IN THE MATTER OF
S.T.K. and N.S.K., Davidson County
Minor Children. 04 J 265, 05 J 120
Davidson County Department of Social Services, by Staff
Attorney Charles E. Frye, III, for petitioner-appellee.
Laura B. Beck for appellee Guardian ad Litem.
Hartsell & Williams, P.A., by Christy E. Wilhelm, for
respondent-appellant.
LEVINSON, Judge.
Respondent-mother appeals from orders terminating her parental
rights in her children S.T.K. and N.S.K.
(See footnote 1)
We affirm.
On 30 May 2002, when S.T.K. was about ten months old,
respondent and her boyfriend (Rich) brought respondent's twenty-
three month old son, T.D.,
(See footnote 2)
to the Thomasville Medical Center.
T.D., who had no heartbeat and was not breathing, died that night.
Respondent spoke with a DSS social worker at the hospital and
offered the following explanation of T.D.'s death: Earlier thatnight, respondent went to the store and left Rich in charge of
S.T.K. and T.D. Upon her return, Rich told her that while she was
gone he had heard a “thump” noise and found T.D. at the bottom of
the stairs. Respondent also told the social worker that she and
Rich had dated for about eight months, that Rich helped her care
for her children, and that he did not spank or abuse them. Rich
gave a similar account of the evening's events, telling the social
worker that when he found T.D. at the bottom of the stairs the
child was not moving. Rich and respondent signed a DSS safety plan
that required Rich to have no contact with S.T.K.
No criminal charges were brought against respondent or Rich as
a result of T.D.'s death. However, S.T.K., who was born in July
2001, was placed in DSS custody after her brother T.D. died. On 6
July 2002 DSS filed a petition alleging that S.T.K. was abused,
neglected, and dependent. A hearing was conducted on 28 October
2002. Medical testimony offered in the adjudication phase tended
to show that T.D. had been the victim of previous physical abuse,
and that his death was not caused by a fall down a flight of
stairs. Dr. Deborah Radisch, a pathologist with the North Carolina
Medical Examiner's office, testified that the autopsy of T.D.
revealed numerous untreated serious injuries, including broken
bones and burns. Dr. Radisch found the child's death “suspicious”
in part because the absence of external injuries was inconsistent
with a fall down stairs. Dr. Radisch's expert opinion was that the
presence of multiple healed injuries was consistent with a
diagnosis of battered child syndrome. Dr. Heather Cooper, thephysician who had tried unsuccessfully to revive T.D., also
testified at the adjudication hearing. She testified that shortly
before his death T.D. had suffered wounds causing bleeding in his
brain, and that a forceful blow would be required to cause such
injuries. Her opinion was that the child's condition was
inconsistent with the explanation offered by respondent.
On 18 February 2003 S.T.K. was adjudicated an abused,
neglected, and dependent child. The disposition order directed
that S.T.K. remain in the custody of DSS. Respondent was ordered
to follow various requirements of a DSS case plan, such as
completing a parenting class and obtaining counseling. She was
also specifically ordered to “maintain a suitable residence and not
allow Mr. Rich to reside in said residence.” A review order signed
8 April 2003 found, inter alia, that:
5. [Respondent] does not acknowledge Mr. Rich's
role in the death of her son, T.D. She has
not been able to explain the multiple injuries
that her son suffered. . . . [DSS] is
concerned that [respondent] continues to have
a relationship with Mr. Rich.
Following several review hearings, the trial court in an order
signed 14 November 2003 returned legal and physical custody of
S.T.K. to respondent. The order specified that “[respondent] shall
maintain a suitable residence and will not permit Mr. Rich to be
present within her home.”
Rich was in prison from June 2003 until April 2004. The day
after Rich's release, DSS received reports that he was at
respondent's home. DSS investigated S.T.K.'s living situation, and
asked respondent several times to provide the name and address ofher child care provider. On 28 June 2004 Rich was observed going
out the back door of respondent's apartment, just as respondent and
S.T.K. left by the front door. Thereafter, S.T.K. was placed in
DSS custody, and DSS filed a new petition alleging that S.T.K. was
neglected and dependent, on the grounds that respondent failed to
protect S.T.K. from Rich. On 23 August 2004 S.T.K. was adjudicated
neglected, pursuant to respondent's stipulation to the facts
surrounding T.D.'s death and to Rich's presence in her home after
his release from prison. In its disposition order the court
ordered that the permanent plan for S.T.K. was termination of
parental rights.
In January 2005 respondent gave birth to N.S.K., a daughter
fathered by Rich. Shortly after N.S.K.'s birth, DSS filed a
petition alleging that the child was neglected and dependent, and
N.S.K. was placed in DSS custody. The allegations in the petition
set out respondent's history of involvement with Rich, and her
failure to prepare for N.S.K.'s birth. A hearing was conducted in
April 2005, and in an order entered 10 August 2005 the trial court
adjudicated N.S.K. neglected. In its initial disposition order,
the court ordered a concurrent plan of guardianship with a relative
or termination of parental rights and adoption. However, on 29
August 2005 the court changed the permanent plan to termination of
parental rights and adoption.
On 23 December 2004 DSS filed a petition for termination of
respondent's parental rights in S.T.K., alleging as grounds for
termination that (1) respondent had neglected S.T.K. and wouldprobably neglect her again if S.T.K. were returned to her custody;
(2) respondent willfully left S.T.K. in foster care for more than
twelve months without making satisfactory progress towards
correcting the conditions that had led to S.T.K.'s removal from her
home; and (3) respondent had failed to pay a reasonable amount
towards S.T.K.'s support. On 25 July 2005 DSS filed a petition for
termination of respondent's parental rights in N.S.K., alleging as
grounds for termination that (1) respondent had neglected N.S.K.
and would probably neglect her again if the child were returned to
her custody; and (2) respondent had committed a homicide or felony
assault against another of her children. Following hearings
conducted 29 September 2005, 13 October 2005, 3 November 2005, and
21 November 2005, the trial court on 21 December 2005 entered
orders terminating respondent's parental rights in N.S.K. and
S.T.K. From these orders respondent timely appealed.
20. An autopsy was performed on T.D. on May 31,
2002 by Dr. Deborah L. Radisch, Pathologist
with the Office of the [State's] Chief Medical
Examiner[.] . . . [Dr. Radisch] found that
T.D. had sustained a subdural hematoma, or
bleeding under the outer layer of the brain; a
subarachnoid hematoma, or bleeding in the
inner layer of the brain; and an injury to the
left optic nerve sheath between the eye and
the brain, with blood under the nerve sheath.
21. That a forceful blow to the head would be
required to inflict the injuries described
above, according to Dr. Cooper's testimony. .
. . [A] fall down stairs . . . would [not]
have been sufficient to cause the brain
injuries discovered in the autopsy, in Dr.
Cooper's opinion. . . .
22. That the autopsy also revealed the following
previously unknown injuries to [T.D.]:
a. He had an untreated healed fracture to his
right femur (thigh bone) . . . [that] was
never diagnosed and/or treated[, and] . . .
could have been suffered from three weeks to
ninety days before the date of death.
b. T.D. also had a healed fracture to his
ninth rib. . . .
c. T.D. also had healed burns to his feet.
The burns were severe second to third degree
burns[,] . . . suffered approximately two (2)
months before the date of death. . . .
23. That the Court took judicial notice of the
second adjudication order entered on August
23, 2004 . . . [which] includes a stipulation
that the minor child was a neglected child as
defined by G.S. 5 78-101(15) in that she does
not receive proper care, supervision or
discipline from her parents or caretakers and
that she lives in an environment injurious to
her welfare in that:
(a) That S.T.K. was adjudicated to be an
abused, neglected, and dependent juvenile . .
. as a result of [T.D.] having experienced
intentionally inflicted and neglectful
injuries and the death of [T.D.]. . . . S.T.K.
remained in foster care from June 6, 2002
until October 14, 2003[, when] . . . legal and
physical custody of [S.T.K. was] returned to
[respondent, who was] . . . order[ed] to
'maintain a suitable residence and . . . not
permit . . . Rich to be present within her
home.'
(b) That on June 24, 2004, [DSS] received a
report that . . . Rich was in the home of
[respondent.]
(d) That on June 28, 2004 . . . [law
enforcement officers]. . . witnessed
[respondent] go into her home, pick up thechild, and come back outside. It was then
noted that Mr. Rich came out of the residence
(e) . . . Mr. Rich was in prison from August
13, 2003 until April 7, 2004. The agency
received its first report stating he was back
in [respondent's] home on April 8, 2004. . . .
(f) That the following Findings of Fact were
entered on October 28, 2002 . . .
On May 30, 2002 twenty-three month old T.D.
brother of S.T.K. was brought to [the]
Emergency Room . . . in cardiac arrest[, and]
. . . died on May 30, 2002.
[Respondent] claimed to representatives of
[DSS] and law enforcement that she went to the
store . . . [leaving] the children in the care
of Mr. Rich. Mr. Rich reported that he was at
the back door of the residence selling a bag
of marijuana when he heard a thump and found
T.D. at the bottom of the stairs. . . .
. . . Deborah L. Radisch . . . testified at
the adjudication hearing . . . [as] an expert
in . . . forensic pediatric pathology. . . .
[Her] autopsy revealed that [T.D.] suffered
injuries immediately preceding his death that
. . . were not consistent with . . . [a] fall
down stairs.
The autopsy . . . also revealed multiple
healed serious injuries[.]
The [Autopsy] Report . . . concluded that “the
multiple healed injuries in this age child are
consistent with intentionally inflicted and
neglected injuries.” It was the opinion of
Dr. Radisch that the multiple healed injuries
were consistent with . . . battered child
syndrome. . . .
It was the opinion of Dr. Cooper that the
absence of any acute injuries or bruises to
the child on May 30 was inconsistent with the
explanation that child had fallen down stairs.
. . .
24. That based on Dr. Cooper's evidence and
opinions, the Court finds that T.D.'s injuries
on May 30, 2002 and those discovered in theautopsy are consistent with a diagnosis of
'battered child syndrome.'
25. That T.D.'s caretakers on the day he died were
[respondent] and Mr. Rich. [Respondent] had
been the child's caretaker since birth. . . .
[Respondent] reported that Mr. Rich didn't
spank T.D. and that she didn't think he would
hurt the child.
26. . . . [Respondent] has never told [DSS] or the
Court . . . how the child died[,] . . . has
not admitted responsibility for [T.D.'s]
death[, and] . . . consistently refuses to put
any blame on Mr. Rich. . . .
27. That S.T.K. was taken into [DSS] custody after
T.D. died[, and] . . . adjudicated neglected
on October 28, 2002. . . .
28. . . . [In January 2003, respondent] agreed to
keep Mr. Rich away from her home. . . . [In
April 2003 respondent] . . . was ordered not
to have Mr. Rich in the home. . . . [In June
2003 respondent] was again told not to have
Mr. Rich in the home or around the child. . .
. [On] October 14, 2003 . . . [S.T.K.'s] legal
and physical custody was returned to
[respondent, who was ordered] . . . that Mr.
Rich was not to be in the home. . . .
29. . . . [Respondent] was aware . . . that she
was not to have S.T.K. around Mr. Rich and
that he was not to be in her home. . . .
30. . . . [Respondent] regularly visited Mr. Rich
in prison, . . . [but] did not tell [DSS.] . .
. This is a part of [her] pattern of knowingly
withholding information from [DSS] and the
Court[.]
31. That in April 2004 [DSS heard] . . . that
[respondent] was having contact with Mr. Rich.
[DSS] representatives tried to contact
[respondent, who] . . . did not respond[.]
32. . . . On June 28, 2004, . . .[respondent told
[DSS that S.T.K.] was with a person . . . in
High Point, but could give no address or phone
number[.] . . .
33. That [DSS] filed a neglect petition and
obtained an order to assume custody [of
S.T.K.] . . . An officer detained [respondent]
as she was leaving her apartment . . . with
[S.T.K.]. Another officer observed Mr. Rich
leaving [respondent's] apartment[,] . . .
further illustrat[ing respondent's] evasion of
[DSS] . . . her pattern of deceit, and her
continued relationship with [Rich.] . . .
34. That a sibling to this juvenile, N.S.K., was
born while S.T.K. was in [DSS] custody. . . .
[Rich is] the father of N.S.K. [A] neglect
petition was filed as to N.S.K.[, who was] . .
. adjudicated neglected on April 25, 2005[.] .
. . [Respondent] testified at the disposition
hearing . . . that T.D.'s death had been
“blown out of proportion.” . . .
35. That shortly after N.S.K.'s birth . . . [DSS]
received information that [respondent] had
given birth[.] . . . [At the hospital] two men
came to the room. . . . [One] was introduced
as 'Andre Gilbert.' [A DSS social worker]
later saw that man in court where he was
identified as [Rich]. [Respondent] had said
nothing at the hospital to correct the false
name given by Mr. Rich. . . . [Respondent] was
trying to mislead DSS and conceal her ongoing
contact with Dewayne Rich.
. . . .
38. . . . T.D. was diagnosed with battered child
syndrome. T.D.'s injuries were not caused by
accidental means or by isolated contact with a
stranger. [Respondent and Rich] were his only
caretakers[.] . . . The court makes the
inference permitted by law that T.D.'s
caretakers, [respondent and Rich],
intentionally and feloniously committed the
serious injuries shown by the autopsy
evidence[.]
39. . . . [Respondent's] residence . . . [is] not
a safe one because of the presence of [Rich.]
. . .
. . . .
42. That the Court finds that [respondent] has not
been forthcoming with truthful information to[DSS] and this Court regarding the minor child
and the circumstances of her life. . . .
43. . . . [Respondent] still denies that she has
been a bad parent to this child or her sibling
T.D. . . . [Respondent] admits to speaking to
[Rich] as recently as the week prior to the
last hearing date in this matter. . . .
44. That the Court finds that [respondent] has
continued to follow in the same pattern of
denial that has been present since 2002. She
still believes that Dewayne Rich is not a
danger to her children or to her home. . . .
. . . .
47. That the conduct of [respondent] . . . has
been such as to demonstrate that [respondent]
will not promote the healthy and orderly
physical and emotional growth of the child.
In its order terminating respondent's parental rights in N.S.K.,
the trial court made essentially identical findings of fact about
T.D.'s injuries and death, respondent's ongoing relationship with
Rich, and her attempts to conceal this from DSS. With respect to
N.S.K., the trial court also found that respondent “identified
[Rich] as the biological father of said minor child.”
We conclude that the trial court's findings of fact support
its conclusion that S.T.K. and N.S.K. were neglected as defined by
N.C. Gen. Stat. § 7B-101(15). We have considered and rejected
respondent's arguments to the contrary.
Respondent points out that many of the trial court's findings
of fact “concerned the death of T.D.” or “related to Mr. Rich's
involvement in respondent's life” and excludes these findings of
fact in her analysis of the trial court's conclusion that
respondent neglected her children. Respondent essentially arguesthat none of the findings of fact addressing T.D.'s death, Rich's
or respondent's role in T.D.'s death, or respondent's refusal to
end her relationship with Rich, should be considered in determining
the existence of grounds for termination of parental rights. On
this basis respondent asserts that the trial court's conclusion
that the children were neglected was not supported by the findings
of fact “which mostly related to an event that occurred in 2002[.]”
However, respondent cites no authority for the proposition
that this evidence is not relevant, and our statutory and common
law indicates such evidence is pertinent to a court's resolution of
the issue of neglect and its likelihood in the future. See G.S. §
7B-1111(a)(1) (“In determining whether a juvenile is a neglected
juvenile, it is relevant whether that juvenile lives in a home
where another juvenile has died as a result of suspected abuse or
neglect or lives in a home where another juvenile has been
subjected to abuse or neglect by an adult who regularly lives in
the home.”).
“In [In re] McLean, [135 N.C. App. 387, 521 S.E.2d 121
(1999),] this Court upheld the trial court's adjudication of
neglect of an infant taken into DSS custody while still in the
hospital maternity ward, when the infant's sibling had been killed
at the age of three and a half months as the result of a willfully
inflicted head trauma by the infant's father.” In re A.B., __
N.C. App. __, __, 635 S.E.2d 11, 15 (2006). “It is clear from [§]
7A-517(21) [now § 7B-101(15)] that evidence of abuse of another
child in the home is relevant in determining whether a child is aneglected juvenile. . . . [T]he statute affords the trial judge
some discretion in determining the weight to be given such
evidence.” In Re Nicholson and Ford, 114 N.C. App. 91, 94, 440
S.E.2d 852, 854 (1994). “[T]he statutory definition of a neglected
child includes living with a person who neglected other children[.]
. . . [The] facts of the case included the fact that respondent .
. . was failing to take responsibility for harm that befell her
children as a result of her conduct. We hold that these findings
of fact taken in their entirety are sufficient to support the
conclusion that P.M. is a neglected child.” In re P.M., 169 N.C.
App. 423, 427, 610 S.E.2d 403, 406 (2005).
Respondent also contends that the trial court failed to find
facts “to indicate that she was disobeying court orders in any
way[.]” This assertion is contradicted by the trial court's
numerous findings establishing that respondent ignored repeated
orders not to allow Rich in her home or around her child.
We conclude that the trial court did not err by concluding
that respondent neglected both S.T.K. and N.S.K. Under N.C. Gen.
Stat. § 7B-1111(a) (2005), the trial court may terminate parental
rights upon finding the existence of one or more of the statutory
grounds for termination. In the instant case, the trial court
concluded that respondent had neglected S.T.K. and N.S.K. In
regards to S.T.K., the court also concluded that respondent had
left S.T.K. in foster care for more than twelve months without
making satisfactory progress. As regards N.S.K., the trial court
also concluded that respondent had committed a homicide or assaulton another of her children. The trial court thus found two grounds
for termination to exist with respect to both S.T.K. and N.S.K.
“However, this Court has held that '[a] valid finding on one
statutorily enumerated ground is sufficient to support an order
terminating parental rights.' Therefore, even though we find there
is clear, cogent, and convincing evidence to support termination
based on each of the statutory grounds provided by the trial court,
we need only address one of respondent's assignments of error
challenging the sufficiency of the evidence.” In re Greene, 152
N.C. App. 410, 416, 568 S.E.2d 634, 638 (2002) (quoting In re
Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498
(1986)) (internal citation omitted). This assignment of error is
overruled.
In a related argument, respondent asserts that the trial court
erred by concluding that termination of parental rights was in the
best interests of N.S.K. and S.T.K., because the conclusion was
based on findings of fact about T.D.'s abuse and death, and
respondent's continued relationship with Rich. Respondent cite no
authority suggesting that these findings are not relevant to the
court's decision. This assignment of error is overruled.
We have considered respondent's remaining arguments and find
them to be without merit. For the reasons discussed above, we
conclude that the trial court did not err by entering an order for
termination of parental rights.
Affirmed.
Judges McGEE and JACKSON concur. Report per Rule 30(e).
The judges participated and submitted this opinion for filing
prior to 7 July 2007.
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