Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 April 2007
In re S.M.S
No. 03 J 52
Appeal by Respondent-mother from judgment entered 19 August
2005 by Judge H. Paul McCoy, Jr., in District Court, Halifax
County. Heard in the Court of Appeals 6 February 2006.
Joyce L Terres and Jeffrey L. Jenkins for Halifax County
Department of Social Services, Petitioner-Appellee.
Womble, Carlyle, Sandridge, & Rice, by Christopher G. Daniel,
Guardian ad Litem for Petitioner-Appellee.
Winfred H. Dillon for Respondent-mother.
This appeal arises from the trial court's order terminating
Respondent-mother's parental rights. Because the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence, and the findings of fact support the conclusions of law,
we affirm the trial court's order.
In North Carolina, a termination proceeding is conducted in
two stages, adjudication and disposition. N.C. Gen. Stat. §§ 7B-
1109 and 1110. At the adjudication stage, the trial court takes
evidence, finds facts, and adjudicates whether any of the statutory
circumstances under G.S. 7B-1111 for terminating parental rights
exists. N.C. Gen. Stat. § 7B-1109(e). At the adjudication stage,the trial court must make findings of fact which must be supported
by clear, cogent and convincing evidence. N.C. Gen. Stat. § 7B-
1109(f). If the petitioner produces sufficient evidence to show
grounds exist to terminate the parental rights at the adjudication
stage, then the trial court assesses at the disposition stage
whether terminating the parental rights would be in the best
interest of the child. N.C. Gen. Stat. § 7B-1110(a).
In this appeal,
Respondent contends that (I) Findings of Fact
Numbers 8, 10, 14, 15, 18, 19, 21, and 22 are not supported by
clear, cogent, and convincing evidence; and
(II) the findings of
fact do not support the conclusion that grounds exist to terminate
her parental rights. We address the pertinent facts in the
discussion of these issues.
Respondent argues that the trial court's Findings of Fact
Numbers 8, 10, 14, 15, 18, 19, 21, and 22
, in whole or in part, are
not supported by clear, cogent, and convincing evidence. First,
Respondent contends that the trial court improperly considered
reports of the social worker and guardian ad litem which were not
incorporated in all of the previous trial court orders. She
contends that without all of the reports, the previous orders,
standing alone, would not provide clear, cogent, and convincing
evidence to support the trial court's findings.
It is well established that [a]s to the court file generally,
a court may take judicial notice of earlier proceedings in the same
cause. In re Byrd, 72 N.C. App. 277, 279, 324 S.E.2d 273, 276(1985). Moreover, in a termination of parental rights hearing,
the trial court must admit and consider all evidence of relevant
circumstances or events which existed or occurred either before or
after the prior adjudication of neglect. In re Ballard, 311 N.C.
708, 716, 319 S.E.2d 227, 232-233 (1984). Since the prior orders,
the social worker's summary reports, and the guardian ad litem's
reports were relevant and a part of the same proceedings, the trial
court properly considered them.
Respondent further challenges parts of Findings of Fact
Numbers 8 and 21 on the grounds that no evidence supported the
findings that S.M.S. was allowed to observe or experience sexual
contact between the Respondent and her male companions while
sleeping with them. Respondent also challenges a similar finding
in Finding of Fact Number 18.
However, evidence from the DSS and GAL reports substantiated
S.M.S. had been allowed to sleep with Respondent and her boyfriend,
and was exposed to sexual activity. The record also shows evidence
that S.M.S. continued to act out sexually, and to disclose sexual
activity of her mother. Suffice it to say, the record provides
sufficient evidence to show that S.M.S. was exposed to and observed
numerous instances of sexual activity between her mother and
Likewise this evidence supports
Finding of Fact Number 10
which states that at the review hearings, the court found that
because of her own sexual abuse and the sexual behavior she
witnessed while in her mother's custody, the minor child had, atvarious times, acted out in a sexual manner which was highly
inappropriate for a child of her young age.
We further find evidence in the record to support the trial
Findings of Fact Numbers 14, 15, 19, and 22 regarding
documented history of sexual offenses of Respondent's son
that he was a sexual abuser. Respondent contends that DSS reports
providing evidence supporting these findings were not admissible.
Because Respondent did not challenge the admissibility of these
reports at trial, she may not do so for the first time on appeal.
See Hearndon v. Hearndon, 132 N.C. App. 98, 510 S.E.2d 183 (1999).
Respondent also argues that the trial court erred because
findings of fact
do not support its conclusions of law to terminate
her parental rights. We find the evidence sufficient to support
the trial court's conclusion based on N.C. Gen. Stat. § 7B-
b) [Respondent-mother] has willfully left the
minor child in foster care for more than
twelve (12) months without showing to the
satisfaction of the Court that reasonable
progress under the circumstances has been made
in correcting the conditions which led to the
removal of the child, and that poverty is not
the sole reason that she has been unable to
make such progress.
Under section 7B-1111(a)(2), we must determine whether there
was clear, cogent, and convincing evidence that (1) [respondent]
willfully left the juvenile in foster care for more than twelve
months, and (2) that . . . respondent had failed to make reasonable
progress in correcting the conditions that led to the juvenile'sremoval from the home. In re Baker
158 N.C. App. 491, 494, 581
, 146 (2003) (internal quotations and citations omitted).
As to willfulness, [a] parent's willfulness in leaving a child in
foster care may be established by evidence that the parents
possessed the ability to make reasonable progress, but were
unwilling to make an effort. Id.
at 494, 581 S.E.2d at 146
(internal quotations and citations omitted). Moreover, this Court
has held [
e]xtremely limited progress is not reasonable progress.
In re B.S.D.S.
163 N.C. App. 540, 545, 594 S.E.2d 89
Here, S.M.S. was initially removed from Respondent's custody
on grounds that she was exposed to a substantial risk of physical
injury or sexual abuse because the parent has created conditions
likely to cause injury or abuse or has failed to provide, or is
unable to provide, adequate supervision or protection. The trial
court found that the family had domestic violence and drug use in
the home; S.M.S. had been exposed to adult sexual activity; and
Respondent was unable to make alternative child care arrangements
The trial court made several findings of fact which were
unchallenged by the Respondent, and are therefore binding on this
Court. See Koufman v. Koufman
, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991). For example: (1) Respondent's lack of judgment in
raising her daughter is overwhelming as is the absence of basic
parenting skills; and (2)during visits between Respondent andS.M.S., S.M.S. would act out sexually more than she normally did
in the foster home.
Since a valid finding on one statutorily enumerated ground is
sufficient to support an order terminating parental rights, we
affirm the termination of Respondent's parental rights under
Gen. Stat. § 7B-1111(a)(2) (2005)
. In re Stewart Children
, 82 N.C.
App. 651, 655, 347 S.E.2d 495, 498 (1986).
Judges STEELMAN and JACKSON concur.
Report per rule 30(e).
*** Converted from WordPerfect ***