IN THE MATTER OF:
M.E.H. Davidson County
No. 05 J 151
Charles E. Frye, III, for petitioner-appellee Davidson County
Department of Social Services.
Richard E. Jester for respondent-appellant.
Laura B. Beck, Guardian ad Litem Attorney Advocate
WYNN, Judge.
Where an appellant fails to properly argue that the findings
of fact are unsupported by clear, cogent, and convincing evidence,
the findings are binding on appeal.
(See footnote 1)
Here, Respondent failed to
argue that the findings of fact are not supported by clear, cogent,
and convincing evidence. Because the findings of fact are binding
on appeal and those findings support the trial court's conclusions,
we uphold the order terminating Respondent's parental rights.
The facts pertinent to the instant appeal are as follows: On
11 February 2004, Davidson County Department of Social Services(DSS) filed a petition alleging abuse, neglect and dependency of
Respondent's seven-month old child, M.E.H. The petition alleged
that
Respondent, who was diagnosed as Schizo Affective, allowed two
registered sex offenders including Jonathan Moses to reside in her
home with M.E.H. and that while Respondent was sleeping on 20
December 2003
, Moses took M.E.H. from her crib, removed her diaper
and digitally penetrated her vagina.
The petition also alleged
that Respondent admitted that when she noticed M.E.H.'s diaper was
on backwards, she suspected that the child had been molested;
however, she did not report her suspicion to law enforcement nor
did she take the child to a doctor. Moses, who later admitted to
having sexually molested M.E.H.,
was still staying in the home with
M.E.H. when a social worker
went to respondent's home on 30
December 2003.
The petition further alleged that Respondent
allowed a registered sex offender, James Waller, Jr., to reside in
her home in 2004.
M.E.H. was taken from the home of Respondent,
and placed in protective custody of DSS.
In May 2004, the trial court adjudicated M.E.H. abused,
neglected and dependent.
Respondent subsequently entered into a
case plan with DSS, in which she agreed to maintain stable housing;
continue weekly therapy classes at Daymark Recovery Services; keep
her medication appointments with her doctor at Daymark Recovery
Services; take her medication as prescribed; and successfully
complete parenting classes.
In March of 2005, Respondent
reaffirmed the goals of her original case plan and agreed to attend
classes at SCAN (Stop Child Abuse Now).
The initial permanent plan of care for M.E.H. was
reunification, but the court changed the plan to a concurrent plan
of reunification and termination of parental rights in February of
2005, and then to termination of parental rights and adoption in
August of 2005.
On
19 September 2005, DSS filed a petition to terminate the
parental rights of Respondent and the putative father under
N.C.
Gen. Stat. § 7B-1111(a)(1)(neglect)
; N.C. Gen. Stat. § 7B-1111
(a)(2) (willfully left the child in foster care or placement
outside the home); and N.C. Gen. Stat. § 7B-1111
(a)(3)
(failure to
pay a reasonable portion of the cost of care for the child).
On 19
July 2006, the trial court concluded that grounds for termination
of respondent's parental rights existed under N.C. Gen. Stat. §
7B-1111(a)(1). The trial court further concluded that it was in
the minor child's best interest to terminate respondent's parental
rights. The trial court also terminated the parental rights of the
putative father, who does not appeal. Respondent appeals.
The issue on appeal is whether the trial court erred in
terminating Respondent's parental rights based upon the finding of
neglect.
Termination of parental rights involves a two-stage process.
In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908
(2001). At the adjudicatory stage, "the petitioner has the burden
of establishing by clear and convincing evidence that at least one
of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111
exists." In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602(2002). "If the trial court determines that grounds for
termination exist, it proceeds to the dispositional stage, and must
consider whether terminating parental rights is in the best
interests of the child." Id. at 98, 564 S.E.2d at 602. The trial
court's decision to terminate parental rights is reviewed under an
abuse of discretion standard. Id.
A neglected juvenile, is defined in part as "[a] juvenile who
does not receive proper care, supervision, or discipline from the
juvenile's parent." N.C.G.S. § 7B-101(15) (2006). To prove
neglect in a termination case, there must be clear and convincing
evidence (1) the juvenile is neglected within the meaning of
N.C.G.S. 7B-101(15), and (2) "the juvenile has sustained 'some
physical, mental, or emotional impairment . . . or [there is] a
substantial risk of such impairment'" as a consequence of the
neglect. In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501
(2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d
898, 901-02 (1993)). "
"A finding of neglect sufficient to terminate parental rights
must be based on evidence showing neglect at the time of the
termination proceeding." In re Young, 346 N.C. 244, 248, 485
S.E.2d 612, 615 (1997). “[A] prior adjudication of neglect may be
admitted and considered by the trial court in ruling upon a later
petition to terminate parental rights on the ground of neglect."
In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984).
If the child has been removed from the parents' custody before the
termination hearing, and the petitioner presents evidence of priorneglect, including an adjudication of such neglect, then "[t]he
trial court must also consider any evidence of changed conditions
in light of the evidence of prior neglect and the probability of a
repetition of neglect." Id. at 715, 319 S.E.2d at 232. Thus,
where “there is no evidence of neglect at the time of the
termination proceeding . . . parental rights may nonetheless be
terminated if there is a showing of a past adjudication of neglect
and the trial court finds by clear and convincing evidence a
probability of repetition of neglect if the juvenile were returned
to [his or] her parents.” In re Reyes, 136 N.C. App. 812, 815, 526
S.E.2d 499, 501 (2000).
When, as here, a child has not been in the custody of the
parent for a significant period of time prior to the termination
hearing, a trial court may find that grounds for termination exist
upon a showing of a "history of neglect by the parent and the
probability of a repetition of neglect."
In re Shermer, 156 N.C.
App. 281, 286, 576 S.E.2d 403, 407 (2003). With respect to
Respondent, the trial court found that M.E.H. had previously been
adjudicated neglected, and there was a probability of future
neglect if she were returned to respondent's custody.
Respondent asserts the “evidence presented, and the
[f]indings of [f]act do not support the conclusion that
[respondent] will probably neglect [M.E.H.] if their lives are
reunited.”
As to Respondent, the court found that she: (1) was diagnosed
at Daymark with Dysthymic Disorder and Borderline PersonalityDisorder; (2) declined to participate in M.E.H.'s rehabilitation
for certain developmental delays; (3) sporadically attended her
appointments at Daymark in October of 2004 and in February of 2005;
(4) abandoned her individual therapy and medication checks at
Daymark since November of 2005; (5) stopped seeing her therapist
and taking her medication because she felt like she did not need
the therapy or the medication any more; (6) started to miss
individual and group sessions at SCAN in February of 2005; (7) last
attended an individual therapy session at SCAN in May of 2005 and
did not complete the group therapy through the Parents and Partners
program at SCAN; (8) successfully completed the Nurturing Family
Program and training of the Partners in Parenting Program, but had
missed five visits between December of 2004 and February of 2005,
four visits in June and July of 2005, and four visits in August of
2005; and (9) failed to comply with provisions of her case plans
and with “prior orders of this court that address the conditions
that caused the juvenile to be adjudicated a neglected juvenile.”
Although Respondent assigns error to these findings, she does
not make any argument as to why they are unsupported by competent
evidence. Indeed, she admits that she did not attend all of her
meetings and visits, but points to the progress she did make.
These arguments address questions of credibility and the weight of
the evidence that may only be decided by the trial court.
Consequently, Respondent has abandoned her assignments of error on
these issues, and they are deemed binding on appeal. See In re
P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005)(concluding respondent had abandoned factual assignments of error
when she "failed to specifically argue in her brief that they were
unsupported by evidence").
A review of the record and transcript
shows the trial court's findings are based upon orders entered in
the case and testimony from social workers and respondent.
Respondent nevertheless argues that the trial court ignored
significant progress and, therefore, erred in concluding there was
the probability of a repetition of neglect. Here, the trial court
made findings that Respondent had made progress with her case plan
and had been granted unsupervised visitation in December of 2004.
The trial court found, however, that Respondent's improvements
started to deteriorate as evidenced by the decrease in her
attendance for therapy at Daymark and SCAN and in her medication
checks.
We, therefore, conclude the trial court had clear, cogent, and
convincing evidence to determine that M.E.H. had been subjected to
a history of neglect and was likely to be similarly neglected in
the future and that the
findings are sufficient to show neglect.
We further conclude that these findings of fact support the trial
court's conclusion that
grounds existed to terminate respondent's
parental rights under N.C. Gen. Stat. § 7B-1111(a)(1).
See, e.g.,
In re Davis, 116 N.C. App. 409, 414, 448 S.E.2d 303, 306 (the
parents' failure to "obtain[] continued counseling, a stable home,
stable employment, and [attend] parenting classes" was sufficient
to show a probability that neglect would be repeated if the child
were returned to the care of the parents), disc. review denied, 338N.C. 516, 452 S.E.2d 808 (1994); In re Johnson, 70 N.C. App. 383,
389, 320 S.E.2d 301, 305-06 (1984) (holding that improper care
during a trial placement, a failure to make lifestyle changes, and
sporadic attendance at counseling sessions constituted evidence of
neglect).
Finally, the trial court did not abuse its discretion in
concluding that it was in the best interests of M.E.H. to terminate
Respondent's parental rights. Upon finding adequate grounds for
termination of parental rights, the petitioner and the respondent
may each offer relevant evidence as to the child's best interests.
In re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86 (2002).
The
decision of whether to terminate parental rights is within the
trial court's discretion. In re McMillon, 143 N.C. App. 402, 408,
546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d
341 (2001).
"[T]he child's best interests are paramount, not the
rights of the parent." In re T.K., 171 N.C. App. 35, 39, 613
S.E.2d 739, 741, aff'd, 360 N.C. 163, 622 S.E.2d 494 (2005).
Here, the trial court properly found that Respondent had
neglected M.E.H and there was a probability of repetition of the
neglect. Moreover, the evidence at the termination hearing
demonstrated that the child was doing well in her foster home.
During the disposition portion of the proceedings, social worker
Twanna Robinson testified that M.E.H has made “tremendous progress”
with regard to her speech delays since being in her foster home;
that she calls her foster parents “mom and dad[;]” and that
M.E.H.'s foster parents are interested in adopting her. Further,the child's guardian ad litem testified that it would be in the
child's best interests to terminate respondent's parental rights.
In light of the evidence presented during the termination
proceedings and discussed above, we are unable to conclude that the
trial court's determination that terminating the parental rights of
Respondent was in the best interests of the child is arbitrary or
manifestly unsupported by reason. Therefore, this assignment of
error is overruled.
Affirmed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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