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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1674


Filed: 5 June 2007

                                Henderson County
C.B.L.,                            No. 03 J 135



KORNMAYER, guardian ad
for the juvenile,

    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.

    GEER, Judge.

    Respondent mother appeals from a judgment terminating her parental rights to her minor child, C.B.L. ("Carla").   (See footnote 1)  On appeal, 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. § 7B-1110(a).
    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 Reyes, 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., Huff, 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., 163 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).

Footnote: 1
    In order to maintain the child's privacy and for ease of reading, we will refer to the child by the pseudonym "Carla" throughout the opinion.
Footnote: 2
    Carla's father is not a party to this appeal.

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