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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1653


Filed: 5 June 2007

IN THE MATTER OF:                
                            Mecklenburg County
A.C.,                         Nos. O4 JT 688
J.C.,                            05 JT 289                                            
    Minor Children.

    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 petitioner-appellee.

    Robin E. Strickland for respondent-appellant.

    Womble Carlyle Sandridge & Rice, PLLC, by Murray C. Greason, III, for guardian ad litem.

    GEER, Judge.

    Respondent mother appeals from an order terminating her parental rights as to her minor children, A.C. ("Amber") and J.C. ("Jack").   (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 benefits.
    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 appointments.
    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 particularly significant.
    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, 148 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. § 7B-1111." Id. 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 Allred, 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. Koufman, 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 is carrying."
    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 received 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. Alford, 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 recording gap.
    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 Nolen, 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).

Footnote: 1
    In order to maintain the children's privacy and for ease of reading, we will use the pseudonyms "Amber" and "Jack" throughout this opinion.
Footnote: 2
    We also reject respondent's challenge to the trial court's finding that she did not hold steady employment. In an argument somewhat isolated from her main contentions, respondent asserts that this finding was "irrelevant" to the termination proceeding. Respondent's assertion that her "work history is irrelevant in regards to whether or not she can provide proper care and supervision for her children" is entitled to little discussion. It cannot be disputed that a parent's work history is relevant in considering whether that parent can financially support her children.

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