Appeal by respondent from order filed 5 April 2007 by Judge
William G. Stewart in Nash County District Court. Heard in the
Court of Appeals 14 November 2007.
Jayne B. Norwood for petitioner-appellee Nash County
Department of Social Services for petitioner-appellee.
North Carolina Guardian ad Litem Program, by Pamela Newell
Williams, for the juvenile.
Annick Lenoir-Peek for respondent-appellant.
BRYANT, Judge.
A.C.
(See footnote 1)
(respondent) appeals from a 5 April 2007 order of
adjudication of abuse and neglect and termination of parental
rights as to her minor son, R.B.B. For the reasons stated herein,
we affirm.
R.B.B. was born in early 2006. In the first seven months of
his life, respondent had taken R.B.B. to numerous medical
appointments for wellness checkups and for physical conditions,
including vomiting, colds and bleeding gums. In July 2006, Dr.
Shandal Emanuel, a pediatrician, examined R.B.B. for the first time
at his six-month wellness checkup. At that time, R.B.B. weighed
below the fifth percentile on the pediatric growth chart after a
continual decline from a normal weight at his three-month checkup.
On 14 August 2006, R.B.B. had a fever and was vomiting. Respondent
took him to see Dr. Emanuel who noticed R.B.B. “had a bruise on the
left temple area as well as two 1/2cm ulcerated lesions on the
right lower abdomen that was suspicious for a burn.” Dr. Emanuel
prescribed antibiotics; however R.B.B.'s condition did not improve,
he continued to lose weight, and on 18 August 2006, Dr. Emanuel
admitted R.B.B to the hospital for “evaluation of dehydration,
fever and vomiting.” While at the hospital, a chest x-ray revealed
R.B.B. had broken ribs. A full skeletal survey revealed “multiple
healed fractures including [right and left] healed [] spiral tibia
fracture[s].” On 18 August 2006, based on the investigation of R.B.B.'s
injuries, a non-secure custody order of R.B.B. was obtained by Nash
County Department of Social Services (DSS-petitioner-appellee). On
21 August 2006, DSS filed a juvenile petition alleging R.B.B. to be
abused and neglected. DSS gained non-secure custody of R.B.B. on
21 August 2006 and R.B.B. was placed in foster care the next day.
Based upon the Nash County Sheriff Department's investigation of
R.B.B.'s injuries, respondent and her live-in boyfriend (Josh
Robles) were each charged with three counts of felonious child
abuse.
At a 19 September 2006 hearing, the trial court determined
R.B.B. would remain in the custody of DSS. At that hearing,
respondent waived future hearings to determine R.B.B.'s custody.
During the subsequent three months, multiple continuances were
issued for the abuse and neglect adjudication hearing. On 22
December 2006, DSS filed a motion to terminate parental rights.
After entering foster care, R.B.B. gained weight, began reaching
developmental milestones for his age and did not sustain any broken
bones. The consolidated hearing for the abuse and neglect
proceeding and the termination of parental rights proceeding was
held on 8 and 9 February 2007. Specifically, the trial court
found:
43. R.B.B. has been in foster care since
August 22, 2006 when he was released from
Nash General Hospital. He was seen by
his Pediatrician Dr. Emmanuel [sic] on
September 12, 2006 and by that date had
gained ten ounces. When the child was
placed in foster care . . . he could not
roll over and could not sit alone [and] . . . by the age of nine months was
sitting alone without support. He is now
pulling up, crawling and will take a few
steps if his hands are held. The child
initially had no facial expression and
had a flat effect. He has now “blossomed”
and responds as a normal thirteen month
old. He continues to gain weight, is no
longer on special formula and is not
experiencing gastrointestinal problems.
He has had no broken bones while in
foster care. He is bonded to his foster
parents.
44. The Court heard and considered evidence
put forth by the Respondent mother as to
the steps she has taken since the child
was removed from her care to demonstrate
that she earnestly desires to be reunited
with her child, however, the age of the
child, the detailed admission of her
frustration with the baby's crying, the
number of injuries, the extent of the
injuries, her knowledge of the danger of
leaving the baby with [her boyfriend] and
her insistence on continuing to do so
when friends and family members
encouraged her not to do so outweigh any
potential benefits that this Court can
find to the reunification process. The
Court is equally [as] concerned by the
mother's recent minimization to the
mental health therapist of the
seriousness of the injuries and their
origin.
The trial court concluded R.B.B. to be neglected and abused and
ordered respondent's parental rights terminated. From this 5 April
2007 order, respondent appeals.
___________________________
Respondent argues the trial court erred by: (I) simultaneously
conducting all adjudicatory and dispositional hearings related to
both the abuse and neglect petition and the termination of parental
rights petition; (II) failing to require DSS to use reasonableefforts for reunification; (III) failing to pursue a separate
disposition other than termination of parental rights; (IV) finding
and concluding respondent's parental rights should be terminated;
(V) basing the termination of parental rights on a felonious child
abuse charge; and (VI) finding and concluding termination of
respondent's parental rights was in the best interest of R.B.B.
I & III
[1] Respondent argues that the trial court erred by
simultaneously conducting all adjudicatory and dispositional
hearings related to both the abuse and neglect petition and the
termination of parental rights petition. We disagree.
After an appropriate party files a juvenile petition alleging
that a minor is abused, neglected, or dependent, the trial court
must hold an adjudicatory hearing “designed to adjudicate the
existence or nonexistence of any of the conditions alleged in [the]
petition.” N.C. Gen. Stat. § 7B-802 (2005). The allegations in
the petition must be proved by clear and convincing evidence. N.C.
Gen. Stat. § 7B-805 (2005). If the trial court finds the
allegations proved by clear and convincing evidence, it must issue
an adjudicatory order containing an affirmative statement of the
standard of proof used. N.C. Gen. Stat. § 7B-807 (2005). The
trial court will then hold a dispositional hearing and has broad
discretion to craft a disposition designed to serve the juvenile's
best interests. N.C. Gen. Stat. §§ 7B-901, -903, -905 (2005).
Likewise, a termination of parental rights action involves a
two-step process. After an appropriate party files a terminationpetition, the trial court must hold an adjudicatory hearing to
determine whether grounds for termination exist. N.C. Gen. Stat.
§ 7B-1109(e) (2005);
see N.C. Gen. Stat. § 7B-1111(a) (listing the
various findings that may serve as grounds for termination). A
finding that the parent has either abused or neglected the juvenile
may serve as grounds for termination.
Id. However, the trial
court may make such a finding in the N.C.G.S. § 7B-1109
adjudicatory hearing without having previously adjudicated the
juvenile abused or neglected in a prior abuse, neglect, or
dependency action.
See In re Faircloth, 153 N.C. App. 565, 571,
571 S.E.2d 65, 69 (2002) (“An adjudicatory hearing on abuse and
neglect allegations is not a condition precedent to a termination
hearing. . . . [S]uch a hearing on abuse and neglect may well [be]
merely redundant with parts of [a] termination hearing.”). The
burden is on the petitioner to prove the allegations of the
termination petition by clear, cogent, and convincing evidence.
N.C.G.S. § 7B-1109(f) (2005). If the trial court finds the
allegations proved by clear and convincing evidence, it must issue
an adjudicatory order containing an affirmative statement of the
standard of proof used.
See In re Church, 136 N.C. App. 654, 657,
525 S.E.2d 478, 480 (2000) (holding “we read [section N.C.G.S. §
1109(f)] to require the trial court to affirmatively state in its
order the standard of proof utilized in the termination
proceeding”). The trial court then proceeds to the disposition
stage where it must determine whether termination of parental
rights is in the best interests of the child. N.C. Gen. Stat. §7B-1110 (2005). If the trial court so determines, it may issue a
termination of parental rights order.
Id.
While the juvenile code contemplates two different stages in
a termination action, it does not explicitly require that the two
stages be conducted at two separate hearings. Indeed, our Court
has previously held that a trial court may combine the N.C.G.S. §
7B-1109 adjudicatory stage and the N.C.G.S. § 7B-1110 dispositional
stage into one hearing, so long as the trial court applies the
correct evidentiary standard at each stage and the trial court's
orders associated with the termination action contain the
appropriate standard-of-proof recitations:
[A]lthough the court is required to apply
different evidentiary standards at each of the
two stages, we discern no requirement from the
statutes . . . that the stages be conducted at
two separate hearings. Moreover, since a
proceeding to terminate parental rights is
heard by the judge, sitting without a jury, it
is presumed, in the absence of some
affirmative indication to the contrary, that
the judge, having knowledge of the law, is
able to consider the evidence in light of the
applicable legal standard and to determine
whether grounds for termination exist before
proceeding to consider evidence relevant only
to the dispositional stage.
In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38 (1986);
see In
re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004)
(“However, so long as the [trial] court applies the different
evidentiary standards at each of the two stages, there is no
requirement that the stages be conducted at two separate
hearings.”). We must now consider whether a two-stage termination hearing
may also be held concurrently with an N.C.G.S. § 7B-802
adjudicatory hearing on an abuse, neglect, or dependency petition.
“When a petition for termination of parental rights is filed in the
same district in which there is pending an abuse, neglect, or
dependency proceeding involving the same juvenile, the court on its
own motion or motion of a party may consolidate the action[.]”
N.C. Gen. Stat. § 7B-1102(c) (2005). Respondent argues that if a
trial court consolidates an abuse, neglect, or dependency
adjudication with termination proceedings, then DSS is not required
to attempt reunification efforts, thereby sending “a signal that
DSS does not need the trial court's permission in establishing a
permanent plan of care prior to deciding unilaterally to seek a
case plan of termination of parental rights.” We disagree.
In cases (such as this) where the trial court has found that
reunification efforts would be dangerous or futile under N.C.G.S.
§ 7B-507(b), the juvenile code presents no obstacle to simultaneous
hearings on an abuse, neglect, and dependency petition and a
termination of parental rights petition. Indeed, judicial economy
and efficiency may be best served by a consolidated hearing in
cases where the evidence necessary to support a finding that a
juvenile is abused or neglected may be nearly identical to the
evidence necessary to support a finding that grounds for
termination exist.
See N.C. Gen. Stat. § 7B-1100(2) (the spirit
and intent of juvenile code is to “[r]ecognize the necessity forany juvenile to have a permanent plan of care
at the earliest
possible age”)(emphasis added).
Here, the trial court properly concluded that reunification
efforts would be dangerous due to a continuing threat of immediate
harm to R.B.B. Specifically, the trial court found “the age of the
child, the detailed admission of [respondent's] frustration with
the baby's crying, the number of injuries, the extent of the
injuries, [respondent's] knowledge of the danger of leaving the
baby with [her boyfriend] and her insistence on continuing to do so
when friends and family members encouraged her not to do so
outweigh any potential benefits that this Court can find to the
reunification process.” The trial court concluded that grounds
existed to terminate respondent's parental rights under N.C. Gen.
Stat. § 7B-1111(a)(1) by finding and concluding R.B.B. was abused
and neglected based on clear, cogent and convincing evidence. The
trial court then separately concluded that it is “in the best
interest[s] of the child . . . that the parental rights of
[respondent] be terminated with regard to R.B.B. and that the
permanent plan of adoption be pursued immediately.” It is clear
the allegations in both the abuse and neglect petition and the
termination petition relied on much of the same evidence.
We emphasize how important it is for the trial court, when
issuing its orders, to indicate the appropriate standard at each
phase of the proceedings regardless of whether or not the hearings
are conducted separately or, as in this case, consolidated into one
hearing.
Shepard, 162 N.C. App. at 221, 591 S.E.2d at 6 (“However,so long as the [trial] court applies the different evidentiary
standards at each of the [] stages, there is no requirement that
the stages be conducted at two separate hearings.”). For purposes
of ultimate clarity in consolidated hearings, trial courts are
encouraged to either: (a) issue separate orders addressing the
separate components of the consolidated hearings; or (b) sub-divide
a single order into independent sections addressing each component
of the consolidated hearing, with each section containing its own
evidentiary standard recitation, findings of fact, conclusions of
law, and appropriate order. Accordingly, while we caution the
trial court on the importance of clarity of findings of fact and
conclusions of law in consolidated hearings, we hold that in the
instant case, the trial court did not err by simultaneously
conducting all adjudicatory and dispositional hearings related to
both the abuse and neglect petition and the termination of parental
rights petition. These assignments of error are overruled.
II
[2] Respondent argues the trial court erred by failing to
require DSS to use reasonable efforts for reunification. North
Carolina General Statutes, Section 7B-507 states the trial court's
order placing or continuing placement of a juvenile with DSS must
contain findings regarding reasonable efforts to reunify the
juvenile with the parent unless the court is ordering that such
reunification efforts cease. N.C. Gen. Stat. § 7B-507 (2005).
“Where efforts to prevent the need for the juvenile's placement
were precluded by an immediate threat of harm to the juvenile, thecourt may find that the placement of the juvenile in the absence of
such efforts was reasonable.” N.C. Gen. Stat. § 7B-507(a) (2005).
In finding of fact two of the order on “Need for Continued
Custody Abuse, Neglect” filed 19 September 2006, the trial court
found:
2. Pursuant to N.C.G.S. § 7B-506, the Court
makes the following findings of fact as
to the efforts, if any, which have been
made to prevent or eliminate the need for
placement of the juvenile into custody.
The Department was precluded by an
immediate threat of harm to the juvenile
and placement of the juvenile in the
absence of such efforts was reasonable.
In finding of fact forty-two of the “Adjudication, Disposition and
Termination of Parental Rights Order” filed 5 April 2007:
42. The child's injuries were of such a
serious nature that the Department was
precluded from making reasonable efforts
to prevent or eliminate the need for the
placement of the juvenile outside of the
home.
Here, the trial court repeatedly found that the immediate threat of
harm to R.B.B. outweighed the reasonable efforts to reunify him
with respondent. Due to the severe abuse by the mother and the
mother's reaction to the boyfriend's abuse, the trial court
determined it was not in the best interests of the child to order
DSS to use reasonable efforts to reunify R.B.B. with respondent, as
it was too dangerous to do so. The trial court properly complied
with N.C.G.S. § 7B-507. This assignment of error is overruled.
IV & V
[3] Respondent argues the trial court erred by finding and
concluding respondent's parental rights should be terminated andbasing the termination on a felonious child abuse charge. We
disagree.
In determining whether a termination of parental rights is
proper, we review whether there is an evidentiary support for the
trial court's findings and whether the trial court's conclusions
are supported by its findings.
In re Gleisner, 141 N.C. App. 475.
480, 539 S.E.2d 362, 356 (2000). The trial court's findings must
be based upon clear, cogent and convincing evidence.
In re Smith,
146 N.C. App. 302, 304, 552 S.E.2d 184, 186 (2001). A trial court
only needs to find one statutory ground for termination before
proceeding to the dispositional phase of the hearing. N.C. Gen.
Stat. § 7B-1111(a) (2005);
In re Shermer, 156 N.C. App. 281, 285,
576 S.E.2d 403, 406 (2003). According to N.C. Gen. Stat. § 7B-
101(1), an abused juvenile is:
Any juvenile less than 18 years of age whose
parent, guardian, custodian, or caretaker: a.
Inflicts or allows to be inflicted upon the
juvenile a serious physical injury by other
than accidental means; b. Creates or allows to
be created a substantial risk of serious
physical injury to the juvenile by other than
accidental means[.]
N.C.G.S. § 7B-101(1) (2005).
The trial court found and concluded R.B.B. was an abused
juvenile. Dr. Emanuel testified that R.B.B.'s injuries were not
accidental and that “someone . . . physically abused this child.”
In her statement to the police, respondent admitted throwing R.B.B.
in the air, hitting R.B.B.'s head against a wall, and that during
diaper changes, she “gets frustrated so she takes [R.B.B.'s] legs
and picks [him] up and twists” his legs. Respondent statedR.B.B.'s injuries “came from her” and she knew what she was doing
to R.B.B. was wrong. Respondent's live-in boyfriend said he did
not want to babysit R.B.B. because he had an anger problem; however
respondent continued to allow him to care for R.B.B. even after she
knew R.B.B. had been injured while left in her boyfriend's care.
Where, as here, it is clear the trial court based the termination
on detailed findings and conclusions as to the ongoing, severe and
repeated abuse of R.B.B., respondent's argument that the
termination was based solely on felonious child abuse
charges lacks
merit. These assignments of error are overruled.
VI
[4] Respondent argues the trial court erred by finding and
concluding it was in the child's best interests to terminate
respondent's parental rights. We disagree.
§ 7B-1110. Determination of best interests of
the juvenile
(a) After an adjudication that one or more
grounds for terminating a parent's rights
exist, the court shall determine whether
terminating the parent's rights is in the
juvenile's best interest. In making this
determination, the court shall consider the
following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental rights
will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive parent,
guardian, custodian, or other permanent
placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2005). We review the trial court's
conclusion that a termination of parental rights would be in the
best interest of the child on an abuse of discretion standard.
In
re V.L.B., 168 N.C. App. 679, 684, 608 S.E.2d 787, 791 (2005)
(citation omitted). “Abuse of discretion exists when the
challenged actions are manifestly unsupported by reason.”
Barnes
v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004)
(internal quotation marks omitted).
In the case
sub judice, the trial court, in its discretion,
properly considered the factors enumerated in N.C.G.S. § 7B-1110(a)
(2005). Specifically, the trial court found R.B.B. “is very bonded
to his foster parents” and that given the “age of the child”
returning R.B.B. to respondent would not be in his best interest.
The trial court found R.B.B. did not develop as many illnesses in
foster care as when in respondent's custody and that R.B.B.'s
“current placement is appropriate and is in the best interest of
the child.” The trial court's order to terminate respondent's
parental rights was not an abuse of discretion. This assignment of
error is overruled.
Affirmed.
Judges MCGEE and HUNTER concur.
Footnote: 1