IN THE MATTER OF:
Durham County
A.B., No. 02 J 63
A Minor Child.
Cathy Moore, for petitioner-appellee Durham County Attorney's
Office.
K. Edward Greene for respondent-appellant mother.
Robert T. Newman as guardian ad litem for juvenile.
Martha McKee as guardian ad litem for respondent mother.
ELMORE, Judge.
This appeal arises from the district court's decision entered
on 8 November 2005 to terminate respondent's parental rights to her
daughter, A.B (the child). After careful review, we affirm the
order of the trial court.
Respondent entered the legal custody of the Durham Department
of Social Services (DSS) as a dependent and neglected juvenile in
1997. Respondent gave birth to the child, A.B., in 2002 while
still in legal custody of DSS. Prior to giving birth, respondent
was hospitalized at John Umpstead for psychiatric medication
adjustment for Bipolar Disorder. She was re-admitted after giving
birth. On 10 April 2002, DSS filed a petition requesting an orderof nonsecure custody, alleging that the child would be exposed to
a risk of serious physical injury or abuse due to respondent's
inability to provide adequate care or supervision as a result of
her hospitalization for psychiatric treatment. In its petition,
DSS stated that it was necessary to assume custody in order to
place respondent and child together upon respondent's release from
John Umpstead. There were no family members that could assist in
the care of the child until respondent was released. The identity
of the child's father remains unknown.
The child was placed in a therapeutic foster home and
respondent joined her after being released from the hospital on 23
April 2002. The two remained together in the foster home until
respondent was readmitted to John Umpstead on 27 May 2002.
Respondent was then moved to a Level IV placement at Brynn Marr
Hospital on 29 August 2002. The child did not qualify for
placement in the hospital and was transferred to a foster home in
Durham on 17 June 2002.
The trial court conducted a hearing on 22 October 2002,
during which the child was adjudicated a dependent child.
Disposition was continued for one month to allow DSS to set up a
regular visitation schedule for respondent and child and to assess
respondent's reaction to visitation. DSS arranged for visitation,
but prior to a visit occurring, respondent was charged with assault
and removed to the local county jail. The court suspended
respondent's visitations for one month to allow her time to
stabilize her mental health and refrain from assaultive behavior. The court further ordered that the visitations take place at the
discretion of the mental health professionals treating respondent.
While respondent was incarcerated, her treatment team at Brynn
Marr decided that she was no longer a candidate for the program due
to her combative and violent behavior. The jail did not allow its
residents to take psychotropic medicines, so the treatment team
strongly recommended that she be taken from the jail to a mental
health center for evaluation. She was evaluated and involuntarily
committed to John Umpstead's CPI Unit on 8 November 2002. Prior to
this date, respondent had two visits with the child. Her
visitation resumed on 27 December 2002.
Respondent progressed and stepped down to a Level III group
home with Woodbridge Alternatives in Fayetteville. While at the
group home, she took her medicine and did not engage in assaultive
behavior. However, she was suspended from school for talking back
to a teacher, cursing at her, and disrupting class.
The trial court held permanency planning hearings on 8 April
2003 and 30 September 2003, during which it ordered that
respondent's parental rights not be terminated because of
respondent's progress. The court ordered that DSS continue to
carefully monitor her ability to parent and that if her condition
declined, the plan would be changed to termination of her parental
rights.
Respondent turned eighteen in November, 2003. She could not
find anyone in her family or any past care takers who were willing
to let her live with them, so she agreed to remain in foster care. However, due to her age she was no longer eligible to remain in the
group home. She was moved to a foster home through Woodbridge
Alternatives on 8 November 2003. Respondent remained at the home
until 10 December 2003, when she left due to a disagreement with
her foster mother. Respondent was then moved to another foster
home. She continued to have behavioral problems in school. After
several more incidents, respondent was discharged from Woodbridge
Alternatives on 4 June 2004. Respondent then requested placement
in Durham. While there, she stayed in two foster homes, a hotel,
and the homes of family and friends.
At the permanency planning hearing on 27 July 2004, the trial
court ordered DSS to initiate termination of parental rights within
six months if respondent did not relinquish her parental rights and
had not made objective progress towards independence. The court
ordered that she enroll in school, find a job, or participate in a
job training program; establish independent housing, demonstrate
that she was able to budget her finances and sustain a household
for two people; participate actively in individual or group therapy
at least four times per month or as often as recommended by her
therapist; and keep all of her prescriptions current and take her
medicine as directed.
On 23 November 2004, DSS filed a petition to terminate
respondent's parental rights, alleging, inter alia, that respondent
failed to comply with her case plan.
In an order entered on 8 November 2005, the trial court
concluded that respondent neglected the child and that there was areasonable probability of repetition of neglect; that she willfully
left the child in a placement outside the home for more than twelve
months without showing that reasonable progress had been made in
correcting the conditions that led to the removal of the child; and
that she was incapable of providing for the child due to mental
illness, which condition was reasonably probable to continue for
the foreseeable future. As a result, the court ordered that
respondent's parental rights be terminated. It is from this order
that respondent appeals.
The standard of review is well-established:
When reviewing an appeal from an order
terminating parental rights, our standard of
review is whether: (1) there is clear,
cogent, and convincing evidence to support the
district court's findings of fact; and (2) the
findings of fact support the conclusions of
law. Clear, cogent, and convincing evidence
is greater than the preponderance 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. If the decision is supported
by such evidence, the district court's
findings are binding on appeal even if there
is evidence to the contrary.
In re A.D.L., J.S.L., C.L.L., 169 N.C. App. 701, 710, 612
S.E.2d 639, 645 (2005) (citations and quotations omitted).
Respondent first contends that the trial court erred in that
its findings of fact were not based on clear, cogent, and
convincing evidence that she neglected the child within the meaning
of N.C. Gen. Stat. § 7B-101(15), and that such neglect existed at
the time of the termination hearing. Respondent argues that
because she did not have custody of the child at the time of thehearing she could not be found to have neglected the child.
However, in In re Ballard, our Supreme Court adopted the following
reasoning of the Court of Appeals of Indiana:
In most termination cases, as in this case,
the children have been removed from the
parents' custody before the termination
hearing. It would be impossible to show that
the children were currently neglected by their
parents under these circumstances. To hold
the State to such a burden of proof would make
termination of parental rights impossible. We
agree that the parents' fitness to care for
their children should be determined as of the
time of the hearing. The trial court must
consider evidence of changed conditions.
However, this evidence of changed conditions
must be considered in light of the history of
neglect by the parents and the probability of
a repetition of neglect.
311 N.C. 708, 714, 319 S.E.2d 227, 231 (1984) (quoting In re
Wardship of Bender, 170 Ind. App. 274, 285, 352 N.E. 2d 797, 804
(1976)).
In re Ballard further held that “the determinative factors
must be the best interests of the child and the fitness of the
parent to care for the child at the time of the termination
proceeding.” Id. at 715, S.E.2d at 232.
Our statutes define a neglected juvenile, in pertinent part,
as one “who does not receive proper care, supervision, or
discipline from the juvenile's parent. . . .” N.C. Gen. Stat. §
7B-101(15) (2006). It is unnecessary for a juvenile to suffer
actual injury or impairment as a result of the parent's failure to
provide “proper care, supervision, or discipline;” a “substantial
risk of such impairment as a consequence of the failure to provide
proper care, supervision, or discipline” will suffice. In reStumbo, 357 N.C. 279, 283, 582 S.E.2d 255, 258 (2003) (quotations
and citations omitted).
Evidence was presented at trial showing that respondent had no
stable, independent housing; that she had no job and was not in
school; that she had very little money or resources; and that she
is unclear on what resources would be necessary to properly care
for the child. Particularly noteworthy is the trial court's
finding of fact No. 28, which addresses respondent's instability,
and to which respondent did not assign error. Findings of fact to
which no error is assigned “are presumed to be supported by
competent evidence and are binding on appeal.” In re A.S., ___
N.C. App. ___, ___, 640 S.E.2d 817 (2007) (citing Koufman v.
Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)). “The
inability to maintain secure living arrangements is relevant to a
determination of whether there is a substantial risk of injury to
the juvenile.” In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d
672, 676 (1997) (citation omitted). This evidence constitutes
clear, cogent, and convincing evidence to support the trial court's
findings of fact. Likewise, the trial court's findings of fact
support its conclusion of law that respondent has neglected the
child and that there is a reasonable probability of repetition of
that neglect.
Having found a legitimate basis for the trial court's
termination of respondent's parental rights, we need not address
respondent's additional assignments of error regarding the trial
court's other grounds for termination. “The finding of any one ofthe grounds is sufficient to order termination.” In re C.L.C.,
K.T.R., A.M.R., E.A.R., 171 N.C. App. 438, 447, 615 S.E.2d 704, 709
(2005) (quoting Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264,
267 (2003)).
Respondent next argues that the trial court abused its
discretion by holding that the child's best interests were served
by terminating respondent's rights. “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.” N.C. Gen. Stat. § 7B-1110(a)
(2005).
(See footnote 1)
Even “upon a finding that grounds exist to authorize
termination, the trial court is never required to terminate
parental rights under any circumstances, but is merely given the
discretion to do so.” Bost v. Van Nortwick, 117 N.C. App. 1, 7,
449 S.E.2d 911, 914 (1994) (quoting In re Tyson, 76 N.C. App. 411,
419, 333 S.E.2d 554, 559 (1985)). “The trial court has discretion
to terminate parental rights if it finds termination would be in
the best interest of the juvenile. The standard for appellate
review of the trial court's decision to terminate parental rightsis abuse of discretion.” In re M.N.C., 176 N.C. App. 114, 123, 625
S.E.2d 627, 633 (2006) (citations omitted).
Respondent suggests that the trial court erred in failing to
make the findings required by N.C. Gen. Stat. § 7B-1110(a) (2005),
specifically:
(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).
The trial court noted the child's age in finding of fact No.
1; the likelihood of adoption in finding of fact No. 24; the
permanent plan of adoption in findings of fact Nos. 24 and 25; the
bond between respondent and the child in findings of fact Nos. 21
and 26; and the quality of the relationship between the child and
proposed adoptive parents in finding of fact No. 24. Contrary to
respondent's contention, the trial court addressed all of the
required factors. Moreover, the record shows every indication that
the child will be best served by adoption. The trial court did not
abuse its discretion.
Respondent's remaining contentions, that the trial court erred
in its admission of testimony regarding DSS records and its taking
judicial notice of respondent's courtroom demeanor, are withoutmerit. Moreover, even if this court were persuaded by respondent's
arguments, any error would be non-prejudicial. Accordingly, we
decline to further examine these contentions.
Having conducted a thorough review of the record on appeal, we
can discern no error. We therefore affirm the trial court's order.
Affirmed.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).
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