IN THE MATTER OF:
M.T.B., Wake County
C.G.B, Nos. 06 JA 255,256
minor children.
Wake County Attorney's Office, by Corinne G. Russell and Al
Singer, for Petitioner-Appellee Wake County Human Services.
Pamela Newell Williams for Guardian ad Litem.
Duncan B. McCormick for Respondent-Appellant.
McGEE, Judge.
C.B. (Respondent-Mother) appeals from an order terminating her
parental rights with respect to her minor children, M.T.B. and
C.G.B. (the children). On appeal, Respondent-Mother makes three
arguments: (1) the trial court erred by taking judicial notice of
previous court orders and reciting findings from those prior court
orders; (2) the trial court erred by concluding Respondent-Mother
neglected the children; and (3) the trial court erred by concluding
Respondent-Mother abused the children. We affirm.
Respondent-Mother and the children's father each had sought
custody of the children in a prior civil action and the father wasgranted custody in 2003. The children's father was shot on 24
March 2006 in the children's presence. He died the following day
from gunshot wounds. The record reflects Respondent-Mother was
charged with his murder and was incarcerated in the Wake County
jail. Wake County Human Services (Petitioner) filed juvenile
petitions on 31 March 2006 alleging that the children were abused,
neglected, and dependent. The children were placed with a paternal
aunt and uncle. The trial court entered a "Consent Order On
Adjudication and Disposition" signed by Respondent-Mother on 24 May
2006. In the consent order, the trial court adjudicated the minor
children to be neglected, dependent, and abused. The trial court
also ordered no visitation between Respondent-Mother and the
children. Respondent-Mother thereafter filed a Rule 60(b) motion
to set aside the consent order, arguing that she did not agree to
the provision prohibiting her from visiting the children. The
trial court denied Respondent-Mother's motion and she did not
appeal that decision.
Petitioner filed a motion to terminate Respondent-Mother's
parental rights on 16 October 2006 alleging four grounds for
termination: (1) Respondent-Mother neglected the children and this
neglect would likely be repeated in the future if the children were
placed in her care; (2) Respondent-Mother was incapable of
providing proper care and supervision of the children; (3)
Respondent-Mother had abused the children and would likely continue
to abuse them; and (4) Respondent-Mother committed murder or
voluntary manslaughter of the children's father. At the close ofthe hearing, Petitioner withdrew the fourth ground for termination.
The trial court entered an order on 17 January 2007 concluding
that Respondent-Mother "abused the children and it [was] probable
that there would be a repetition of the abuse if the children were
placed in [Respondent-Mother's] care." In addition, the trial
court concluded that Respondent-Mother "neglected the children and
it [was] probable that there would be a repetition of the neglect
if the children were placed in [Respondent-Mother's] care." The
trial court determined that termination of Respondent-Mother's
parental rights would be in the best interests of the children, and
ordered the termination of Respondent-Mother's parental rights.
Respondent-Mother appeals.
Respondent-Mother first argues the trial court erred by taking
judicial notice of prior court orders and by reciting findings of
fact from prior court orders in its termination order. Such
recitation, she contends, does not demonstrate the trial court's
independent determination of the facts established by the evidence.
We disagree.
We note that "a court may take judicial notice of earlier
proceedings in the same cause." In re Byrd, 72 N.C. App. 277, 279,
324 S.E.2d 273, 276 (1985). In particular, prior orders
adjudicating a juvenile neglected or abused are admissible in
termination of parental rights cases. In re Ballard, 311 N.C. 708,
713-15, 319 S.E.2d 227, 231-32 (1984). When the trial court is
sitting as factfinder, there is a presumption that the trial court
has disregarded any incompetent evidence "'unless it affirmativelyappears that [the trial court] was influenced thereby.'" In re
L.C., ___ N.C. App. ___, ___, 638 S.E.2d 638, 642 (quoting Stanback
v. Stanback, 31 N.C. App. 174, 180, 229 S.E.2d 693, 696 (1976),
disc. review denied, 291 N.C. 712, 232 S.E.2d 205 (1977)), disc.
review denied, 361 N.C. 354, ___ S.E.2d ___ (2007). Aside from
Respondent-Mother's 60(b) motion challenging the consent order,
there is no showing in the record that she objected to any evidence
or findings in the custody case or in the juvenile case. The trial
court's order of termination of parental rights stated that the
findings of fact were based upon clear, cogent and convincing
evidence. Moreover, nothing in the record indicates that the trial
court failed to conduct the independent determination required when
it took judicial notice of the prior orders entered in the matter.
See In re J.W., 173 N.C. App. 450, 456, 619 S.E.2d 534, 540 (2005),
aff'd per curiam, 360 N.C. 361, 625 S.E.2d 780 (2006); In re J.B.,
172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005). Therefore,
Respondent-Mother failed to show the trial court erred by taking
judicial notice of the prior court orders, and by relying upon them
in its order terminating Respondent-Mother's parental rights.
By her remaining two arguments, Respondent-Mother contends the
findings of fact are insufficient to support the trial court's
conclusions of law that she neglected and abused her children, and
that such neglect and abuse was likely to continue in the future if
the children were returned to her care. "'The standard of review
in termination of parental rights cases is whether the findings of
fact are supported by clear, cogent and convincing evidence andwhether these findings, in turn, support the conclusions of law.'"
In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004)
(quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758
(1984)). A prior order adjudicating neglect is admissible evidence
to show past neglect. Ballard, 311 N.C. at 713-15, 319 S.E.2d at
231-32. However, termination of parental rights may be not be
determined solely on a finding of past neglect. Id. at 714-15, 319
S.E.2d at 231-32. A trial court must find either that neglect
existed at the time of the termination hearing or that there was a
reasonable likelihood of repetition of neglect if the children were
returned to the parents. Id. at 715-16, 319 S.E.2d at 232-33; see
also In re Reyes, 136 N.C. App. 812, 526 S.E.2d 499 (2000). This
is especially true when a respondent has not had custody of the
child for quite some time. Ballard, 311 N.C. at 713-15, 319 S.E.2d
at 231-32. Similar principles apply to a finding of abuse. In re
Alleghany County v. Reber, 75 N.C. App. 467, 469-70, 331 S.E.2d
256, 257-58 (1985), aff'd per curiam, 315 N.C. 382, 337 S.E.2d 851
(1986).
In this case, the trial court ordered termination on the
grounds of neglect and abuse, and on the likelihood that such abuse
and neglect would continue in the future if the children were
returned to Respondent-Mother. A trial court may terminate
parental rights based on abuse or neglect "if the [trial] 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). A "neglectedjuvenile" is
[a] juvenile 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 is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile's
welfare; or who has been placed for care or
adoption in violation of [the] law.
N.C. Gen. Stat. § 7B-101(15) (2005). An "abused juvenile" is one
whose 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).
Evidence throughout the record supports a finding of past
neglect and abuse. A domestic violence protective order was
entered on 20 June 2002 protecting the children's father from
Respondent-Mother after she threatened to kill him. In a
subsequent hearing, Respondent-Mother was found to have wilfully
violated custody provisions entered in two domestic violence
actions. The children were placed in the temporary custody of
Petitioner while psychological examinations were completed for the
children and the parents. Respondent-Mother had made numerous
claims that the children were abused by their father, which claims
were never substantiated. The trial court found Respondent-Mother
coached C.G.B. regarding sexual abuse allegations against the
father to such an extent that C.G.B. could not distinguish between
actual events and fictional events. Respondent-Mother wasdiagnosed with having "paranoid thinking and delusions," and her
mental instability caused such trauma to the children as to
constitute child abuse. Therapy was ordered for C.G.B. and mental
health treatment for Respondent-Mother.
Following a hearing in 2003, the trial court found that
Respondent-Mother continued to exhibit acute psychiatric distress
in the period from late 2002 to the middle of 2003. During visits
with Respondent-Mother, the children were aggressive toward her and
generally regressed in their behavior. In August 2003, a treatment
team recommended suspending Respondent-Mother's visitation with the
children until another psychological evaluation could be completed.
At that time, Respondent-Mother continued to hold to the belief
that the children's father was sexually abusing the children, and
she was unable to refrain from imposing that belief on the
children. The trial court adopted the recommendation suspending
visitation of Respondent-Mother and further ordered Respondent-
Mother to stay at least 500 feet away from the children and their
father and to refrain from attempting to call or otherwise
communicate with them.
In subsequent orders, the children were found to be making
progress in their respective therapy sessions. At later hearings,
Respondent-Mother failed to provide any evidence of completing a
full psychological examination or other mental health treatment.
She also violated the court order by contacting the children,
showing up at their school on numerous occasions, and attempting to
break into the children's home. Respondent-Mother also moved intoan apartment close to the children, violating the 500 foot buffer
ordered by the trial court. She admitted that she "crouched" by a
bedroom window while the father put the children to bed. On 10
June 2005, Respondent-Mother broke a window at the father's house
and attempted to crawl inside the house. The father called police,
and Respondent-Mother was arrested. The children were upset by the
incident and suffered emotional distress and anxiety.
In its final custody order dated 20 October 2005, the trial
court granted custody to the children's father. The trial court
also determined that Respondent-Mother had acted in a manner
inconsistent with her constitutionally protected status as a
parent. Respondent-Mother was ordered not to have any contact with
the children, to remain at least 2000 feet away from the children,
and to undergo a full psychological evaluation if she wanted
reconsideration of these restrictions.
Following the shooting death of the children's father, the
trial court found the children were "present at the shooting of
[their] father, [and] [had] suffered severe emotional damage as a
result." The trial court concluded the children were neglected "in
that they do not receive proper care and supervision by their
mother," and abused "in that their mother created serious emotional
damage to them and has subjected the children to aggravated
circumstances as defined in § 7B-101(2)."
In the disposition hearing order dated 6 July 2006, the trial
court found that the children were in therapy to deal with the loss
of their father and that their therapists recommended the childrennot have any contact with Respondent-Mother. The trial court found
that Respondent-Mother had been attempting to contact the children
by calling the home in which they were staying, and that such
attempts created a risk of further emotional harm to the children.
The trial court noted Respondent-Mother's violations of previous
orders that she not have any contact with the children or their
father. In addition, the trial court found that due to Respondent-
Mother's mental health history and current incarceration, it was
unlikely she would be able to establish a safe home for the
children. The trial court therefore determined it was in the best
interests of the children to cease reunification efforts and noted
the permanent plan for the children was adoption. Respondent-
Mother was ordered not to make telephone calls to the children and
not to have any visitation with the children.
In the termination order dated 17 January 2007, the trial
court made numerous findings of fact to support its conclusion that
there existed a substantial probability that neglect and abuse
would continue in the future. We find ample support in the record
for those findings of fact. At the adjudicatory phase of the
termination proceedings, Linda Clements testified that in her
opinion as a social worker and "based on our knowledge that
[Respondent-Mother] has not received any mental health treatment,
we do not believe that conditions have improved where she would be
able to provide a safe environment for the children." In response
to a question regarding whether the pattern of neglect would
continue if the children were placed in Respondent-Mother's care,Ms. Clements replied, "I don't have any knowledge that anything has
changed." Regarding the current status of Respondent-Mother's
mental health, the trial court found:
35. That in the hearing on the motion to terminate her
parental rights, [Respondent-Mother] has provided no
evidence that she has either completed a psychological
evaluation or engaged in mental health treatment.
36. That this Court has previously found and decreed
that [Respondent-Mother] has abused and neglected her
minor children. [Respondent-Mother] has offered no
evidence that she has had proper mental health treatment,
was taking medication, whether she was seeing a
therapist, or that her mental condition has improved.
[Respondent-Mother] repeatedly violated previous court
orders and in so doing continued to cause emotional harm
to her children. It is reasonably likely that the
pattern of abuse and neglect established by [Respondent-
Mother] dating back to 2001 would be repeated if the
children were placed in her care.
After a careful review of the record, prior court orders, and
the trial court's findings and conclusions in its order terminating
Respondent-Mother's parental rights, we find the trial court's
findings of fact are supported by clear, cogent, and convincing
evidence and the findings of fact support the conclusions of law.
The lack of progress made by Respondent-Mother with regard to her
mental health supports the likelihood that neglect and abuse of the
children will continue should the children be returned to
Respondent-Mother's care. In addition, the repeated violations of
court orders over the years resulting in disturbances in the
children's lives evidences a pattern which seems likely to
continue. The fact that the children were traumatized by their
father's shooting death also projects a likelihood that the
children would suffer further serious emotional damage should theybe returned to Respondent-Mother.
We conclude the trial court did not err in concluding
Respondent-Mother abused and neglected the children and that such
abuse and neglect would likely be repeated if the children were
returned to her care. Accordingly, we affirm the order terminating
Respondent-Mother's parental rights.
Affirmed.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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