Appeal by respondent from judgment entered 5 October 2006 by
Judge David K. Fox in Henderson County District Court. Heard in
the Court of Appeals 30 April 2007.
Djuana L. Swann for petitioner-appellee.
Winifred H. Dillon for respondent-appellant.
Parker Poe Adams & Bernstein LLP, by R. Bruce Thompson II, for
guardian ad litem.
Respondent mother appeals from a judgment terminating her
parental rights to her minor child, C.B.L. ("Carla").
(See footnote 1)
respondent primarily disputes the trial court's conclusion thatgrounds existed to terminate respondent's parental rights. Because
we conclude that the findings of fact pertaining to neglect are
supported by competent evidence and that those findings, in turn,
support the trial court's conclusions, we affirm.
On 5 November 2003, the Henderson County Department of Social
Services ("DSS") filed a petition alleging that Carla, born earlier
in 2003, was neglected as a result of domestic violence occurring
between respondent and Carla's father beginning as early as April
2003, when respondent was four months pregnant with Carla. On 23
September 2003, a bystander had called law enforcement because
Carla's parents were fighting in a car. At the time, Carla was 18
days old and not properly secured in a car seat. DSS obtained non-
secure custody of Carla.
On 11 December 2003, respondent consented to an adjudication
of neglect. As conditions for reunification, the consent
memorandum required _ among other things _ that respondent complete
a counseling assessment and follow its recommendations; complete
and demonstrate benefit from domestic violence counseling; maintain
safe housing; and not allow Carla's father in the home until he
demonstrated substantial progress on his plan with DSS.
On 31 March 2004, a neighbor called law enforcement because of
a loud argument between respondent and Carla's father. Law
enforcement observed bruises on respondent's face and forehead and
a mark on her neck. Respondent admitted that the father had hit
her, and she had hit him back. Ultimately, it was determined thatrespondent's hand was broken. A week later, when responding to a
call from respondent claiming her car was stolen, law enforcement
again found the father at respondent's home despite the existence
of a restraining order. On 31 May 2004, law enforcement was called
to respondent's home a third time. Respondent had bruises on her
right arm and left leg caused when the father grabbed her as she
attempted to leave the house. For reasons not fully apparent from
the record, Carla's father was subsequently incarcerated.
In a 21 December 2004 review order, the trial court concluded
that respondent had complied with all of the aspects of her case
plan that were "within her power" and had made "significant
progress" toward the completion of her requirements. The court
noted, however, that because Carla's father had been incarcerated
for a period of time, respondent had not yet "had the opportunity
to demonstrate on a long-term basis that she will keep the father
out of her home . . . ." It was later discovered that, while
Carla's father had been incarcerated, respondent had visited him
and sent him numerous love letters. Carla's father was released
from incarceration in February 2005, having made little progress on
his case plan.
On 18 April 2005, the trial court entered an order providing
for a trial placement of Carla with respondent, provided that
neither respondent nor Carla had any contact with Carla's father.
The order specified that if DSS discovered that respondent was
having any contact with Carla's father, the trial placement would
end. Law enforcement officers responded to a disconnected 911 callfrom respondent's residence on 4 July 2005. Although the home was
empty when they arrived, respondent later admitted that Carla's
father had spent the weekend at her residence, had hit respondent
in the face, and had torn the phone off the wall when respondent
attempted to call 911. Carla was returned to foster care.
In a September 2005 meeting attended by respondent's
therapist, a social worker, and respondent to discuss respondent's
visitation with Carla, respondent surreptitiously allowed Carla's
father to listen to the session over the speaker phone of
respondent's cell phone. The therapist and social worker only
learned of this fact when they heard the father yelling through the
cell phone. Respondent's therapist subsequently expressed her
opinion that although respondent had sufficient community support,
respondent still chose to have a relationship with Carla's father
and could not "let go of that relationship."
On 7 September 2005, the trial court entered an order changing
the permanent plan from reunification to adoption, and DSS filed a
petition to terminate the parental rights of both respondent and
Carla's father on 23 November 2005. Nonetheless, during November
and December 2005, respondent visited the father while he was
incarcerated in the Buncombe County jail. The father also called
respondent on her cell phone.
Following a hearing on DSS' petition, the district court
entered an order on 5 October 2006 terminating the parental rights
of Carla's parents. With respect to respondent, the court found
that she had failed to demonstrate she benefitted from the domesticviolence counseling she had received; had maintained an ongoing
relationship with Carla's father, despite continued domestic
violence and his failure to make progress in his case plan; and
could not be trusted with Carla because, given the choice between
Carla and Carla's father, respondent had elected to pursue her
relationship with Carla's father. Based on these findings, the
court concluded that grounds existed to terminate respondent's
parental rights for neglect, pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) (2005), and for willful failure to show reasonable
progress in correcting the conditions that led to Carla's foster
care placement, pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). After
concluding termination was in Carla's best interests, the trial
court terminated the parental rights of both respondent and Carla's
father. Respondent appealed to this Court.
(See footnote 2)
On appeal, respondent challenges both of the grounds for
termination found by the trial court as unsupported by the evidence
or by the findings of fact in the order. A termination of parental
rights proceeding is conducted in two phases: (1) an adjudication
phase that is governed by N.C. Gen. Stat. § 7B-1109 (2005) and (2)
a disposition phase that is governed by N.C. Gen. Stat. § 7B-1110
(2005). In re Blackburn
, 142 N.C. App. 607, 610, 543 S.E.2d 906,
908 (2001). During the adjudication stage, petitioner has the
burden of proving by clear, cogent, and convincing evidence that
one or more of the statutory grounds for termination set forth inN.C. Gen. Stat. § 7B-1111 exist. Id.
If petitioner meets its
burden of proving that grounds for termination exist, the trial
court moves to the disposition phase and must consider whether
termination is in the best interests of the child. N.C. Gen. Stat.
On appeal, this Court determines whether the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence and whether the findings of fact support the conclusions
of law. In re Huff
, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000), appeal dismissed and disc. review denied
, 353 N.C. 374, 547
S.E.2d 9 (2001). The trial court's decision that termination of
parental rights is in the child's best interests is reviewed under
an abuse of discretion standard. In re Nesbitt
, 147 N.C. App. 349,
352, 555 S.E.2d 659, 662 (2001).
Under N.C. Gen. Stat. § 7B-1111(a)(1), the trial court may
terminate parental rights if it determines that the parent has
neglected the child. A neglected juvenile is one "who does not
receive proper care, supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; . . . or who lives in an
environment injurious to the juvenile's welfare[.]" N.C. Gen.
Stat. § 7B-101(15) (2005).
When, as here, the child had been removed from the parent's
home pursuant to a prior adjudication of neglect, "[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." In re Ballard
, 311 N.C. 708, 715, 319S.E.2d 227, 232 (1984). In such cases, although "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 her parents." In re
, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
Respondent's arguments with respect to the trial court's
findings of fact pertaining to neglect do not challenge the
findings on the basis that they are not supported by evidence.
Instead, respondent attempts to explain her behavior and to argue
that certain factual findings are irrelevant or do not support a
conclusion that Carla was neglected. Review of the record,
however, reveals that all of the challenged findings of fact are
supported by clear, cogent, and convincing evidence.
It is undisputed that Carla's father engaged in persistent and
severe acts of domestic violence against respondent dating back to
at least April 2003. Exposure to domestic violence may constitute
an environment injurious to a juvenile's welfare. See In re T.S.
__ N.C. App. __, __, 631 S.E.2d 19, 22 (2006) (exposure to, among
other things, "acts of domestic violence" sufficient to show
neglect), disc. review denied
, 360 N.C. 647, 637 S.E.2d 218 (2006),
aff'd per curiam
, __ N.C. __, 641 S.E.2d 302 (2007). As a result
of this domestic violence, there was a prior adjudication of
neglect. In addition to the trial court's finding that there is a
reasonable probability that the neglect would recur if Carla were
returned to respondent, the court made subsidiary findings that
fully support that ultimate finding, including findings that (1)
the mother cannot demonstrate that she benefitted from domestic
violence services because she continued her relationship with the
father despite recurrence of violence, (2) respondent has allowed
the father back into the home in violation of court orders, (3)
respondent "has not been able to provide the juvenile with a safe
home as she continues to associate with the respondent father," and
(4) "[t]his court can not [sic] trust the mother with this child."
The court found further that respondent "had a choice, the
respondent father or the juvenile." The order asserted that "[t]he
court will not experiment with the juvenile by continuing
[respondent's] rights to the juvenile."
The record amply supports these findings of fact. From the
time respondent was ordered to cease contact with Carla's father in
December 2003, she misrepresented and concealed their ongoing
relationship by hiding it from DSS, her therapist, and her domestic
violence counselor, as well as falsely attributing the injuries he
inflicted to other sources. Indeed, respondent denied involvement
with Carla's father specifically to regain physical custody of
Carla in April 2005, thereby exposing her young daughter to further
risk of domestic violence. Even after losing physical custody of
Carla a second time in June 2005, respondent continued to pursue a
relationship with Carla's father until at least 2006, in violationof the court's prior orders and after a petition had been filed to
terminate her parental rights. This evidence is sufficient to show
a likelihood of future neglect. See, e.g.
, 140 N.C. App. at
299, 536 S.E.2d at 845 ("[W]here a mother chooses to marry a man
who has previously abused her child, there is obviously an
increased likelihood that the child will suffer further harm if
parental rights are not terminated.").
Nevertheless, respondent points to evidence that she had not
had contact with Carla's father for a period of time prior to the
actual hearing on the DSS petition. The evidence indicated,
however, that Carla's father was imprisoned during that time. In
light of respondent's past behavior, the court was entitled to
determine that the lack of recent contact _ especially in light of
the father's incarceration _ did not reflect a substantive change
in respondent's willingness or ability to provide Carla with proper
care and a safe home environment. See In re L.B.
, __ N.C. App. __,
__, 639 S.E.2d 23, 33 (2007) (noting that "[r]espondent had placed
the importance of her relationship with [her boyfriend] above the
welfare of her child"); In re S.N.
, __ N.C. App. __, __, 636 S.E.2d
316, 321 (2006) ("The respondent father effectively chose S.N.'s
mother over S.N.").
"Having concluded that at least one ground for termination of
parental rights existed, we need not address the additional
ground[s] . . . found by the trial court." In re B.S.D.S.
N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004). Further, although
respondent assigned error to the court's conclusion thattermination of her parental rights served the best interests of the
child, she has abandoned that assignment of error by failing to
address it in her brief. N.C.R. App. P. 28(b)(6).
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).