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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 5 June 2007
IN THE MATTER OF:
I.N.P. No. 99-J-109
Appeal by respondent from judgment entered 13 January 2006 by
Judge C. Thomas Edwards in Catawba County District Court. Heard in
the Court of Appeals 23 April 2007.
J. David Abernethy, for petitioner-appellee Catawba County
Department of Social Services.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Holly M. Groce, for petitioner-appellee Guardian ad Litem.
MARTIN, Chief Judge.
I.N.P. was born on 2 September 1996. On 1 June 1999, I.N.P.
was adjudicated neglected and dependent. The Catawba County
Department of Social Services (DSS) removed I.N.P. from the
custody of her biological parents and placed her with respondent,
her paternal grandmother. Respondent adopted I.N.P. on 31 July
On 23 October 2002, DSS received a report that I.N.P. had
bruises on her back, shoulder, arm and face. Respondent signed a
safety plan stipulating that I.N.P. was not to receive any corporal
punishment. On 31 January 2003, DSS received a second report of
marks on I.N.P.'s back, arms and legs. In connection with thereport, I.N.P.'s biological father was charged and convicted of
assault on a juvenile. Respondent signed a second safety plan. In
March 2003, DSS substantiated allegations that I.N.P.'s biological
father was continuing to live with respondent. The trial court
issued an order for non-secure custody and removed I.N.P. from the
On 22 October 2003, the trial court adjudicated I.N.P.
neglected by respondent for permitting I.N.P. to live in an
injurious environment. At the disposition, the court ceased
reunification efforts with respondent, allowing for a final visit.
A permanency planning hearing was held on 4 May 2004. The trial
court implemented a permanent plan of terminating respondent's
parental rights and adoption. On 12 January 2005, DSS filed a
motion to terminate respondent's parental rights. Beginning 18
October 2005, the trial court held an adjudicatory hearing, which
was concluded on 15 November 2005, at which time the trial court
ruled that I.N.P. was neglected by respondent, that such neglect
was reasonably likely to continue, and that respondent had
willfully left I.N.P. in foster care for more than 12 months
without making reasonable progress in correcting the conditions
which led to her removal. With consent of the parties, the court
indicated that it would draft findings of fact at a later time. A
disposition hearing was set for 13 December 2005. On 13 December,
the trial court held the disposition hearing and, after hearing
respondent's testimony, the arguments of counsel, and considering
the court's file and the reports of the guardian ad litem,determined that the child's best interests would be served by
terminating respondent's parental rights. Separate orders of
adjudication and disposition were entered on 13 January 2006.
Respondent gave notice of appeal from both orders on 20 January
A proceeding to terminate parental rights is a two-stage
process, consisting of an adjudicatory stage and a dispositional
stage. See In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 908 (2001). In the adjudicatory stage, the petitioner must
prove by clear, cogent, and convincing evidence that one or more of
the statutory grounds for terminating parental rights exists. N.C.
Gen. Stat. § 7B-1109(f) (2005). If the petitioner meets this
burden, the trial court moves to the dispositional stage and is
given the discretion to terminate a respondent's parental rights
based on the juvenile's best interest. N.C. Gen. Stat. § 7B-
1110(a) (2005); see also In re Carr, 116 N.C. App. 403, 406-07, 448
S.E.2d 299, 301 (1994).
In the present case, the trial court entered separate orders
of adjudication and disposition. In the adjudication order, the
trial court made extensive findings of fact and concluded that two
statutory grounds existed for termination of respondent's parental
rights. The trial court then proceeded to the disposition hearing,
after which it entered a second order, making findings based upon
the evidence heard at that hearing, the court's file, and reportsfiled by the social worker and the guardian ad litem. In that
order, the trial court terminated respondent's parental rights.
[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the
record[.] N.C. R. App. P. 10(a) (2005). In this appeal,
respondent specifically assigns error to the trial court's findings
of fact and conclusions of law in the disposition order terminating
her parental rights, but does not assign error to any of the
court's findings of fact or conclusions of law in the adjudication
order in which it found, by clear, cogent, and convincing evidence,
the existence of two statutory grounds for termination. In fact,
none of the thirty assignments of error contained in the record are
directed to the adjudication order. Notwithstanding respondent's
attempt to argue the insufficiency of the evidence to support those
findings and conclusions, because respondent has not assigned error
to any of the trial court's adjudicatory findings of fact or
conclusions of law, they are binding on appeal, In re C.D.A.W., 175
N.C. App. 680, 686, 625 S.E.2d 139, 143 (2006), and the
adjudicatory order is no longer before us for review.
In her first fifteen assignments of error directed to the
disposition order, respondent argues that the trial court erred by
reciting the testimony of each witness rather than making actual
findings of fact, and, specifically, that Findings 6 through 19,
were not supported by clear[,] cogent and convincing evidence.
As noted above, while the existence of grounds for termination of
parental rights must be proven by the petitioner based on clear,cogent, and convincing evidence, N.C. Gen. Stat. § 7B-1109(f)
(2005), the trial court's decision, once such grounds are proven,
is vested in its sound discretion.
Although respondent assigned error to findings of fact 6
through 19 of the disposition order, she argues only that findings
of fact 9 through 15 are in error. As to the remaining findings of
fact assigned as error, questions raised by assignments of error
in appeals from trial tribunals but not then presented and
discussed in a party's brief, are deemed abandoned. N.C. R. App.
P. 28(a) (2005). Respondent challenges the following findings of
fact within the disposition order:
9. [Respondent] was present at several
hearings concerning the first petition
involving the minor child's biological
parents. These hearings include the hearing
on October 26, 1999, when [I.N.P.'s father]
had been released from prison; the hearing on
November 30, 1999, including a finding of fact
what [sic] [Respondent] was making new day
care plans because of Ms. Eno's instability;
and on February 15, 2000, when the court
determined that it was unsafe for the father
and mother to leave the residence with the
minor child. The court found that [I.N.P.'s
father] had engaged in domestic violence and
neglect. As of October of 2002, [respondent]
knew that the child had received inappropriate
discipline and nonetheless allowed [I.N.P.'s
father], the only other person in the home, to
be around [I.N.P.]. [Respondent]'s statements
that she was unaware of the history of the
case are unconvincing.
10. The minor child was subjected to much
difficulty by her biological parents.
[Respondent] should have been and in fact was
aware of the history of the case, and despite
that fact she allowed the biological mother
and father to provide care for the minor
child. After the minor child had a history of
physical injury prior to the adoption,[respondent] signed a safety plan in October
of 2002 that the minor child was to receive no
corporal punishment. Within four months
thereafter, the minor child had red marks on
her back, arms, and legs, and [respondent]
signed another safety plan allowing no contact
by [I.N.P.'s father] and required appropriate
supervision. Two safety plans were not enough
to provide safety for the minor child.
11. [Respondent] was unable to acknowledge the
harm inflicted by the biological mother or
father, and as a result was unable to take
effective action to deter further harm. She
allowed [I.N.P.'s father] to live with her and
the minor child in 2003, resulting in further
physical injury to the minor child.
[Respondent]'s explanation was that she had to
work and needed child care. The actions of
[respondent] were inconsistent with her
knowledge of previous difficulties manifested
by each of the biological parents and resulted
in a failure to provide adequate care.
12. [Respondent] made overtures toward
counseling in late 2004. The counselor left a
message to [respondent] to contact her; that
did not occur.
13. [Respondent] today, for the first time,
said she now acknowledges the consequences of
allowing [I.N.P.'s father] to provide care for
the minor child, which violated the safety
plan designed to protect the child. She
testified that she now has learned that her
decisions to allow [I.N.P.'s father] to
provide care were not appropriate given the
previous history of the case and her adoption
of the minor child.
14. The minor child requires a strong and
consistent and selfless role model to over
come [sic] her difficulties as a consequence
of the history of this case. The minor child
has reported to Ms. Buckland that as a result
of emotional, physical, and sexual abuse by
the father, that the minor child does not wish
to reestablish contact with [respondent]. The
minor child reports that she does not want to
see [respondent] again, and wants to put her
entire past, including her parents'
relinquishments, behind her.
15. The minor child has reported great
resentment and anger towards [respondent] and
feels that [respondent] did not protect her
despite knowledge of past harm she had
suffered. The minor child will have
difficulty in developing trusting bonds in the
We find no fault with the form or substance of the trial court's
findings in this case. Further, the findings are adequately
supported by the evidence submitted during the termination
Next, respondent assigned error to the trial court's decision
that terminating respondent's parental rights is in I.N.P.'s best
interests. A 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). At the
disposition stage, a court is required to issue an order of
termination unless it determines that the best interests of the
child require that the parental rights of such parent not be
terminated. In re Parker, 90 N.C. App. 423, 431, 368 S.E.2d 879,
884 (1988) (quotation omitted). In making this determination, a
trial court must consider the juvenile's age, the likelihood of
adoption, whether termination would facilitate the permanent plan
for the juvenile, the bond between the juvenile and the parent, the
quality of the relationship between the juvenile and the proposed
adoptive parent and other relevant information. N.C. Gen. Stat. §
Respondent argues that the trial court abused its discretion
by basing its decision in large part on I.N.P.'s relationship withher foster family. We disagree. First, the relationship between
I.N.P. and her proposed adoptive parents was a permissible
consideration. Second, the trial court addressed the other
statutorily mandated considerations in reaching its decision. The
trial court noted that I.N.P. was nine years old at the time of the
disposition. The trial court addressed the prospects for adoption
and the facilitation of I.N.P.'s permanent plan in stating that
the permanent plan for the minor child continues to be adoption
and this permanent plan is in the best interest of the child.
I.N.P. had great resentment and anger towards respondent for
failing to protect her from the abuses of her father. The trial
court found that respondent was unable to acknowledge the harm
inflicted by the biological mother and father and, as a result, was
unable to take effective action to deter further harm.
Accordingly, we reject respondent's argument and affirm the trial
court's conclusion that it was in I.N.P.'s best interests to
terminate respondent's parental rights.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).
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