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.
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.
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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