IN RE: Wake County
No. 04 JT 487
D.L.W.,
Minor Child
Richard Croutharmel, for guardian ad litem-appellee.
Winifred H. Dillon, for respondent-appellant-Mother.
Terry F. Rose, for respondent-appellant-Father.
CALABRIA, Judge.
Cheri H. (“the mother”) and Donald W. (“the father”)
(collectively, “the parents”) appeal from an order terminating
their parental rights to their minor child, D.L.W. We affirm, but
remand to the trial court for correction of the wording of the
trial court's order terminating the respondents' parental rights.
Respondents are the biological parents of D.L.W. On 19 July
2002 the Wake County Department of Social Services (“DSS”) received
a child protective services report alleging that medical
examinations of D.L.W. revealed he had suffered a fractured rib anda thin subdural hematoma. Although D.L.W. was in the sole care and
custody of his parents at the time his injuries occurred, the
parents had no explanation for his injuries and denied any
wrongdoing. Nevertheless, they signed a Safety Assessment
Agreement.
On 24 July 2002, hospital personnel reported to DSS the data
from D.L.W.'s injuries revealed the injuries appeared to be non-
accidental, and occurred as a result of either severe head trauma
or “Shaken Baby Syndrome.” In addition, D.L.W. had vision problems
caused by bleeding on his brain, and on 6 July 2002 while still in
the hospital, D.L.W. started having seizures. As a result of his
injuries, D.L.W. was diagnosed as having Cerebral Palsy, a
fractured rib, reflux disorder, and high blood pressure. He also
was visually impaired and developmentally delayed.
DSS subsequently filed a juvenile petition, assumed custody of
D.L.W., and placed him in a foster home on 2 August 2002. At the
adjudication hearing on 20 November 2002, both parents consented to
the trial court's order finding D.L.W. was abused and neglected
based on the facts alleged in the juvenile petition. At this
hearing, the trial court ordered both parents to enroll and
participate in parenting classes, complete psychological
evaluations and follow the recommendations from those evaluations,receive training on proper care for D.L.W.'s special medical needs,
and enroll and participate in separate anger management classes.
Although D.L.W. progressed in his foster care placement, the
maternal grandparents requested, and both parents supported
,
D.L.W.'s placement with them. On 11 September 2003, although the
trial court expressed concern about the maternal grandparents'
ability to care for D.L.W., the trial court ceased reunification
efforts with the parents, ordered a permanent plan of legal custody
with D.L.W.'s maternal grandparents, and ordered supervised
visitation for the parents. Despite individual instruction,
neither the maternal grandparents nor the parents were able to
demonstrate an ability to care for D.L.W.'s special medical needs.
On 4 December 2003, the trial court
changed the permanent plan for
the minor child to adoption since reunification efforts with both
parents was considered futile or inconsistent with D.L.W.'s safety.
On 7 January 2004, both parents relinquished their parental
rights to the maternal grandparents, and DSS accepted these
relinquishments. During the six month period, neither the maternal
grandparents nor the parents showed the ability to care for D.L.W's
special medical needs. On 7 September 2004, DSS filed a petition
to terminate the mother's parental rights. On 4 October 2004, DSS
filed an amended petition to terminate both parents' parental
rights. Hearings were held on seven individual court dates over aperiod of more than four months, from 29 June 2005 to 9 November
2005. On 12 December 2005, the trial court terminated respondents'
parental rights. From the order terminating the parents' parental
rights, the father timely appealed. Although the mother did not
timely appeal, we granted her petition for a writ of certiorari;
therefore, we consider her arguments on the merits.
There are two phases in hearings to terminate parental rights:
(1) the adjudication phase, governed by N.C. Gen. Stat. § 7B-1109
(2005); and (2) the disposition phase, governed by N.C. Gen. Stat.
§ 7B-1110 (2005). In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d
144, 146 (2003).
Findings made by the trial court in the
adjudicatory phase must be supported by clear, cogent and
convincing evidence, and the findings must support a conclusion
that at least one statutory ground for termination of parental
rights exists. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d
403, 406 (2003).
The standard of review on appeal is whether the trial court's
findings of fact are supported by clear, cogent and convincing
evidence and whether the conclusions of law are supported by the
findings of fact. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d
838, 840 (2000). An appellate court is bound by the trial judge's
findings of fact “where there is some evidence to support those
findings, even though the evidence might sustain findings to thecontrary.” In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246,
252-53 (1984) (citation omitted). A trial court needs to find only
one statutory ground for termination before proceeding to the
dispositional phase of the hearing. N.C. Gen. Stat. § 7B-1111(a)
(2005); Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406. In the
dispositional phase, the trial court determines whether termination
of parental rights is in the best interests of the child. In re
Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
Here, since both parents argue numerous findings of fact were
not supported by clear, cogent and convincing evidence, we combine
these issues and address them as they relate to both parents. The
parents contest the trial court's findings of fact that they have
not demonstrated an ability to accept training on properly caring
for D.L.W.'s special medical needs, that they have not shown the
court they can be proper advocates for D.L.W., and that they have
not assisted law enforcement to determine who harmed D.L.W. Aside
from these findings of fact, they also contest the grounds the
court found were sufficient to warrant a termination of their
parental rights pursuant to N.C. Gen. Stat. . 7B-101 (2005), and
that termination of their parental rights is in the child's best
interests.
I. Training The parents contest the findings that: (1) they did not accept
training on how to care for D.L.W. and allowed the maternal
grandparents
(See footnote 1)
to receive the essential training on how to care for
D.L.W.;(2) they only showed concern for D.L.W.'s hair and clothing,
and have not shown concern for how to meet D.L.W.'s special needs;
(3) they have not demonstrated an ability for caring for D.L.W.;
(4) they are more concerned about their own needs than those of
D.L.W.; (5) they did nothing to put themselves in the position to
care for D.L.W. before or after the 5 August 2003 hearing; (6) they
relied on the maternal grandparents to provide care to D.L.W.
although the maternal grandparents were unable to provide adequate
care to D.L.W.; (7) although they knew since 5 August 2003 that the
maternal grandparents were unable to provide a permanent placement
for D.L.W., the parents did not do what was necessary to have
D.L.W. returned to their care; and (8) they have not shown they can
properly protect D.L.W. nor have they acknowledged what is needed
for D.L.W.'s future.
The trial court's findings of fact are summarized as follows. Both the parents and maternal grandparents received the same amount
of instruction on how to care for D.L.W.'s special medical needs.
However, both the parents and maternal grandparents were unable to
satisfactorily demonstrate an ability to care for D.L.W.'s special
needs.
According to the DSS report, the parents did not provide
stretching and range of motion exercises for D.L.W. during the
visits. In general, the parents were unaware of D.L.W.'s needs.
For example, in several of their visits with D.L.W., they wanted to
play with his hair despite being told repeatedly D.L.W. does not
like his head touched. During one of the visits, the parents
braided D.L.W.'s hair. That evening, D.L.W. cried in his foster
parent's lap, was awake most of the night, and was unable to relax
the next day in order for the physical therapist to work with him.
The parents did not try to stimulate D.L.W. or help him learn to do
things on his own. Additionally, the parents seldom selected the
proper position to hold D.L.W. in order to adequately support his
head.
Aside from the parents, the trial court found the maternal
grandparents also did not show a capability to care for D.L.W.'s
special medical needs. The DSS report revealed that the maternal
grandparents worked with DSS for a period of 15 months trying to
learn how to care for their grandson's medical needs. However,during this 15 month period, they were unable to remember the
correct terminology concerning D.L.W.'s various disabilities, they
were unable to comprehend a basic understanding of D.L.W.'s medical
issues, they could not remember D.L.W.'s medications or his routine
for taking them, they failed to inform medical personnel entirely
of D.L.W.'s ongoing condition, and they failed to incorporate
D.L.W.'s stretching exercises into a daily routine.
We find adequate support for these findings in the testimony
of social workers, the mother, the father, and Beth Cooper (“Ms.
Cooper”), an infant-toddler specialist. DSS arranged for Ms.
Cooper to help the parents understand D.L.W.'s special medical
needs. Ms. Cooper worked with the parents during six visits
between February 2003 and June 2003, while DSS supervised all six
visits. Ms. Cooper testified as follows:
Q: Now, isn't it true that, at least at times,
neither parents did the stretching the way
they were supposed to?
A: There was one time when Cheri actually said
that she didn't _- that she was uncomfortable
in providing that stretching because she felt
like it hurt him. And so I moved on and tried
to work on doing it through play.
Q: Were you successful through play?
A: Yeah, with the _- we did a better job of
that.
Q: And isn't it true also that the
grandparents had the same problem in doing the
stretching the way they were supposed to?
A: My recollection is that they _- you know,
that when I showed them, that they could
imitate me very well. The problem there was
that they did not initiate and they didn't
automatically do it unless they were asked to
do it.
Q: Along those same lines, isn't it true that
the grandfather rarely got on the floor with
[D.L.W.], usually asking the grandmother to do
so?
A: Correct.
Q: Isn't it true that the parents rarely
listened when they were doing things they
weren't supposed to do, like brushing hair
and/or startling [D.L.W.] or holding him in
certain ways?
A: There were times that they would ignore _-
there were times that I spoke to them and they
didn't respond to things that I said. There
were times when _- many, many times when they
didn't make eye contact with me as I was
speaking.
Moreover, the mother readily admitted she was not in a
position to care for D.L.W. at the time of the termination hearing.
In her testimony, the mother admits she would only be in a position
to care for D.L.W. if she received help from both her family and
the state. Furthermore, the father also demonstrated he was not
capable of taking care of D.L.W.'s special medical needs. On 31
August 2005, the father testified he currently did not know whatmedications D.L.W. received, he was not prepared to take D.L.W.
home as of that date, and did not remember anything he read about
Cerebral Palsy.
Both parents emphasized they went to all the required training
sessions until the court discontinued these sessions when
reunification efforts were ceased. However, the parents'
attendance at the training sessions was not enough to demonstrate
their ability to care for D.L.W.'s special medical needs. The
evidence shows the parents did not seem to pay attention in these
training sessions. During visits with D.L.W., they failed to
stimulate D.L.W. and they did not engage him in his daily
stretching exercises.
Furthermore, although the maternal grandparents revealed an
inability to care for D.L.W.'s special medical needs, the parents
nevertheless relinquished their parental rights to the maternal
grandparents on 7 January 2004. After this relinquishment, the
parents maintained visits with D.L.W. every other week. While it
was important during these visits that the parents spent time
holding D.L.W. and giving him affection, they failed to also spend
time on his mandatory stretching exercises. Moreover, instead of
encouraging D.L.W. to initiate active play with his toys to enable
him to stretch his muscles
, the parents activated the toys for
D.L.W. Their visits did not help him learn new things on his own. The fact that both parents voluntarily relinquished their
parental rights to the maternal grandparents clearly shows both
parents were willing to give up their parental responsibilities and
were willing to allow someone else to care for D.L.W.
Thus, the evidence of the parents' inability to provide the
proper medical care for D.L.W., their inability to remember
D.L.W.'s medicines, and their voluntary relinquishment of their
parental rights satisfies the clear, cogent and convincing evidence
standard. This supports the trial court's findings of fact
concerning respondents' failure to adequately learn to provide
proper exercises, training, and medical care to D.L.W. These
assignments of error are overruled.
II. Proper advocates
Both parents contend the court erred in concluding that clear,
cogent and convincing evidence supported findings of fact that the
parents failed to effectively advocate for their minor son. The
parents contest the findings that: (1) they did not show the court
they could appropriately advocate for D.L.W.; (2) after revoking
their parental relinquishment documents, they did nothing to
advocate for D.L.W. or attempt to reunify with D.L.W.; (3) they
offered no plausible explanation as to how D.L.W. was harmed; (4)
they did nothing to assist the police in helping determine who
harmed D.L.W.; and (5) they did not participate in long-term mentalhealth therapy as recommended in their 2003 psychological
evaluation.
The mother argues the trial court's findings of fact that both
parents were not proper advocates for D.L.W. improperly shifts the
burden of proof to the parents. The burden in a termination
proceeding is on the party seeking to terminate the parental
rights. N.C. Gen. Stat. . 7B-1109(f) (2005). However, the trial
court's findings did not improperly shift the burden of proof to
the parents. The trial court must affirmatively state in its
termination order “the standard of proof utilized in the
termination proceeding.” In re Church, 136 N.C. App. 654, 657, 525
S.E.2d 478, 480 (2000).
Here, the trial court affirmatively states in its termination
order that the findings of fact are supported by clear, cogent and
convincing evidence. Therefore, the trial court did not improperly
shift the burden of proof to the parents. We now determine whether
the trial court's findings of fact regarding the parents' inability
to properly advocate for their son are supported by clear, cogent
and convincing evidence.
While the mother cooperated with law enforcement by taking a
polygraph test, the father told the mother he took a polygraph test
when in fact, he did not. However, when the father told the mother
he had taken the polygraph test, the mother did not ask him for theresults. Moreover, the father and mother continued to live
together at the time of the termination hearing. The evidence
supports the trial court's determination that the mother did not do
everything possible to learn who hurt her son.
Furthermore, for the first time since D.L.W. was injured in
2003, the mother told the court that her uncle may have harmed
D.L.W. However, the mother testified she did not confront her
uncle about D.L.W.'s injuries. Dr. Karen Yoch (“Dr. Yoch”), a
licensed psychologist, testified that she performed a psychological
evaluation on the mother and detected a lack of rage existed
against the individual who harmed her son.
Both parents admit in their testimony they were the sole
custodians of D.L.W. the night he was injured. Although both
parents agreed D.L.W. was a “shaken baby,” neither parent had a
plausible explanation for how he was injured. The parents
repeatedly told social workers, the police, and the court they had
no idea what happened to their son. Additionally, both parents
testified at the termination hearing they currently were not in a
position to care for D.L.W. It was apparent that neither properly
advocated for D.L.W. by actively trying to determine who harmed
D.L.W. and learning how to take care of his special medical needs.
Although the parents learned the maternal grandparents were
unable to care for D.L.W., neither parent asked to be giveninstructions on how to care for D.L.W.'s special medical needs.
After revoking their relinquishment, the parents' involvement with
D.L.W. was minimal except for visits with D.L.W. During the
visits, they held D.L.W., but did not attempt to stimulate him or
perform any stretching exercises with him. Additionally, the
father did not visit his son in the months prior to the termination
hearing.
The mother argues she was not specifically ordered to
participate in mental health therapy; therefore, she had no notice
that she was required to engage in therapy in order to obtain
custody of her son. Dr. Yoch testified that she thought the mother
had little motivation to participate in individual therapy because
the mother did not believe she had any problems.
Moreover, the social worker testified he included his
recommendation in the parents' psychological reports that they may
benefit from therapy. Unfortunately, neither parent believed they
needed therapy. Therapists told the social worker, in their
experience, people with no insight regarding the need for therapy
not only fail to benefit from attempts at participating in therapy,
but also waste the therapists' time. Therefore, DSS did not
arrange for either parent to begin therapy.
The father failed to bring forward any argument concerning
the recommendation in his psychological evaluation for him toparticipate in long-term mental health therapy and therefore
abandons this argument. N.C.R. App. P. 28(b)(6).
Thus, we find there is clear, cogent and convincing evidence
to support the trial court's findings of fact regarding the
parents' inability to properly advocate for their son because
properly advocating for D.L.W. included assisting the police in
determining who injured their son and acknowledging they could
benefit from mental health therapy. These assignments of error are
overruled.
III. Grounds for termination
Both parents contend the court erred in concluding that clear,
cogent and convincing evidence supported its conclusions that
grounds existed to terminate respondents' parental rights and that
termination of their parental rights was in the child's best
interests. We disagree.
To terminate one's parental rights, the petitioner must show
by clear, cogent and convincing evidence that a statutory ground to
terminate the rights exists. In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997). The court's determination of the existence
of a ground is a conclusion of law. In re Helms, 127 N.C. App.
505, 510, 491 S.E.2d 672, 675-76 (1997). “Our review of a trial
court's conclusions of law is limited to whether they are supportedby the findings of fact.” Id. at 511, 491 S.E.2d at 676 (citation
omitted).
The court found three statutory grounds under N.C. Gen. Stat.
. 7B-1111(a) (2005) to terminate the respondents' parental rights:
(1) the parents abused the child; (2) the parents neglected the
child; and (3) the parents willfully left the child in a placement
outside the home for a period of more than twelve months without
showing to the satisfaction of the court that reasonable progress
was being made to correct the conditions which led to the removal
of the child.
Although only one statutory ground is required to terminate
parental rights, Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407,
we address two grounds. First, the court found that both parents
abused the child. At the time the trial court conducted the
termination hearing in this case the relevant portion of the
controlling statute allowed a trial court to terminate parental
rights if, “[t]he parent has abused or neglected the juvenile. The
juvenile shall be deemed to be abused or neglected if the court
finds the juvenile to be an abused juvenile within the meaning of
G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-
101.” N.C. Gen. Stat. . 7B-1111(a)(1) (2005).
However, “[w]here . . . a child has not been in the custody of
the parent for a significant period of time prior to thetermination hearing, the trial court must employ a different kind
of analysis to determine whether the evidence supports a finding of
neglect.” In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31
(2001). Petitioner must prove that neglect existed at the time of
the termination hearing and there was the probability of a
repetition of neglect. In re Ballard, 311 N.C. 708, 715, 319
S.E.2d 227, 232 (1984). The determinative factors are the best
interests of the child and the ability of the parent to care for
the child at the time of the hearing. Id. Termination of parental
rights for neglect may not be based solely on past conditions that
no longer exist. Id. at 714, 319 S.E.2d at 231-32. Furthermore,
“the law and reasoning of Ballard apply equally when parental
rights are terminated pursuant to a finding of abuse.” In re
Alleghany County v. Reber, 75 N.C. App. 467, 470, 331 S.E.2d 256,
258 (1985).
The trial court's findings of fact clearly support the trial
court's conclusion that both parents abused D.L.W. and that there
was a probability of the repetition of abuse in the future.
Initially, all parties consented to the finding that D.L.W. was
abused in the adjudication order entered 20 November 2002.
Furthermore, there is clear evidence that there is a
probability of the repetition of abuse. Both parents admitted and
testified that D.L.W. was in their sole custody when he was harmed. Both parents acknowledged that D.L.W. was a “shaken baby.” Yet,
neither parent provided a plausible explanation for how D.L.W. was
injured. Neither parent tried to assist law enforcement to
determine who injured their son. Although the mother passed a
polygraph test, she never asked the father for his polygraph
results. She also testified at the termination hearing that she
continued to live with the father and indicated there was no reason
for her to discontinue living with the father. Dr. Yoch testified
that both parents lacked any sort of rage towards the person who
harmed their son.
Aside from abuse, the trial court correctly concluded that
both parents 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 has
been abandoned . . . or who lives in an environment injurious to
the juvenile's welfare; or who has been placed for care or adoption
in violation of law.” N.C. Gen. Stat. . 7B-101(15) (2005). “When
the court's findings of neglect are supported by ample, competent
evidence, they are binding on appeal, even though there may be
evidence to the contrary.” In re Williamson, 91 N.C. App. 668,
674, 373 S.E.2d 317, 320 (1988) (citation omitted).
First, at the adjudication, the parents consented to the trial
court's finding that D.L.W. was neglected. The evidence isoverwhelming that neither parent grasped the seriousness of
D.L.W.'s injuries, nor understood how to care for his special
medical needs. The parents could not name D.L.W.'s medications or
properly state all of D.L.W.'s ailments. The parents repeatedly
were given lengthy instruction on how to properly care for D.L.W.
However, when respondents had the opportunity, they continually
failed to help D.L.W. with his stretching exercises and failed to
properly hold him. Both parents testified at the termination
hearing
that they were not prepared to care for D.L.W. Both
parents readily relinquished their parental rights to the maternal
grandparents to take the responsibility of caring for their child.
Furthermore, Dr. Yoch testified that the father did not understand
what was necessary to raise a child with severe disabilities.
These facts clearly support the trial court's conclusion that
neglect existed at the time of the termination hearing and that
there was a probability of a repetition of neglect.
We therefore conclude the evidence supports the trial court's
findings of fact and conclusions of law that grounds existed to
terminate respondents' parental rights. After determining that at
least two grounds exist, we need not consider the third ground
found by the trial court. See In re Davis, 116 N.C. App. 409, 413,
448 S.E.2d 303, 305 (1994). After the initial phase of finding at least one ground for
termination, the trial court proceeds to the dispositional phase
and considers whether termination is in the best interests of the
child. Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406-07
(citation omitted). The determination of whether termination of
parental rights is in the best interests of the child is in the
discretion of the trial court and will not be disturbed absent an
abuse of discretion. In re I.S., 170 N.C. App. 78, 89, 611 S.E.2d
467, 474 (2005) (citation omitted); In re Allred, 122 N.C. App.
561, 569, 471 S.E.2d 84, 88 (1996) (citation omitted).
Social workers discovered after the parents visited the minor
child, the child exhibited stressed breathing and disrupted sleep
patterns upon returning to his foster home. Additionally, after
the parents visited D.L.W., the child cried throughout the night
and became so agitated he was not able to properly participate in
physical therapy the following day.
Although the parents visited the minor child and attended six
classes on how to care for the minor child, the trial court found
the continuation of the parental relationship would not provide
stability and permanency for the minor child. Even after lengthy
instructions on how to care for D.L.W., the parents repeatedly
failed to follow these instructions and failed to properly perform
stretching exercises and stimulate his muscles. Althoughrespondents were told the child does not like objects in his face
or having his head touched, the parents repeatedly touched his head
and were constantly near the child's face. The parents continually
could not repeat the names of D.L.W.'s medications. Also,
respondents seldom held the minor child properly to prevent him
from accidentally throwing himself backwards.
At the termination hearing, both parents testified they were
not ready to care for their minor child. The father missed
scheduled visits with D.L.W. leading up to the termination hearing,
missed some of the court hearings, and refused to take a polygraph
test. Furthermore, the parents readily relinquished their parental
rights to the maternal grandparents and continued to live together
on the date of the termination hearing. Respondents failed to
fully comprehend the seriousness of their son's injuries, the
amount of care required to properly raise their son, and the
responsibility involved in caring for such a severely handicapped
child.
The parents argue termination of their parental rights is not
in the minor child's best interests because after termination the
minor child will have no future permanence. However, the parents
do not present any evidence showing the minor child is incapable of
being adopted. We find this argument without merit. Based upon the trial court's findings we find no abuse of
discretion in the trial court's conclusion that termination is in
the child's best interests. This assignment of error is overruled.
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