Appeal by respondent from order entered 3 March 2006 by Judge
Hugh B. Lewis in Mecklenburg County District Court. Heard in the
Court of Appeals 7 March 2007.
Mecklenburg County Attorney's Office, by J. Edward Yeager,
Jr., for petitioner-appellee.
Wyrick Robbins Yates & Ponton LLP, by K. Edward Greene and
Adrienne E. Allison, for respondent-appellant.
Office of the Guardian ad Litem, by Jeannie Brown, for
guardian ad litem-appellee.
GEER, Judge.
Respondent mother appeals from an order of the district court
terminating her parental rights as to her children J.S.B., D.K.B.,
D.D.J., and Z.A.T.J. (a girl and three boys). Although respondent
argues that several key findings of fact made by the trial court
rely on inadmissible hearsay evidence, we hold that the evidence
was properly admitted under well-established hearsay exceptions.
We further conclude that the trial court's findings fully support
its determination that respondent committed voluntary manslaughter
of her 14-month-old child _ an act that constitutes grounds for
termination of parental rights as to respondent's other children
under N.C. Gen. Stat. § 7B-1111(a)(8) (2005). Because respondent
has also failed to demonstrate that the trial court abused its
discretion in concluding that termination of respondent's parentalrights would be in the children's best interests, we affirm the
order of the trial court.
Facts
Petitioner Mecklenburg County Department of Social Services,
Youth and Family Services Division ("YFS"), became involved with
respondent's family in 1996. YFS received at least two reports
that respondent had physically abused or inappropriately
disciplined her children. YFS' records from 1998 through 2000
reflected reports of scratches, scarring, and stripes on the
children; that respondent and her boyfriend had sex in front of the
children; of respondent's failure to obtain prenatal care during
one of her pregnancies; of J.S.B., at the age of 4 or 5, having
issues of sexualized behavior and wetting herself; and of J.S.B.'s
being underweight.
On 3 October 2003, one of respondent's children, X.L.J., who
was 14 months old at the time, died. On the night of his death, at
about 11:00 p.m., respondent noticed that the child was not
breathing. Rather than call 911, respondent placed a cold cloth on
X.L.J., and respondent's boyfriend later attempted CPR. The child
never revived. Just two days prior to X.L.J.'s death, respondent
had rejected outreach services from YFS.
The following day, the medical examiner's office conducted an
examination of X.L.J.'s body and noted acute chronic injuries to
his head, cheek, and nose. There were also abrasions over one eye
and a bruise on the right side of the head. The medical examinerdetermined that the cause of death was an abusive head injury that
could not have been self-inflicted.
Respondent was interviewed by the police on 3 and 4 October
2003 and admitted to hitting X.L.J. in the head with a belt at
around 9:30 p.m., after which she placed him in his crib. J.S.B.
told police that she saw her mother whip X.L.J. and hit him on the
head. On 4 October 2003, respondent was arrested and charged with
the murder of X.L.J. She has remained incarcerated since that
time.
On the day of respondent's arrest, YFS obtained custody over
the remaining children (J.S.B., D.K.B., and D.D.J.). By an order
dated 5 December 2003, the district court adjudicated the three
siblings as neglected and dependent juveniles. Several months
after her arrest, while in jail and awaiting trial, respondent gave
birth to another child, Z.A.T.J. YFS also assumed custody of
Z.A.T.J., and the district court adjudicated Z.A.T.J. a neglected
and dependent juvenile in an order dated 18 March 2004.
When J.S.B. was first placed in custody with YFS, she had
lesions and marks on her body, her glasses were broken, her shoes
were too small, she had a foot deformity, she was very introverted
and would not make eye contact, and she was a bed wetter.
Similarly, one of the boys also was a bed wetter, had marks and
bruises on his body, was introverted and refused to make eye
contact, wore too-small shoes, and had difficulties focusing on any
discussion. Another son did not communicate openly when he first
went into foster care. On 2 November 2004, YFS filed petitions to terminate
respondent's parental rights, as well as the parental rights of the
children's biological fathers. Following several hearing dates,
the trial court entered an order on 3 March 2006 terminating the
parental rights of respondent mother and the two fathers.
(See footnote 1)
With
respect to respondent mother, the order found that the following
grounds existed for terminating her parental rights: N.C. Gen.
Stat. § 7B-1111(a)(1) (neglect); N.C. Gen. Stat. § 7B-1111(a)(6)
(inability to provide proper care and supervision, such that her
children are "dependent"); and N.C. Gen. Stat. § 7B-1111(a)(8)
(respondent's commission of voluntary manslaughter of one of her
own children). The court further concluded that termination of
parental rights was in the juveniles' best interests. Respondent
mother gave timely notice of appeal to this Court.
I
[1] Respondent argues that the following two findings in the
trial court's order are based on improperly admitted hearsay
testimony:
14. X.L.J. died when he was only fourteen
(14) months old. He dies [sic] from an
abusive head injury which he could not
have inflicted on himself.
. . . .
16. The medical examiner's office examined
[X.L.J.]'s body on October 4, 2003. The
examination of the body showed acute
chronic injuries to the head, cheek, and
nose. There was also a bruise on theright side of the head and abrasions over
one of the eyes.
The record shows that the content of these two findings is based on
an investigation report and an autopsy report generated by the
Mecklenburg County Medical Examiner's Office following the death of
X.L.J.
At trial, the county medical examiner, Dr. James Sullivan,
used the reports to testify as to the injuries observed on X.L.J.'s
body and as to the cause of death. Although Dr. Sullivan did not
personally examine X.L.J.'s body and did not author the reports, he
testified that he had reviewed the reports, which were prepared by
a fellow pathologist who had since moved out of state.
Upon respondent's objection to the admission of the reports,
YFS argued that the reports fit the "business records" exception to
the hearsay rule.
See N.C.R. Evid. 803(6). After observing that
the North Carolina appellate courts "have upheld decisions to admit
these reports," the trial court ruled the medical examiner's
investigation report and the autopsy report were admissible.
We do not address respondent's arguments regarding the
"business records" exception because we believe the reports were
properly admitted pursuant to the "public records" exception,
N.C.R. Evid. 803(8). Under the "public records" exception, the
following hearsay is admissible:
Records, reports, statements, or data
compilations, in any form, of public offices
or agencies, setting forth . . . (B) matters
observed pursuant to duty imposed by law as to
which matters there was a duty to report,
excluding, however, in criminal cases matters
observed by police officers and otherlaw-enforcement personnel, or (C) in civil
actions and proceedings and against the State
in criminal cases, factual findings resulting
from an investigation made pursuant to
authority granted by law, unless the sources
of information or other circumstances indicate
lack of trustworthiness.
N.C.R. Evid. 803(8).
In this case, the medical examiner's reports met the criteria
of Rule 803(8)(B) and (C). Dr. Sullivan's office was acting under
its statutory duty to investigate and report its factual findings
related to X.L.J.'s death.
See N.C. Gen. Stat. § 130A-385(a)
(2005) (when medical examiner's office obtains jurisdiction over a
body, the office "shall take charge of the body, make inquiries
regarding the cause and manner of death, reduce the findings to
writing and promptly make a full report to the Chief Medical
Examiner"). These reports are precisely the types of records
intended to be admitted under Rule 803(8).
Indeed, other jurisdictions have admitted such reports under
the public records exception to the hearsay rule.
See, e.g.,
United States v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993) (New York
City medical examiner's written autopsy report is admissible as
public record under Fed. R. Evid. 803(8)),
cert. denied, 511 U.S.
1042, 128 L. Ed. 2d 211, 114 S. Ct. 1565 (1994);
State v. Davis,
141 S.W.3d 600, 630 (Tenn. 2004) ("The autopsy reports are
admissible hearsay under Rules 803(6) and 803(8) of the Tennessee
Rules of Evidence."),
cert. denied, 543 U.S. 1156, 161 L. Ed. 2d
123, 125 S. Ct. 1306 (2005);
Tex. Workers' Comp. Comm'n v. Wausau
Underwriters Ins., 127 S.W.3d 50, 62 (Tex. App. 2003) ("An autopsyreport is admissible under the public-records hearsay exception of
the Texas Rules of Evidence."),
review denied, 04-0064, 2004 Tex.
LEXIS 547 (2004);
State v. Correia, 600 A.2d 279, 285 (R.I. 1991)
(holding that autopsy report prepared by medical examiner was
admissible under Rule 803(8)).
The fact that the report contains a medical examiner's opinion
as to X.L.J.'s cause of death, in addition to objective
observations of the child's physical injuries, does not detract
from the report's admissibility.
See Segrest v. Gillette, 331 N.C.
97, 103, 414 S.E.2d 334, 337 (1992) (recognizing that, under Rules
of Evidence 803(8) and 803(9), "opinions contained on death
certificates are no longer barred by the hearsay rule"); N.C.R.
Evid. 803(8) official commentary ("The term 'factual findings' [in
part C] is not intended to preclude the introduction of evaluative
reports containing conclusions or opinions."). Nor is the report's
admissibility affected simply because it was admitted during the
testimony of Dr. Sullivan, who did not personally participate in
the examination of X.L.J.'s body.
See State v. Forte, 360 N.C.
427, 434-36, 629 S.E.2d 137, 142-44 (SBI laboratory reports
admissible under both "business records" and "public records"
exceptions even though reports were admitted through SBI agent who
did not conduct underlying analysis but oversaw non-testifying
agent who did),
cert. denied, __ U.S. __, 166 L. Ed. 2d 413, 127 S.
Ct. 557 (2006). Accordingly, the trial court did not err in
admitting the medical examiner's investigation and autopsy reports
or in basing its findings of fact on those reports.
II
[2] Respondent next argues that the trial court improperly
allowed a police detective to testify, over respondent's objection,
regarding J.S.B.'s statements that she saw her mother whip X.L.J.
and hit him on the top of his head. The court admitted this
testimony pursuant to the "excited utterance" exception to the
hearsay rule.
See N.C.R. Evid. 803(2) (defining excited utterance
as "[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by
the event or condition"). The court then relied upon this
testimony in making the following finding of fact:
[J.S.B.] witnessed the death of [X.L.J.]. On
October 4, 2003, [J.S.B.] was interviewed by
Detective Susan Sarvis of the Charlotte-
Mecklenburg Police Department. The interview
occurred at the Law Enforcement Center in
Charlotte, North Carolina. [J.S.B.] told
Charlotte-Mecklenburg police investigating
officer, Detective Sarvis, that [respondent]
whipped [X.L.J.] and that [respondent] hit
[X.L.J.] on top of his head. [J.S.B.] also
indicated that [respondent] was angry with her
for seeing [respondent] whip [X.L.J.].
"In order to fall within this hearsay exception, there must be
(1) a sufficiently startling experience suspending reflective
thought and (2) a spontaneous reaction, not one resulting from
reflection or fabrication."
State v. Smith, 315 N.C. 76, 86, 337
S.E.2d 833, 841 (1985). "When considering the spontaneity of
statements made by young children, there is more flexibility
concerning the length of time between the startling event and the
making of the statements because 'the stress and spontaneity upon
which the exception is based is often present for longer periods oftime in young children than in adults.'"
State v. Boczkowski, 130
N.C. App. 702, 710, 504 S.E.2d 796, 801 (1998) (quoting
Smith, 315
N.C. at 87, 337 S.E.2d at 841).
Here, J.S.B., who was nine years old, made her statements to
the detective 16 hours after witnessing conduct that led to her
brother X.L.J.'s death. During the 16 hours after J.S.B. saw her
mother hit her brother on the head, her mother's boyfriend had
attempted CPR on the child, emergency medical technicians had
arrived and taken X.L.J. to the hospital, and X.L.J. had died.
J.S.B. also acknowledged that her mother was angry that J.S.B. had
seen her hit X.L.J. Further, when J.S.B. was interviewed she would
become "teary-eyed" and very withdrawn while talking about X.L.J.
She was also found in the Victim Assistance room "basically in a
corner in like a ball, like a fetal position."
We hold that under these circumstances _ especially given
prior cases involving statements by young children _ J.S.B.'s
statements were properly admitted as an excited utterance.
See,
e.g.,
State v. Burgess, 181 N.C. App.. 27, 36, 639 S.E.2d 68, 75
(2007) ("In the present case, fewer than twenty-four hours had
elapsed between the time S.P. yelled at [the child], the sexual
assault, and [the child's] statements to her mother.");
Boczkowski,
130 N.C. App. at 709-10, 504 S.E.2d at 801 (holding excited
utterance exception applied when nine-year-old's mother died in
early morning hours and she made statements to neighbor
approximately seven to eight hours later that day);
State v.
Rogers, 109 N.C. App. 491, 501, 428 S.E.2d 220, 226 ("Thus,statements made by young children three days after an alleged
sexual assault, which relate to the assault, have been deemed
admissible under the excited utterance exception."),
cert. denied,
334 N.C. 625, 435 S.E.2d 348 (1993),
cert. denied, 511 U.S. 1008,
128 L. Ed. 2d 54, 114 S. Ct. 1378 (1994).
Respondent argues that these cases are inapposite because
J.S.B. "was not the direct victim of the action about which she
made statements," and she "made the statements in response to a
police officer's questions." We find these arguments unpersuasive.
Given J.S.B.'s conduct and demeanor when making the disputed
statements, it is apparent that witnessing her mother striking her
baby brother on the head _ which injury resulted in his death _ was
a sufficiently traumatic experience to cause J.S.B. to continue to
experience its effects 16 hours later, allowing her statements at
that time to qualify as excited utterances.
See State v. Lowe, 154
N.C. App. 607, 613, 572 S.E.2d 850, 855 (2002) ("[W]itnessing one's
father cause serious physical injury to one's mother, friends and
oneself is certainly a sufficiently traumatic experience for a
child[] to support this same latitude being given to the time span
between the incident and the utterance."). Further, "our case law
is clear that statements made in response to a posed question do
not necessarily lack spontaneity."
Id. at 612, 572 S.E.2d at 855.
Accordingly, we hold that the trial court did not err in admitting
J.S.B.'s statements to the detective.
III
[3] We next address respondent's contention that the trial
court erred in concluding that grounds existed under N.C. Gen.
Stat. § 7B-1111 for termination of respondent's parental rights.
Because we hold that the trial court properly found a sufficient
basis for termination of parental rights under N.C. Gen. Stat. §
7B-1111(a)(8), we need not address respondent's arguments as to the
other grounds.
In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d
89, 93-94 (2004) ("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.").
A termination of parental rights proceeding is conducted in
two phases: (1) an adjudication phase that is governed by N.C. Gen.
Stat. § 7B-1109 (2005) and (2) a disposition phase that is governed
by N.C. Gen. Stat. § 7B-1110 (2005).
In re Blackburn, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication
stage, 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 exist. The
standard of appellate review is 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.
In re
Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000),
appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001).
Under N.C. Gen. Stat. § 7B-1111(a)(8), the trial court may
terminate parental rights upon finding that "[t]he parent hascommitted murder or voluntary manslaughter of another child of the
parent or other child residing in the home . . . ." The statute
further provides two ways in which a petitioner may establish this
ground for termination:
The petitioner has the burden of proving any
of these offenses in the termination of
parental rights hearing by (i) proving the
elements of the offense or (ii) offering proof
that a court of competent jurisdiction has
convicted the parent of the offense, whether
or not the conviction was by way of a jury
verdict or any kind of plea.
Id.
In this case, because respondent had not yet been tried on the
first degree murder charges, YFS sought to establish this ground
for termination by "proving the elements" of voluntary
manslaughter. Respondent contends that the trial court applied the
wrong standard of proof and that petitioner was required to prove
these elements beyond a reasonable doubt rather than under the
customary "clear and convincing evidence" standard.
Respondent cites no authority that supports this contention,
but rather simply asserts that "[t]o allow proof of a crime by the
lower 'clear and convincing' standard is unjust." The Juvenile
Code, however, unambiguously states that "[t]he burden in
[termination of parental rights] proceedings shall be upon the
petitioner or movant to prove the facts justifying such termination
by
clear and convincing evidence." N.C. Gen. Stat. § 7B-1111(b)
(emphasis added).
As has been explained by our Supreme Court _ in a quotation
cited frequently by this Court _ this "standard is greater than thepreponderance of the evidence standard required in most civil
cases, but not as stringent as the requirement of proof beyond a
reasonable doubt required in criminal cases."
In re Montgomery,
311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984). This Court, in
turn, has explained the reason for the differing standards of
proof:
"The burden of proof required to
terminate a parent's rights, although greater
than that required for an ordinary civil
proceeding, is still less than that required
to convict a person of a crime. The
requirement that a person accused of a crime
be found guilty beyond a reasonable doubt is
based on the common law presumption of
innocence. The statutory burden of proof for
a severance proceeding, on the other hand, is
required by the Due Process Clause of the
Fourteenth Amendment to the United States
Constitution. Thus, the burdens of proof are
neither 'very similar' nor do they derive from
the same source."
In re Harrison, 136 N.C. App. 831, 833, 526 S.E.2d 502, 503 (2000)
(quoting
Denise H. v. Ariz. Dep't of Econ. Sec., 193 Ariz. 257,
259, 972 P.2d 241, 243 (1998)).
Our legislature has chosen to employ a "clear and convincing
evidence" standard in termination of parental rights proceedings.
In order to override this legislative decision, respondent would
need to point to some constitutional entitlement to the more
rigorous criminal standard of proof. She has failed to do so, and
we know of none. In the absence of a constitutional mandate, the
question whether it is "just" to use the "clear and convincing
evidence" standard when the grounds for termination have criminalcorollaries raises a question of policy better directed to the
General Assembly.
We observe further that this civil determination _ made by a
judge and not a jury _ is not admissible in any subsequent criminal
proceeding. Our Supreme Court has stated:
It is generally held that a judgment in a
civil action is not admissible in a subsequent
criminal prosecution although exactly the same
questions are in dispute in both cases, for
the reason that the parties are not the same,
. . . different rules as to the weight of the
evidence prevail[, and] it would not be just
to convict a defendant in a criminal action by
reason of a judgment obtained against him in a
civil action [with a lower standard of proof].
State v. Dula, 204 N.C. 535, 536, 168 S.E. 836, 836-37 (1933)
(internal quotation marks and citation omitted);
see also N.C. Gen.
Stat. § 1-149 (2005) ("No [civil] pleading can be used in a
criminal prosecution against the party as proof of a fact admitted
or alleged in it.").
We note in passing that respondent's position would compel
application of the "beyond a reasonable doubt" standard in many
termination cases, since frequently the conduct at issue would also
constitute a crime.
See, e.g., N.C. Gen. Stat. § 14-27.2 (2005)
(statutory rape); N.C. Gen. Stat. § 14-27.4 (2005) (statutory
sexual offense); N.C. Gen. Stat. § 14-178 (2005) (incest); N.C.
Gen. Stat. § 14-202.1 (2005) (indecent liberties with children);
N.C. Gen. Stat. § 14-316.1 (2005) (contributing to delinquency and
neglect of juvenile); N.C. Gen. Stat. § 14-318.2 (2005) (child
abuse as a misdemeanor); N.C. Gen. Stat. § 14-318.4 (2005) (child
abuse as a felony); N.C. Gen. Stat. § 14-322 (2005) (abandonmentand failure to support spouse and children). Further, criminal
ramifications might exist in other cases, such as those involving
abuse of controlled substances. The question could arise in those
cases whether the possible involvement of illegal conduct _ even
when the child is not a victim in the criminal sense _ would
require the higher standard of proof.
We cannot find any authority _ and respondent points to none
_ that would justify the application of differing standards of
proof depending on whether the alleged ground for termination could
also constitute a criminal offense. Respondent has failed to show
any basis for disregarding the specific standard set forth by the
General Assembly and, therefore, we hold that the trial court
applied the proper standard of proof.
Respondent next argues that the trial court made inadequate
findings of fact with respect to N.C. Gen. Stat. § 7B-1111(a)(8).
In its termination order, the trial court made both a finding of
fact and a conclusion of law that respondent committed voluntary
manslaughter of X.L.J.:
[Finding of Fact] 26. [Respondent] was
arrested and charged with the murder of X.L.J.
on October 4, 2003. She has remained
incarcerated since that time. [Respondent]
committed voluntary manslaughter of [X.L.J.],
without malice.
. . . .
[Conclusion of Law] 16. [Respondent] has
committed voluntary manslaughter, without
malice of [X.L.J.], a child of [respondent].
Respondent contends that the trial court should have made
individual findings of fact with respect to each element of the
crime of voluntary manslaughter.
Those elements were set forth in
State v. Best, 59 N.C. App.
96, 97, 295 S.E.2d 774, 775 (1982): "(1) [the] unlawful killing of
a human being, (2) without malice, and (3) without premeditation
and deliberation." Assuming, without deciding, that the trial
court was required to make specific findings as to each element of
the crime of voluntary manslaughter, we hold that the trial court
has adequately done so.
In addition to the above finding of fact establishing that
respondent acted "without malice," the court made the following
pertinent findings of fact:
12. The mother had another child, X.L.J.
[X.L.J.]'s crib was located in the
mother's room. On October 03, 2003,
around 11:00 p.m., [respondent] noticed
that X.L.J. was not breathing.
13. [Respondent] did not call 911 when she
discovered [X.L.J.] was not breathing.
Instead, she got a cold cloth and placed
it on the child. Afterwards, she went to
get Antoine Welch, her boyfriend.
Antoine Welch attempted to perform CPR on
[X.L.J.].
14. X.L.J. died when he was only fourteen
(14) months old. He dies [sic] from an
abusive head injury which he could not
have inflicted on himself.
. . . .
16. The medical examiner's office examined
[X.L.J.]'s body on October 4, 2003. The
examination of the body showed acute
chronic injuries to the head, cheek, and
nose. There was also a bruise on theright side of the head and abrasions over
one of the eyes.
. . . .
20. [Respondent] confessed to taking off her
belt and hitting [X.L.J.] in the head
with the belt. [Respondent] stated to the
police that she hit [X.L.J.] about 9:30
p.m. She stated that after she hit the
child, she laid the child in the crib.
[Respondent] contradicted herself in her
statements to the police. Earlier she
stated that she hit [X.L.J.] while she
was putting her belt on.
. . . .
23. [J.S.B.] witnessed the death of [X.L.J.]
. . . [J.S.B.] told Charlotte-Mecklenburg
police investigating officer, Detective
Sarvis, that the mother whipped [X.L.J.]
and that the mother hit [X.L.J.] on top
of his head. . . .
24. [One of the other children] confirmed
that the mother used a switch on the
children.
. . . .
46. The respondent mother used a belt or whip
on the children as a discipline
technique.
47. [Respondent] holds the belief that
physical discipline is required to keep
children from "running over you."
Taken together, these findings amply support the ultimate finding
of fact that respondent committed voluntary manslaughter.
See
State v. Jones, 35 N.C. App. 48, 52-53, 239 S.E.2d 874, 877-78
(1978) (where evidence showed that baby died following trauma to
his liver and defendant admitted to hitting baby, such evidence was
sufficient to survive motion to dismiss charges of second degree
murder and voluntary manslaughter). The trial court adequately explained its basis for finding
that respondent had committed voluntary manslaughter. We therefore
hold the trial court made sufficient findings of fact to support
its conclusion that grounds existed to terminate respondent's
parental rights under N.C. Gen. Stat. § 7B-1111(a)(8).
(See footnote 2)
IV
[4] Lastly, we address respondent's contention that the trial
court erroneously concluded that termination of her parental rights
would be in the best interests of the juveniles. If petitioner
meets its burden of proving that grounds for termination exist, the
trial court moves to the disposition phase and must consider
whether termination is in the best interests of the child. 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).
Relying on N.C. Gen. Stat. § 7B-1110, respondent asserts that
the trial court failed to make findings consistent with the six
factors listed at § 7B-1110(a)(1)-(6). These factors were added by
an amendment of the statute in 2005 and apply only to petitions
filed on or after 1 October 2005. 2005 N.C. Sess. Laws ch. 398, §§
17, 19. The petitions in this case were filed 2 November 2004,
and, accordingly, the amendments do not apply. The applicable version of the statute, N.C. Gen. Stat. § 7B-
1110(a) (2003), states that once the trial court finds at least one
ground for termination of parental rights, "the court shall issue
an order terminating the parental rights of such parent with
respect to the juvenile unless the court shall further determine
that the best interests of the juvenile require that the parental
rights of the parent not be terminated." Apart, however, from her
misplaced argument regarding the 2005 version of the statute,
respondent makes no argument as to why the trial court's "best
interests" determination constitutes an abuse of discretion.
Nevertheless, based upon our review of the trial court's
findings regarding respondent's prior treatment of her children,
her responsibility for X.L.J.'s death, the children's condition
when entering foster care, and their current condition, we perceive
no abuse of discretion in the decision to terminate her parental
rights. Accordingly, we affirm.
Affirmed.
Judges TYSON and ELMORE concur.
Footnote: 1