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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 August 2007
H.S. Forsyth County
No. 03 JT 167
Appeal by respondent mother from order entered 27 November
2006 by Judge Laurie Hutchins in Forsyth County District Court.
Heard in the Court of Appeals 30 July 2007.
Assistant County Attorney Theresa A. Boucher, for petitioner-
appellee Forsyth County Department of Social Services.
Womble Carlyle Sandridge and Rice, PLLC, by Aulica Lin
Rutland, for guardian ad litem.
Susan J. Hall, for respondent-appellant.
D.S. (respondent) appeals from order entered terminating her
parental rights to her minor child, H.S. We affirm.
Respondent is the mother of H.S., the eldest of three children
born to her. H.S. first came into the custody and care of the
Forsyth County Department of Social Services (Forsyth DSS) in May
2003 at eighteen months old, after her younger infant brother,
J.S., was transported to North Carolina Baptist Hospital in serious
condition. J.S. was seventeen days old and diagnosed with shaken
baby syndrome. J.S. and H.S. were removed from respondent's home
and placed in a foster home. H.S. was returned to her parents'
home in May 2004 after a trial court concluded that she was notabused or neglected. Her brother, J.S., was found to be an abused
juvenile and respondent relinquished her parental rights to him and
he was subsequently adopted by his foster parents in March 2005.
On 9 May 2005, respondent gave birth to a third child, D.S.,
another boy. At the age of eleven weeks, D.S. was transported to
North Carolina Baptist Hospital, but was pronounced dead upon
arrival. D.S.'s death was caused by multiple acute blunt force
injuries to the chest, including multiple rib fractures, bruises to
the face, subdural and subarachnoid bleeding on the brain, bleeding
on the spinal cord, and retinal hemorrhages. The injuries were
determined not to have resulted from an accident.
On 31 July 2005, H.S. was removed from respondent's home and
placed in the same home as her younger brother, J.S. A juvenile
petition alleging H.S. to be abused and neglected was filed in
Stokes County District Court on 1 August 2005. The petition was
subsequently transferred to the Forsyth County District Court on 29
On 26 April 2006, Forsyth DSS filed a petition to terminate
the parental rights of respondent and respondent's husband, the
child's legal father, and of the parental rights of the child's
biological father. On 7 July 2006, the trial court conducted an
adjudicatory hearing on the juvenile petitions filed the Stokes
County and Forsyth County DSS. At this hearing, the parties
stipulated that H.S. was a neglected juvenile and the trial court
adjudicated her as such. The trial court set a disposition and
permanency planning hearing on 10 July 2006. At the conclusion ofthe three day hearing, the trial court entered an order on 23
August 2006 concluding that reunification was not appropriate and
directing that a hearing on the pending petition to terminate
respondent's parental rights be scheduled. The trial court noted
in the order that respondent had sought to appeal from its
permanency planning decision.
On 4 October 2006, the trial court heard the petition to
terminate respondent's parental rights. After several days of
hearings, the trial court terminated respondent's parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) on the ground of abuse
and neglect. The trial court noted in its order that respondent's
husband and the child's biological father both signed documents
relinquishing their parental rights. Respondent appeals.
Respondent argues the trial court erred by: (1) concluding in
the permanency planning order that Forsyth DSS expended reasonable
efforts to reunite the family and that reunification was not
appropriate; (2) failing to conduct a permanency planning hearing
within thirty days of the disposition hearing; and, (3) concluding
she had neglected H.S.
Respondent first contends the trial court erred by concluding
that reasonable efforts were expended by Forsyth DSS to reunite the
family and that reunification was not appropriate. We disagree.
An order continuing custody of a juvenile with Forsyth DSS,
whether a disposition or review order, must contain findings ofwhether a county department of social services has made reasonable
efforts to prevent or eliminate the need for placement of the
juvenile, unless the court has previously determined . . . that
such efforts are not required or shall cease[.] N.C. Gen. Stat.
§ 7B-507(a)(2) (2005). The trial court may direct that reasonable
efforts to eliminate the need for placement of the juvenile . . .
shall cease if the court makes written findings of fact that . . .
Such efforts clearly would be futile or would be inconsistent with
the juvenile's health, safety, and need for a safe, permanent home
within a reasonable period of time. N.C. Gen. Stat. § 7B-
507(b)(1) (2005). Reasonable efforts are defined as:
The diligent use of preventive or
reunification services by a department of
social services when a juvenile's remaining at
home or returning home is consistent with
achieving a safe, permanent home for the
juvenile within a reasonable period of time.
If a court of competent jurisdiction
determines that the juvenile is not to be
returned home, then reasonable efforts means
the diligent and timely use of permanency
planning services by a department of social
services to develop and implement a permanent
plan for the juvenile.
N.C. Gen. Stat. § 7B-101(18) (2005). Here, the trial court
concluded that Forsyth DSS had expended reasonable efforts to
attempt to reunite this family and such reunification is not
appropriate at this time.
In the permanency planning order, the trial court found that
Forsyth DSS's permanency planning team met and reviewed H.S.'s
progress and the services provided to H.S. and her family. The
team determined that there are no services available which havenot been successfully completed by this family which would assist
this family and provide for the successful reunification of H.S. in
a reasonable period of time and be in the best interest of the
child. The trial court also listed ten services offered by
Forsyth DSS to prevent or eliminate the need for placement of H.S.
in foster care. These services included a permanency planning
action team which identified and discussed issues and concerns and
which invited parental participation, supervised visitations
between H.S. and her parents, and counseling and medical referrals.
Respondent does not assign error to these findings. In the absence
of an assignment of error, the findings are presumed to be
supported by competent evidence and are binding on appeal. Koufman
, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Although respondent lists in her brief a number of assignments
of error challenging the sufficiency of the evidence to support
certain findings of fact under the first question presented,
respondent does not argue them in her brief. Instead, she solely
challenges the conclusion of law that Forsyth DSS expended
reasonable efforts to attempt to reunite the family. Her challenge
to these findings of fact is deemed abandoned. See In re B.D.,
N.C. App. 234, 239, 620 S.E.2d 913, 916 (2005), disc. rev. denied
360 N.C. 289, 628 S.E.2d 245 (2006).
In these findings, the trial court found, inter alia
there are no additional services available for either parent that
would be successful and provide the necessary protection for H.S.
The trial court also found that further reunification efforts byForsyth DSS would clearly be futile and inconsistent with the
juvenile's health, safety, and need for a safe permanent home
within a reasonable period of time.
The trial court further found H.S.'s best interest would not
be served by returning her to respondent's home based upon the
physical violence H.S. had witnessed. H.S. suffers from post-
traumatic stress syndrome from having witnessed acts of violence
perpetrated upon her infant brothers and direct acts of violence
inflicted upon her. When H.S. began therapy in September 2005, she
experienced flashbacks, reliving past events. These flashbacks
are triggered by psychological stressors. The trial court found
H.S.'s medical and emotional condition is unusual for a child of
her age and respondent does not have the capacity to provide H.S.
with the care and support she needs at this time. These findings
support the trial court's conclusion of law that Forsyth DSS
expended reasonable efforts to reunite the family and that
reunification is inappropriate. This assignment of error is
IV. Permanency Planning Hearing
Respondent next contends that the trial court erred by failing
to conduct a permanency planning hearing within thirty days of the
disposition hearing as required by N.C. Gen. Stat. § 7B-507(c). We
N.C. Gen. Stat. § 7B-507(c) (2005) provides:
At any hearing at which the court finds that
reasonable efforts to eliminate the need for
the juvenile's placement are not required or
shall cease, the court shall direct that apermanency planning hearing as required by
G.S. 7B-907 be held within 30 calendar days
after the date of the hearing and, if
practicable, shall set the date and time for
the permanency planning hearing.
The adjudication order filed 7 July 2006 decreed, [t]he
disposition hearing and a permanency planning hearing . . . shall
be held on July 10, 2006, at 9:30 a.m. All parties stipulate to
the hearing being consolidated and will waive any irregularities in
this matter. Respondent does not contend that she did not make
this stipulation, and will not be heard to complain that a separate
permanency planning hearing was not held. A party is estopped from
contesting the terms of an order in which the party joined or
acquiesced. Chance v. Henderson, 134 N.C. App. 657, 666, 518
S.E.2d 780, 786 (1999). This assignment of error is overruled.
Respondent's final contention is that the trial court erred by
concluding she neglected H.S. The trial court terminated
respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1), which provides that parental rights may be terminated
upon a finding the parent has abused or neglected the juvenile. A
juvenile is abused if the parent [c]reates or allows to be created
serious emotional damage to the juvenile; serious emotional damage
is evidenced by a juvenile's severe anxiety, depression,
withdrawal, or aggressive behavior toward himself or others. N.C.
Gen. Stat. § 7B-101(1)(e) (2005). A neglected juvenile is defined
as one who does not receive proper care, supervision, or
discipline from the juvenile's parent, guardian, custodian, orcaretaker. N.C. Gen. Stat. § 7B-101(15) (2005). In determining
whether a juvenile is a neglected juvenile, it is relevant whether
that juvenile lives in a home where another juvenile has died as a
result of suspected abuse or neglect or lives in a home where
another juvenile has been subjected to abuse or neglect by an adult
who regularly lives in the home. Id. Termination of parental
rights on the ground of neglect cannot be based solely on past
neglect and must be based on evidence showing neglect continuing at
the time of the termination proceeding. In re Ballard, 311 N.C.
708, 716, 319 S.E.2d 227, 232 (1984). Respondent argues the
evidence fails to establish the existence of neglect at the time of
the hearing. We disagree.
This Court has stated that when a child has not been in the
custody of the parent for a significant period of time prior to the
termination hearing, requiring the petitioner in such
circumstances to show that the child is currently neglected by the
parent would make termination of parental rights impossible. The
requisite finding of neglect at the time of the hearing may be
based upon a showing of a history of neglect by the parent and the
probability of a repetition of neglect. In re Shermer, 156 N.C.
App. 281, 286, 576 S.E.2d 403, 407 (2003) (internal citations
The trial court's findings show that H.S. was returned to
respondent's home by order dated 7 May 2004. Respondent and her
husband were ordered to complete various services in order to be
reunited with their son, J.S., who had sustained serious non-accidental injuries while in the sole care of respondent and her
husband. Although respondent completed the services, which
included parental classes and therapy, H.S. regressed in her
development while under respondent's care and supervision. H.S.
was described as out of control and running wild, her hair was not
combed, her clothes were dirty, her language was profane, and she
was unable to control her bladder and bowel even though she had
been potty trained while in foster care. When the foster family
who adopted J.S. visited respondent six weeks after she gave birth
to D.S., they observed that D.S. had a wet, leaking diaper and a
bad case of diaper rash. The foster mother babysat D.S. and H.S.
on 22 July 2005 and observed that D.S. had a bruise on his ear,
which was not present two days earlier. No bottle, formula, or
pacifier was provided for the babysitter to give to D.S. The
autopsy of D.S. showed that the infant sustained multiple injuries
at separate times, including a contusion to his right ear. D.S.
had eight rib fractures which occurred between 20 to 30 July 2005,
and twenty one rib fractures which occurred prior to 20 July 2005.
When H.S. returned to the foster home in August 2005, the
foster mother observed H.S. kick her younger brother, J.S., and
shook him violently. She also observed that H.S. did not observe
a regular schedule for eating or bedtime. H.S. is fearful and
distrustful of caregivers, especially respondent. H.S. is very
guarded when she talks about respondent, but talks more freely
about her father. The foregoing findings demonstrate that
respondent has a history of not providing proper care, discipline,or supervision of H.S. or any of her children and that it is
probable that her neglect of H.S. will continue. This assignment
of error is overruled.
The trial court did not err in finding and concluding that
reunification of H.S. with respondent was inappropriate or that
H.S. is a neglected juvenile. The trial court did not err by
consolidating the permanency planning and dispositional hearings,
when respondent does not argue that this consolidation was
consented to by all parties. The order terminating respondent's
parental rights to H.S. is affirmed.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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