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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 18 December 2007
In Re: Cleveland County
S.S.S. and S.L.S. No. 06 JA 76-77
Appeal by Respondent-Appellant from judgment entered 30 March
2007 by Judge Larry J. Wilson in Cleveland County District Court.
Heard in the Court of Appeals 14 November 2007.
Cleveland County Department of Social Services by Charles E.
Wilson, Jr., for Petitioner-Appellee.
Janet K. Ledbetter, for Respondent-Appellant.
Pamela Williams, for Appellee Guardian ad Litem.
Jacqueline S. (Respondent) appeals the trial court's order
terminating parental rights of her minor children, S.S.S. and
S.L.S. For the reasons set forth below, we affirm the decision of
the trial court.
On 27 September 2004, Cleveland County Department of Social
Services (DSS), filed a juvenile petition alleging that seven-year-
old S.S.S. and two-year-old S.L.S., the children of Respondent,
were neglected juveniles. D. Lowe (Lowe) is the father of S.S.S.,
and S. Bennett (Bennett) is the father of S.L.S.
The petition alleged that the children stayed in a home with
no power, no water, and no food, with their maternal
grandmother, Jackie M., (grandmother) who us[ed] crack. The
petition also alleged that Respondent has been involved indomestic violence with her ex-boyfriend, [Bennett.] On 14
September 2004, Respondent allegedly attempted to run over
[Bennett's new] girlfriend and mother with her car[;] and the
girlfriend and mother responded by [throwing] bricks at
[Respondent's] car[,] breaking both the front and back windows.
S.L.S. was in the car with Respondent at the time.
On 12 January 2005, Respondent stipulated to neglect, and the
court entered an order adjudicating S.S.S. and S.L.S. neglected
juveniles. The court found that [S.L.S.] had been exposed to an
incident of domestic violence between [Respondent] and [Bennett],
and that the juveniles had been frequently left in the care of . .
. [grandmother], who was unable to care for herself or the children
because of a stroke[.] The court further found that the home in
which the children were left . . . was filthy and was without power
or running water. The court stated that the juveniles live in an
environment injurious to their welfare[,] and concluded that the
juveniles are neglected . . . as defined by [N.C. Gen. Stat. § 7B-
On 20 April 2005, a review order was entered, stating that
Respondent was incarcerated in the Cleveland County Jail for ninety
days following her conviction of misdemeanor larceny.
In October 2005, Respondent began dating Darrick Blackmon
(Blackmon), and on 16 November 2005, Respondent brought Blackmon to
her therapy session at Family Net. DSS expressed concern about
Respondent's relationship with Blackmon, because Blackmon had
previously been arrested and convicted of multiple counts ofassault on a female. Domestic violence was a reason the children
initially came into foster care, and despite Blackmon's criminal
background, Respondent maintained her relationship and residence
On 20 March 2006, the court entered a permanency planning
order, finding that Respondent continues to reside with
[Blackmon,] and that Blackmon was convicted of assault on a
female[.] The court further found that Respondent does not have
beds for the juveniles[;] that Respondent was recently fired from
her job at Applebee's . . . due to excessive absences[;] and that
Respondent has not been compliant in her recommended psychological
treatment. The court found that reunification efforts with
Respondent were futile and suspended reunification efforts,
sanctioning a plan of adoption.
On 17 April 2006, DSS filed petitions for termination of
Respondent's parental rights as to S.S.S. and S.L.S., alleging that
Respondent neglected the children, N.C. Gen. Stat. § 7B-1111(a)(1),
and that Respondent willfully left the children in foster care for
more than twelve months without showing that reasonable progress
under the circumstances had been made in correcting the conditions
that led to the removal of the children,
N.C. Gen. Stat. § 7B-
1111(a)(2) (2005). The hearing on the termination petition was set
for 13 September 2006, but due to Respondent's giving birth to
another child, the hearing was continued and later held on 21 March
2007. On 30 March 2007, the trial court entered an order
terminating Respondent's parental rights as to the minor children,S.S.S. and S.L.S. In its order, the court found that the children
had been in the custody of DSS since 27 September 2004; that the
children lived in an environment injurious to their welfare because
they were (1) exposed to domestic violence, (2) left in the care of
grandmother, (3) and because the home was filthy and without
power or running water. Moreover, the court made a series of
findings regarding Blackmon and his history of domestic violence:
. . . [T]here have been at least four separate
incidents of domestic violence in the past
year in the home of the respondent mother and
[Blackmon] which required assistance or
intervention by law enforcement.
. . . [Blackmon] pled guilty to two separate
offenses of Assault on a Female within the
past year in which the respondent mother was
the victim. His most recent conviction for
Assault on a Female involved an assault upon
the respondent mother in October 2006, when
she was seven months pregnant.
. . . [Blackmon] admitted to three additional
convictions of Assault on a Female that
occurred prior to his relationship with the
. . . [T]here were two additional charges of
Assault on a Female involving [Blackmon] and
the respondent mother which were dismissed.
There were also two related charges in which
the respondent mother was charged with
assaulting [Blackmon] that were also
. . . [T]he respondent mother was advised by
social workers as early as October 2005 that
[Blackmon] had a criminal record involving
domestic violence and convictions for assault
on a female and that this history would affect
the Department's ability to recommend a return
of custody of the juveniles to their mother.
. . . [R]espondent mother either could not or
would not separate herself from [Blackmon].
. . . [T]he mother's compliance with these
various court-ordered treatment services is
outweighed by her continued determination and
willingness to remain in her relationship with
[Blackmon]. The repeated incidents of
domestic violence between the respondent
mother and [Blackmon] during the past year
clearly and convincingly evidence a lack of
progress in correcting those conditions which
led to the removal of the juveniles from the
The court concluded that it was in the best interest of the
children, S.S.S. and S.L.S., that Respondent's parental rights be
terminated. From the order terminating Respondent's parental
rights, Respondent appeals.
Ineffective Assistance of Counsel
In her first argument, Respondent contends that she received
ineffective assistance of counsel at the hearing on the petition to
terminate her parental rights. We disagree.
N.C. Gen. Stat. §§ 7B-1101 and 7B-1109(b) (2005) guarantee a
parent's right to counsel, including appointed counsel in cases of
indigence, in all proceedings related to the termination of
parental rights. See In re Oghenekevebe
, 123 N.C. App. 434, 436,
473 S.E.2d 393, 396 (1996). Implicit in this right to counsel is
the right to effective assistance of counsel. Id.
To prevail on a claim of ineffective assistance of counsel,
a defendant must first show that his counsel's performance was
deficient and then that counsel's deficient performance prejudiced
his defense. State v. Allen
, 360 N.C. 297, 316, 626 S.E.2d 271,
285, cert. denied
, __ U.S. __, 166 L. Ed. 2d 116 (2006) (cit
omitted). To establish deficient performance, a petitioner mustdemonstrate that counsel's representation 'fell below an objective
standard of reasonableness.' Wiggins v. Smith
, 539 U.S. 510, 521,
156 L. Ed. 2d 471, 484 (2003) (citing Strickland v. Washington
U.S. 668, 688, 80 L. Ed. 2d 674, 693 (1984)
Generally, 'to establish prejudice, a defendant must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
, 360 N.C. at 316, 626 S.E.2d at 285 (quoting
, 539 U.S. at 521, 156 L. Ed. 2d at 484). A reasonable
probability is a probability sufficient to undermine confidence in
the outcome. Id.
In the instant case, Respondent specifically argues that
Respondent's counsel was deficient by failing to object to DSS's
examination of Respondent and Blackmon regarding their criminal
records. Respondent states that the records were not certified
copies of public records or self-authenticating pursuant to N.C.
Gen. Stat. § 8C-1, Rule 902, and that counsel's failure to object
to questioning regarding the records prejudiced the outcome of the
proceeding. Respondent argues that the uncorroborated incidents
of domestic violence . . . [were] the sole basis to find grounds to
terminate the parental rights of [Respondent].
After a thorough review of the record, we disagree with
Respondent's assertion that the incidents of domestic violence were
uncorroborated. Without regard to the disputed line of questioning
regarding Respondent's and Blackmon's criminal records, other
undisputed evidence was admitted to corroborate the history ofdomestic violence, which in its termination order, the trial court
set out from the record. For example, months prior to the hearing,
a DSS investigation revealed Blackmon's numerous arrests and
convictions for assault on a female. Moreover, a magistrate's
order showed that on 5 August 2006, Respondent was arrested for the
offense of assault with a deadly weapon because she struck Blackmon
in the mouth with an iron. A second magistrate's order revealed
that on 10 May 2006, Respondent was arrested for assault with a
deadly weapon because she struck or drove over Blackmon with a
Chevrolet Celebrity. Other undisputed evidence supporting the
trial court's findings of fact regarding domestic violence in
Respondent's home includes the following: DSS reports spanning
from 14 December 2005 to the time of the termination proceeding
regarding Respondent's relationship with Blackmon and Blackmon's
criminal record consisting of assaulting a female[;] DSS's
documented concern regarding Blackmon's incidents of domestic
violence, especially considering that the children were initially
removed from Respondent's custody partially, if not primarily, due
to domestic violence; and Blackmon's repeated refusal to verify his
compliance with court-ordered domestic violence treatment.
We conclude that there is not a reasonable probability that,
but for counsel's failure to object to DSS's questioning, the
result of the proceeding would have been different. Due to the
other undisputed evidence corroborating Respondent's and Blackmon's
history of domestic violence, the questioning regarding an
uncertified copy of their criminal record did not prejudiciallyaffect the outcome of the termination proceeding. This assignment
of error is without merit.
Clear, Cogent and Convincing Evidence
In her next argument, Respondent contends that the trial
court's findings of fact are not supported by clear, cogent and
convincing evidence, and therefore, the findings do not support the
trial court's conclusion that Respondent willfully left the
children in foster care or placement outside the home for more than
twelve months without showing to the satisfaction of the court that
reasonable progress under the circumstances had been made in
correcting those conditions which led to the removal of the
children. G.S. § 7B-1111(a)(2). We disagree.
In the adjudicatory stage, the burden is on the petitioner to
prove by clear, cogent, and convincing evidence that one of the
grounds for termination of parental rights set forth in N.C. Gen.
Stat. § 7B-1111(a) exists. In re C.C.
, 173 N.C. App. 375,
380, 618 S.E.2d 813, 817 (2005) (cit
Our review of
the trial court's findings of fact is limited to whether there is
competent evidence to support the findings[.] In re Pope
N.C. App. 32, 40, 547 S.E.2d 153, 157 (Tyson, J., dissenting),
, 354 N.C. 359, 554 S.E.2d 153 (2001) (citing Starco, Inc. v.
AMG Bonding and Ins. Services, Inc.
, 124 N.C. App. 332, 335-36, 477
S.E.2d 211, 214-15 (1996)).
Clear, cogent and convincing
describes an evidentiary standard stricter than a preponderance of
the evidence, but less stringent than proof beyond a reasonabledoubt. N.C. State Bar v. Sheffield
, 73 N.C. App. 349, 354, 326
S.E.2d 320, 323 (1985) (citation omitted).
'If the [trial court's] decision is supported by [competent]
evidence, the district court's findings are binding on appeal, even
if there is evidence to the contrary.' In re J.W., K.W.
, 173 N.C.
App. 450, 458, 619 S.E.2d 534, 540 (2005), aff'd
, 360 N.C. 361, 625
S.E.2d 780 (2006) (quoting In re T.C.B.
, 166 N.C. App. 482, 485,
602 S.E.2d 17, 19 (2004)). Lastly, '[a] finding of any one of the
enumerated grounds for termination of parental rights under
N.C.G.S. § 7B-1111 is sufficient to support a termination.' In re
, 170 N.C. App. 244, 250, 612 S.E.2d 350, 354 , cert. denied
360 N.C. 64, 623 S.E.2d 584 (2005) (quoting In re Humphrey
N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003)).
[T]o find grounds to terminate parental rights under N.C.
Gen. Stat. § 1111(a)(2), a trial court must perform a two-part
analysis. In re J.G.B.
, 177 N.C. App. 375, 382, 628 S.E.2d 450,
455 (2006) (citing In re O.C.
, 171 N.C. App. 457, 464, 615 S.E.2d
391, 396, disc. review denied
, 360 N.C. 64, 623 S.E.2d 587 (2005)).
The trial court must determine by clear,
cogent and convincing evidence that a child
has been willfully left by the parent in
foster care or placement outside the home for
over twelve months, and, further, that as of
the time of the hearing, as demonstrated by
clear, cogent and convincing evidence, the
parent has not made reasonable progress under
the circumstances to correct the conditions
which led to the removal of the child. . . .
Evidence and findings which support a
determination of reasonable progress may
parallel or differ from that which supports
the determination of willfulness in leaving
the child in placement outside the home.
, 171 N.C. App. at 464, 615 S.E.2d at 396)
(internal quotation marks omitted). Willfulness is established
when the respondent had the ability to show reasonable progress,
but was unwilling to make the effort. In re McMillon
, 143 N.C.
App. 402, 410, 546 S.E.2d 169, 175 (2001)
. A finding of
willfulness is not precluded even if the respondent has made some
efforts to regain custody of the children. In re Nolen
, 117 N.C.
App. 693, 699, 453 S.E.2d 220, 224 (1995) (citing In re Becker
N.C. App. 85, 95, 431 S.E.2d 820, 826-27 (1993)).
In the instant case, both children have been in DSS custody
and foster care since September 2004; therefore, S.S.S. and S.L.S.
lived outside Respondent's home for more than the twelve months
required by the statute. Furthermore, the children were removed
from Respondent's care because Respondent did not provide a safe
environment for the children.
On 12 January 2005, the court ordered that Respondent
establish and maintain a safe and stable home and demonstrate
appropriate parenting skills. The court restated this directive
nine times in orders entered 6 April 2005, 19 May 2005, 27 July
2005, 27 September 2005, 4 January 2006, 20 March 2006, 24 April
2006, 10 July 2006 and 11 December 2006. DSS repeatedly expressed
concern about whether Respondent had established a safe home for
her children, because Respondent continued to reside with Blackmon,
despite Blackmon's history of domestic violence.
Respondent's attorney, Antoinette Adams, advised Respondent
that as long as she lived with Blackmon, the court would beunlikely to sanction placement of the children with her. At the
termination hearing, Respondent testified that she intended to
remain with Blackmon because he was the father of her third child.
This evidence supports the trial court's findings of fact and
conclusions of law regarding the ground for termination, G.S. § 7B-
We conclude that the trial court's findings of fact are
supported by clear, cogent and convincing evidence, and the
findings also support the trial court's conclusion that grounds
exist for termination of respondent's parental rights pursuant to
G.S. § 7B-1111(a)(2). Because '[a] finding of any one of the
enumerated grounds for termination of parental rights under
N.C.G.S. § 7B-1111 is sufficient to support a termination[,]' In
, 170 N.C. App. at 250, 612 S.E.2d at 354 (quoting In re
, 156 N.C. App. at 540, 577 S.E.2d at 426), we do not reach
the question of whether the trial court's findings regarding
neglect were also supported by clear, cogent and convincing
evidence. The order terminating respondent's parental rights is
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).
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