Appeal by respondent from order entered 16 August 2006 by
Judge Louis A. Trosch, Jr. in Mecklenburg County District Court.
Heard in the Court of Appeals 23 April 2007.
Mecklenburg County Attorney's Office, by Tyrone C. Wade, for
Robin E. Strickland for respondent-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Murray C. Greason,
III, for guardian ad litem.
Respondent mother appeals from an order terminating her
parental rights as to her minor children, A.C. ("Amber") and J.C.
(See footnote 1)
In this appeal, she challenges 48 of the trial court's
68 findings of fact, arguing that the court failed to make genuine
findings based on clear and convincing evidence. Much of her
attack is premised on two questionable assertions: (1) that a
psychologist's parenting capacity evaluation report was never
admitted into evidence and (2) that the psychologist was not swornprior to testifying. In advancing these arguments, respondent
attempts to take advantage of a substantial gap in the transcript
to argue that the evaluation was never admitted and the
psychologist was not sworn.
Contrary to respondent's urging, we will not, without more,
assume that error occurred during portions of a trial that went
accidentally unrecorded, and we therefore reject the premise of
respondent's argument. We also find no merit in respondent's broad
attack on the findings of fact. Based upon our review of the
record, we hold that the findings are supported by clear, cogent,
and convincing evidence and reflect a considered weighing of the
evidence. Because respondent presents no persuasive basis to
question the validity of the trial court's factual findings and has
failed to demonstrate that the conclusions of law are not supported
by those findings of fact, we affirm.
In 2003, because of respondent's inability to provide proper
care for Amber, the Mecklenburg County Department of Social
Services, Youth and Family Services Division ("YFS"), became
involved with respondent's family and began providing "Family
Intervention" services. At the time, respondent was failing to pay
consistent attention to Amber's medical needs. Approximately 40
doctor's appointments were either cancelled or simply missed, in
spite of the fact that Amber suffered from poor weight gain and
severe eczema. Respondent's housing situation was also not stable,
and she spent periods of time living with various relatives.Although not employed, respondent receives social security
In early 2004, Amber went to live with her maternal
grandmother for four months, until respondent obtained housing in
May 2004 and took the child back. After re-assuming responsibility
for Amber, respondent continued to miss the child's medical
On 6 July 2004, YFS filed a petition alleging that Amber was
neglected and dependent. On 16 August 2004, the district court
adjudicated Amber a neglected and dependent juvenile and continued
custody of the child with YFS. Following a disposition hearing on
2 November 2004, the trial court ordered respondent to comply with
a mediated case plan that had been previously entered into by the
parties. The mediated case plan required respondent to complete
a F.I.R.S.T. assessment; cooperate with and follow the
recommendations of an in-home parent educator; demonstrate acquired
skills to the satisfaction of the parent educator; follow the
recommendations of a parenting capacity evaluation; attend Amber's
medical appointments; maintain sufficient income to meet the
child's needs; maintain an appropriate, safe, and stable living
environment; participate in supervised visitation; and continue
contact with her social worker.
In March 2005, shortly after Jack, Amber's younger sibling,
was born, YFS filed another juvenile petition and obtained non-
secure custody over Jack as well. At the time of Jack's birth,
respondent had not paid her gas bill and had no heat in her home. In addition, Dr. Bruce Duthie, after completing a parenting
capacity evaluation of respondent, concluded that respondent is
"not able to function as the primary custodial parent." The
evaluation further concluded that respondent suffered from a
combination of mild mental retardation and a personality disorder.
Against this backdrop, the district court adjudicated Jack as a
dependent juvenile and continued custody with YFS on 13 June 2005.
The district court changed the permanent plan for the
juveniles from reunification to adoption by order entered 21
February 2006. The court found that, despite all of the
intervention efforts by YFS, respondent "is not able to
consistently demonstrate how to care for the needs of these
juveniles." In changing the permanent plan, the court found the
fact that Amber and Jack are "special needs" children to be
On 7 March 2006, YFS filed a verified motion to terminate
parental rights. The termination of parental rights hearing was
held on 11 May 2006, 18 May 2006, and 12 July 2006 before the
Honorable Louis A. Trosch, Jr. in Mecklenburg County District
Court. Following the hearing, the court found two statutory
grounds for terminating respondent's parental rights as to both
children: (1) under N.C. Gen. Stat. § 7B-1111(a)(1) (2005), she
neglected the children; and (2) under N.C. Gen. Stat. § 7B-
1111(a)(6), she is incapable of providing for the proper care and
supervision of the children, such that the children are dependent.
The court also concluded, under N.C. Gen. Stat. § 7B-1111(a)(2),that grounds existed to terminate respondent's parental rights to
Amber because she had willfully left Amber in foster care for more
than 12 months without showing to the satisfaction of the court any
sign of "reasonable progress." The court did not, however, reach
any conclusion under § 7B-1111(a)(2) with respect to Jack. Having
found grounds warranting termination of respondent's parental
rights and having concluded that termination was in the children's
best interests, the district court entered an order on 16 August
2006 declaring respondent's parental rights terminated. Respondent
thereafter gave notice of appeal.
Under the North Carolina Juvenile Code, a termination of
parental rights proceeding involves two distinct phases: an
adjudicatory stage and a dispositional stage. In re Fletcher
N.C. App. 228, 233, 558 S.E.2d 498, 501 (2002). "First, in the
adjudicatory stage, the trial court must determine whether the
evidence clearly and convincingly establishes at least one ground
for the termination of parental rights listed in N.C. Gen. Stat. §
If the trial court has determined the existence of
at least one ground for termination, this Court's role during
appellate review is to ascertain whether "the court's findings of
fact are based upon clear, cogent and convincing evidence and
[whether] the findings support the conclusions of law." In re
, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).
Factual findings that are supported by the evidence are
binding on appeal, even though there may be evidence to thecontrary. In re Williamson
, 91 N.C. App. 668, 674, 373 S.E.2d 317,
321 (1988). Moreover, "[w]here no exception is taken to a finding
of fact by the trial court, the finding is presumed to be supported
by competent evidence and is binding on appeal." Koufman v.
, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
If the petitioner has proven at least one ground for
termination, "the trial court proceeds to the dispositional phase
and must consider whether termination is in the best interests of
the child." In re Shermer
, 156 N.C. App. 281, 285, 576 S.E.2d 403,
406 (2003); see also
N.C. Gen. Stat. § 7B-1110(a) (2005) ("the
court shall determine whether terminating the parent's rights is in
the juvenile's best interest"). This Court reviews that decision
under an abuse of discretion standard. In re Nesbitt
, 147 N.C.
App. 349, 352, 555 S.E.2d 659, 662 (2001).
Respondent focuses primarily on challenging the trial court's
findings of fact. Respondent relies upon three principal arguments
in urging us to reject the disputed findings. We address each of
those arguments in turn.
First, she contends that many of the court's findings are
based on or refer to a "parenting capacity evaluation" that she
claims was not admitted into evidence and, therefore, cannot serve
as the basis for any finding of fact. The general conclusion of
this evaluation, which was completed in January 2005 by
psychologist Dr. Duthie, is that respondent "is not able to
function as the primary custodial parent for [Amber] and that shewill not likely be able to effectively parent the child [Jack] she
Contrary to respondent's assertion that the evaluation was not
admitted into evidence, the termination order specifically states
that "the Court received into evidence and considered the
following: . . . Plaintiff's Exhibit 3 . . . Parenting Capacity
Evaluation for [respondent] dated January 31, 2005." In finding of
fact 15, the court further states that the "parenting capacity
evaluation is incorporated herein by reference."
Respondent, nonetheless, urges that the evaluation _ and any
findings based on the evaluation _ must be disregarded because
"[t]he transcript does not reflect that the Parenting Capacity
Evaluation was ever introduced into evidence." Dr. Duthie, the
author of the evaluation, testified in the termination hearing by
way of telephone. According to the transcript, there was a gap in
the recording when YFS called Dr. Duthie to testify. As the court
reporter noted in the transcript, "apparently the first portion of
[Dr. Duthie's] testimony was not recorded." When the recording of
the proceeding resumed, Dr. Duthie was already in the midst of
testifying about his evaluation of respondent. Dr. Duthie's
testimony reflects that he was questioned almost exclusively about
the specific findings of his report. Indeed, respondent's trial
counsel asked the doctor several questions on cross examination
that referred to particular pages of the report.
In this instance, we cannot accept respondent's assumption
that the evaluation report was never admitted into evidence basedon a gap in the recording. Given that the trial judge specifically
stated that the report was received into evidence, and respondent's
trial counsel questioned the author about the report, we can see no
basis for holding that the report was not received into evidence.
We have found nothing in the record _ and respondent points to
nothing _ to suggest that the evaluation report was not
into evidence during the lapse in the recording.
We note that respondent could have made an effort to
reconstruct the substance of what transpired during the recording
mishap in order to affirmatively demonstrate that the report was
never admitted. See In re Clark
, 159 N.C. App. 75, 83, 582 S.E.2d
657, 662 (2003) (explaining that party claiming to be prejudiced by
recording errors should "attempt to use Rule 9(c)(1) of the rules
of appellate procedure to provide a narration of the evidence in
order to 'reflect the true sense of the evidence received' to the
extent the record does not do so" (quoting N.C.R. App. P.
9(c)(1))). As this Court has noted, "'[a]n appellate court is not
required to, and should not, assume error by the trial judge when
none appears on the record before the appellate court.'" Hicks v.
, 156 N.C. App. 384, 390, 576 S.E.2d 410, 414 (2003) (quoting
State v. Williams
, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968)).
We, therefore, reject respondent's challenge to the factual
findings which rely on that evaluation report.
Respondent next makes a similar argument that all findings of
fact derived from the testimony of Dr. Duthie should be stricken
since the transcript does not reflect that he was properly sworn asa witness. Respondent argues that, because there is no evidence
that a proper oath was administered, the trial court violated
N.C.R. Evid. 603, which provides that "[b]efore testifying, every
witness shall be required to declare that he will testify
truthfully, by oath or affirmation administered in a form
calculated to awaken his conscience and impress his mind with his
duty to do so." For the reasons discussed above, we will not
presume that a trial error occurred during the initial unrecorded
portions of Dr. Duthie's testimony, especially in the absence of
any attempt by respondent to reconstruct what occurred during the
Moreover, we note that in a proceeding to terminate parental
rights, as in other proceedings, "a [party] may not argue on appeal
that the trial court erred in allowing a witness to testify without
being sworn, where the [party] did not object at trial." In re
, 117 N.C. App. 693, 696, 453 S.E.2d 220, 223 (1995).
Respondent has not established that she objected to the trial
court's admission of the purportedly unsworn testimony.
Accordingly, we hold the trial court did not err in basing findings
of fact on Dr. Duthie's testimony.
In her final challenge to the findings of fact, respondent
argues that a large number of the court's findings are mere
recitations of testimony from the petitioner's witnesses or
otherwise do not reflect a true weighing of conflicting testimony.
Having reviewed each of the specified findings of fact to which
respondent raises these objections, we disagree with respondent'scharacterization of the findings of fact. See In re Green
, 67 N.C.
App. 501, 505 n.1, 313 S.E.2d 193, 195 n.1 (1984) (recognizing that
a purported "finding" which "begin[s] by stating that the witness
'testified under oath . . .'" is a recitation of testimony and not
a finding of fact). The findings that she labels as improper
recitations of testimony are, in reality, proper findings of fact
based upon competent testimony. There is nothing inappropriate
about a trial court using testimony as a basis for drafting the
wording of a finding of fact so long as the court makes an
affirmative statement of fact rather than simply stating that a
witness testified to certain information.
We also disagree with respondent's contention that the
findings of fact are unsupported because the trial court failed to
consider evidence conflicting with the finding and failed to draw
inferences from the evidence in her favor. It is apparent from
reviewing the trial court's order that it considered all of the
evidence, but simply chose, as it was entitled to do, to credit the
testimony of petitioner's witnesses and give that testimony greater
weight than the evidence more favorable to respondent: "In a
nonjury trial, it is the duty of the trial judge to consider and
weigh all of the competent evidence, and to determine the
credibility of the witnesses and the weight to be given their
testimony. If different inferences may be drawn from the evidence,
the trial judge must determine which inferences shall be drawn and
which shall be rejected." In re Gleisner
, 141 N.C. App. 475, 480,
539 S.E.2d 362, 365-66 (2000) (internal citation omitted); see alsoIn re A.D.L.
, 169 N.C. App. 701, 710, 612 S.E.2d 639, 645 (where
findings are supported by clear and convincing evidence, "the
district court's findings are binding on appeal even if there is
evidence to the contrary"), disc. review denied
, 359 N.C. 852, 619
S.E.2d 402 (2005). Since the court's findings are supported by
clear, cogent, and convincing evidence, we are in no position to
reject them simply because respondent presented evidence that was
more favorable to her. Thus, respondent has articulated no reason
justifying this Court's overturning any of the trial court's
findings of fact.
(See footnote 2)
Respondent next purports to argue that the trial court's
findings of fact do not support its conclusions of law that grounds
existed to terminate her parental rights and that the children's
best interests would be served by termination. Respondent does
not, however, specifically discuss the requirements for each of the
grounds relied upon by the trial court. Nor does respondent
explain in what way she contends the actual findings of fact fail
to support the conclusions of law. Instead, a review of respondent's brief reveals that this
contention is simply a reiteration of respondent's prior arguments
regarding the evidence in the record favorable to her and the
sufficiency of the evidence to support the findings of fact. In
this section of her brief, respondent cites all the evidence that
she contends supports the conclusion that no neglect occurred, that
she has made reasonable progress to alleviate the conditions that
led to the removal of her children, and that she does not lack the
capacity to parent her children such that they are dependent.
Respondent asserts: "The record is full of references to
[respondent's] positive parenting skills." Based upon her
evaluation of the evidence, she then concludes that because she
made improvements in her parenting abilities, grounds did not exist
to terminate her parental rights, and the trial court erred in
concluding that it was in the best interests of the children to
terminate those rights.
In making this argument, respondent has overlooked our
standard of review. We may not reevaluate the evidence, but rather
are limited to the role of deciding whether "the court's findings
of fact are based upon clear, cogent and convincing evidence and
[whether] the findings support the conclusions of law." Allred
122 N.C. App. at 565, 471 S.E.2d at 86. Since we have concluded
that the findings of fact assigned as error are supported by clear,
cogent, and convincing evidence _ even though contrary evidence may
exist _ and since respondent has not made any argument that thosefindings of fact, if binding, fail to support the conclusions of
law, we affirm the trial court's order.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).