how much of Ms. Fortune's direct
testimony respondent's attorney missed on account of her tardiness.
A claim of ineffective assistance of counsel not only requires
a respondent to show that counsel's performance was deficient, but
also that "the deficiency was so serious as to deprive the
represented party of a fair hearing." Id. Here, respondent has
failed to demonstrate how his attorney's tardiness caused him to be
denied a fair hearing.
Respondent has not identified what direct testimony his
attorney missed, has not explained how the failure of his counsel
to hear that testimony prejudiced him, and has not suggested what
other introductory questions his attorney would have asked, if
allowed, and how the preclusion of such questions impacted her
ability to effectively represent respondent. Because respondent
has failed to demonstrate the prejudice he suffered, he has
likewise failed to establish his claim of ineffective assistance of
counsel. See In re B.P., 169 N.C. App. 728, 733, 612 S.E.2d 328,
332 (2005) (denying ineffective assistance claim when respondent
"failed to specify what motions should have been made and what
evidence could have been, but was not, presented before the trial
(See footnote 2)
Respondent alternatively argues that, even if he was not
denied effective assistance of counsel, the trial court
nevertheless erred by refusing to allow his attorney to cross-
examine "a key witness" on "a relevant topic." Rule 103(a) of the
Rules of Evidence provides:
Error may not be predicated upon a ruling
which admits or excludes evidence unless a
substantial right of the party is affected,
. . . .
(2) . . . . In case the ruling is one
excluding evidence, the substance of
the evidence was made known to the
court by offer or was apparent from
the context within which questions
Here, when the trial court instructed respondent's attorney to
"just go to testimony," she responded "[o]kay" and proceeded with
her substantive cross-examination. We have no way of determining
what respondent's attorney was precluded from asking because she
failed to make an offer of proof. Accordingly, since respondent
did not comply with Rule 103, we are not in a position to review
this argument on appeal. These assignments of error are,
 Respondent next contends that the trial court erred by
admitting, over objection, Lee's and Irene's mental health records,
which respondent argues contain inadmissible hearsay. Even
, that the records contain inadmissible hearsay,
respondent has failed to demonstrate that the trial court's order
must be reversed.
In a bench trial, "it will be presumed that the judge
disregarded any incompetent evidence that may have been admitted
unless it affirmatively appears that he was influenced thereby."
Stanback v. Stanback
, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696
(1976), disc. review denied
, 291 N.C. 712, 232 S.E.2d 205 (1977).
Under this principle, respondent bears the burden of showing that
the trial court relied on the incompetent evidence in making its
findings. In re Huff
, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846
(2000), appeal dismissed and disc. review denied
, 353 N.C. 374, 547
S.E.2d 9 (2001).
Respondent has not met his burden. Although the children's
mental health records span over 550 pages, respondent has not
pointed to any specific instances of hearsay upon which he contends
the trial court improperly relied. As respondent has failed to
rebut the presumption that the trial court disregarded inadmissible
evidence in making its findings, we overrule this assignment of
 Finally, we consider respondent's argument that the trial
court erred by terminating his parental rights. During the
adjudication stage of a termination of parental rights proceeding,the petitioner has the burden of proving by clear, cogent, and
convincing evidence that one or more of the statutory grounds for
termination set forth in N.C. Gen. Stat. § 7B-1111 (2005) exist.
On appeal, this Court determines whether the trial court's findings
of fact are supported by clear, cogent, and convincing evidence and
whether the findings of fact support the conclusions of law. Huff
140 N.C. App. at 291, 536 S.E.2d at 840.
As we find it dispositive, we review only the trial court's
conclusion that grounds existed under N.C. Gen. Stat. §
7B-1111(a)(1), providing for termination of a respondent's parental
rights when the parent has "abused or neglected the juvenile." An
abused juvenile is one whose parent, among other things, inflicts
upon the juvenile serious physical injury by other than accidental
means, uses upon the juvenile cruel or grossly inappropriate
procedures to modify behavior, or creates serious emotional damage
to the juvenile evidenced by the juvenile's severe anxiety,
depression, withdrawal, or aggressive behavior. N.C. Gen. Stat. §
7B-101(1) (2005). For the trial court to decide, following a
termination of parental rights hearing, that a child is abused, the
court "must admit and consider all evidence of relevant
circumstances or events which existed or occurred before the
adjudication of abuse, as well as any evidence of changed
conditions in light of the evidence of prior abuse and the
probability of a repetition of that abuse." In re Greene
, 152 N.C.
App. 410, 417, 568 S.E.2d 634, 638 (2002).
Here, the trial court found that all three children had been
abused and exhibited symptoms of that abuse. Further, the courtdetermined that there was a reasonable probability that respondent
would again abuse the children if they were returned to his care.
As to past abuse, the trial court found, and respondent candidly
admits, that he physically beat and abused the children. This
abuse, the trial court found, caused the children to suffer various
emotional and behavioral problems, including post-traumatic stress
disorder. Although respondent contests this finding of fact on
appeal, it is amply supported by the testimony of each child's
In addition, the trial court's finding that respondent would
likely continue the abuse if the children were returned to his
custody was supported by the testimony of respondent's individual
therapist, Carolyn Cordasko. She testified that his anger
management progress had been "rather slow" and that he was still
"fairly high-risk." She expressed her view that the parenting
classes respondent had taken to learn about "alternatives to
corporal punishment" had not been sufficient to train him about
"appropriate parenting." She concluded that respondent's taking
custody of his children at that time would be a significant
"challenge." Indeed, Ms. Cordasko specifically noted that
respondent had not yet experienced sufficient progress even to meet
with his children and apologize for his past abuse. Based on this
testimony, we hold that the trial court's finding that respondent
was likely to continue to abuse the children was also supported by
clear, cogent, and convincing evidence.
(See footnote 3)
Further, these findings of fact _ regarding past abuse, the
effect of the abuse on the children, and the probability of future
abuse _ were in turn sufficient to support the trial court's
conclusion that grounds existed to terminate respondent's parental
rights because he had abused his children. "Having concluded that
at least one ground for termination of parental rights existed, we
need not address the additional ground[s] . . . found by the trial
court." In re B.S.D.S.
, 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-
As petitioner met its burden of proving that grounds for
termination existed, the trial court was required to move to the
disposition phase and consider whether termination was in the best
interests of the children. N.C. Gen. Stat. § 7B-1110(a). The
trial court's decision to terminate parental rights is reviewed
under an abuse of discretion standard. In re Nesbitt
, 147 N.C.
App. 349, 352, 555 S.E.2d 659, 662 (2001). Here, the trial court
did indeed find termination would be in the children's best
interests, and, given respondent's history of severe physical abuse
and ongoing battle with anger management even after three years of
the children being in DSS custody, we see nothing manifestly
unreasonable about this decision. See In re McMillon
, 143 N.C.
App. 402, 412-13, 546 S.E.2d 169, 176-77 (trial court did not abusediscretion by terminating respondent's parental rights when he
admitted "disciplining" child by "smacking" and "whipping," and
father had not made "meaningful clinical progress" during
counseling), disc. review denied
, 354 N.C. 218, 554 S.E.2d 341
Respondent, however, points to the court's finding that "[a]ll
of the children's therapists think that it would be in the
children's best interests and assist in their therapy to have
family sessions with [respondent] that involve some clarification,
and apology and emotional reconciliation." Respondent contends
that this finding required that the trial court conclude that
termination of parental rights was not in the children's best
The trial court, however, also found that such family sessions
could not occur until respondent had "progressed to a stage where
he can appropriately do those things, and . . . the children are at
a stage where they can safely process the information and
experience." Further, according to the court, the children also
"require permanency to ensure continued progress in their therapy."
We cannot find an abuse of discretion when the trial court
concluded that the need for permanency required, in these
circumstances, termination of parental rights.
Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.