IN RE: A.W.T., L.O.L. Catawba County
Nos. 05 JT 048-49
Susan J. Hall, for respondent-appellant.
J. David Abernathy, for petitioner-appellee.
Melanie Stewart Cranford, for appellee Guardian ad Litem.
Elmore, Judge.
Della W. (respondent) appeals from a judgment and order of the
district court terminating her parental rights to the minor
children A.W.T. and L.O.L., who were born in 2000 and 2002. We
note that the children's biological father, Billy T., is deceased
and not a party to the instant proceeding.
The Catawba County Department of Social Services (DSS)
obtained non-secure custody of A.W.T. and L.O.L. on 22 February
2006, and filed a petition alleging that they were neglected and
dependent juveniles as defined by N.C. Gen. Stat. § 7B-101(9) and
(15) (2005). The district court entered adjudications of
dependency and neglect on 18 May 2006, finding that the minor
children had been exposed to a series of violent assaults betweenrespondent and her mother, Connie W., in their home in February of
2006. During these incidents, respondent hit Connie W. in the
mouth, struck her “with the handle of a knife so hard that the blow
took Connie [W.] to her knees and knocked the breath out of her[,]”
broke a window in Connie W.'s home, smashed two glass goblets
against the wall while the children were barefoot in the room,
pulled a phone cord from the wall, “chased Connie W[.] with a
butter knife and a steak knife[, and] . . . screamed, cursed, and
argued” with Connie W. The court noted that respondent had “an
extensive criminal history which includes [s]imple [a]ssault and
several convictions for possession of drug paraphernalia and
possession of marijuana[,]” and had refused drug screens requested
by DSS. The court further found that A.W.T. had fourteen unexcused
absences from school and several tardies between 30 August 2005 and
2 February 2006. In November of 2005, a Child Protective Services
investigator found respondent living with the children in a home
without electricity, relying on an extension cord connected to a
neighbor's outlet for power. The court placed the minor children
in DSS custody. It ordered respondent to complete a “Family
Services Case Plan which includes stable housing and employment,
random drugs screens, and [a] complete psychological evaluation[].”
Respondent signed a case plan on 24 March 2006, but did not
attend a review hearing held on 6 June 2006. She told DSS that she
was working through a temporary agency but had yet to obtain stable
housing. In its review order entered 3 July 2006, the district
court found that respondent “has not begun to work on the items inher case plan.” The court further noted that respondent's “social
worker does not have information on how to contact the mother to
send for random drug screens.” Accordingly, the court suspended
respondent's visitation with the minor children until she notified
DSS of her whereabouts and submitted to random drug screens. It
reiterated its prior order that respondent comply with the terms of
her case plan.
The court held a permanency planning hearing on 29 August
2006. Respondent attended the hearing but was incarcerated, having
chosen to activate a suspended sentence rather than submit to the
conditions of probation. The court construed respondent's decision
as evincing an unwillingness “to cooperate with this Court's orders
or her case plan.” The court found that respondent had done
nothing toward the completion of her case plan and had never
provided DSS with contact information. In an order entered 12
September 2006, the court determined that further efforts to
reunify respondent with the minor children would be futile and
changed the permanent placement plan for the children to adoption.
DSS filed a motion to terminate respondent's parental rights
on 18 October 2006, on grounds that she had neglected the minor
children and for a period of six months prior to the filing of the
motion had willfully failed to pay a reasonable portion of their
cost of care. N.C. Gen. Stat. § 7B-1111(a)(1), (2) (2005). In
support of its claim of neglect under N.C. Gen. Stat. § 7B-
1111(a)(1), DSS noted the minor children's prior adjudication of
neglect and dependency on 9 May 2006, and alleged that respondenthad failed to (1) “address or remedy the issues which led to the
initial adjudication[,]” (2) “maintain regular visitation and
contact with the minor children[,]” (3) “maintain consistent
contact with the social worker in order to address the issues which
led to the adjudication . . . or to work toward reunification[,]”
and (4) “submit to drug screens” on five occasions from 24 March to
24 May 2006.
Following a review on 12 November 2006, the district court
entered an order finding that respondent had been released from her
incarceration and had contacted DSS to schedule an appointment for
28 November 2006. Inasmuch as respondent had “not made any
progress on her case plan[,]” the court found it unlikely that the
minor children could be returned to her care within six months.
The review order noted the death of the children's father, Billy
T., on 22 September 2006.
At the 19 March 2007 termination hearing, DSS Social Worker
Tina McRary testified that respondent signed a case plan on 24
March 2006, but did nothing toward its fulfillment before she
elected to activate her suspended sentence in July, 2006.
Respondent had attended half of her scheduled visitations until 24
May 2006, and brought food, clothing, and “stuff from home” for the
children. She also gave the children stuffed animals and candy at
Easter. However, respondent failed to attend her psychological
evaluation and had refused drug screens at her visitations in
February, March, and May of 2006. Because respondent would not
provide DSS with contact information, McRary was unable to arrangefor drug screens for respondent other than at her visitations.
Respondent never reinstated her visitation rights by submitting to
random drug screens after the 6 June 2006 review hearing. Social
worker Cheryl Brock handled respondent's case while McRary was on
maternity leave from 23 October 2006 until 2 January 2007. McRary
notified respondent's parents of her maternity leave and provided
the necessary information to her clients on her voice mail message.
Respondent's father scheduled an appointment for her with Brock on
28 November 2006, for the purpose of discussing her case plan.
Respondent did not attend the appointment or contact DSS to
reschedule it. Since her release from incarceration, respondent
had not provided McRary with her contact information or spoken to
McRary. When McRary called respondent's father in an attempt to
reach her, he said that “she was not there.” McRary asked
respondent's father “to have her contact” DSS, but respondent did
not do so. In December of 2006, respondent registered for child
support and made an initial payment of $105.00. At the time of the
hearing, she had made no subsequent support payments and was
$210.00 in arrears. Connie W. also delivered Christmas gifts for
the children from respondent in December of 2006. At the time of
the termination hearing, respondent had yet to obtain a
psychological evaluation, attend a single random drug screen, or
provide any information to DSS regarding stable employment or
housing.
Respondent testified that she was unable to comply with her
case plan prior to her incarceration in July of 2006, because shewas dependent upon her father for transportation. She attended
visitations with her children when she was able. Prior to July of
2006, respondent lived with friends or her father. She provided
both addresses and phone numbers to McRary and left monthly phone
messages for her; but McRary “never returned [her] calls to where
[she] was staying.” Although she failed to submit to random drug
screens arranged by McRary, respondent had been subject to monthly
drug tests at her scheduled appointments with her probation
officer. She had asked her probation officer to forward her test
results to McRary. Until July of 2006, respondent worked through
a temporary agency, Catawba Valley Staffing. On the advice of her
probation officer, she chose to activate and serve her suspended
sentence, because her “bond was so high.” She had been unaware of
McRary's maternity leave and received no information from DSS
during her incarceration other than notice of her permanency
planning hearing. Since January of 2007, respondent had been
working at a laundromat and earned $100.00 per week. Her neighbor
drove her to work. Respondent was living in an apartment in
Connelly Springs with a monthly rent of $350.00, and had paid
$300.00 in child support. She had received “two thousand and
something” dollars from a $4,000.00 insurance settlement in
November of 2006, but had exhausted these funds on “[r]ent and
power” and the security deposit for her apartment. Respondent
lacked phone service but “had [her] father call [DSS] a couple of
times” on her behalf. Despite living within a block of her
father's residence, which she described as “walking distance[,]”respondent had never used his phone to call McRary or to check his
answering machine to determine if McRary had returned his calls.
Respondent remained dependent upon her father and grandfather for
transportation, both of whom were unreliable due to “health
problems.” She had never asked DSS for transportation assistance.
After hearing the parties' evidence, the district court found
grounds to terminate respondent's parental rights for neglect under
N.C. Gen. Stat. § 7B-1111(a)(1). The court entered findings
depicting the events that led to the prior adjudication of neglect
and dependency on 18 May 2006, as well as respondent's subsequent
failure to cooperate with DSS or to work toward the fulfillment of
her case plan. The court noted respondent's failure to contact her
social worker and expressly found that “[h]er explanation that she
left messages once per month for the worker is not . . . credible.”
The court determined that respondent's conduct “constitute[d]
neglect” of her children and demonstrated “a strong probability
that neglect would continue if the children were returned to the
home of [respondent] at this time or any time in the foreseeable
future.”
Following its adjudication under N.C. Gen. Stat. § 7B-1111(a),
the district court heard additional testimony and received into
evidence the written reports of DSS and the Guardian ad Litem. The
court entered a separate dispositional order terminating
respondent's parental rights. The court made findings of fact
regarding the minor children's developmental delays, their progress
in foster care, and their satisfactory transition into an adoptivefoster placement. The court found that the children had expressed
no interest in further contact with respondent and had a good
relationship with their prospective parents. The court concluded
that termination of respondent's rights would serve the best
interests of the minor children by removing the sole remaining
obstacle to their permanent placement plan of adoption.
On appeal, respondent claims that the district “court erred
when it concluded that [she] had neglected the children.” While
purporting to encompass seven of her assignments of error, however,
her briefed argument quotes the entirety of the findings of fact
and conclusions of law in the adjudicatory order, with several
paragraphs of “contested” findings and conclusions highlighted in
bold text. Rather than address any individual finding or
conclusion with a corresponding argument, respondent offers an
alternative version of events, much of which involves assumptions
or inferences unsupported by evidence. Moreover, only one
paragraph in the body of respondent's argument _ listing her gifts
to the children _ cites the hearing transcript. The subsequent
three pages of narrative lack any supporting citations to evidence,
either from the transcript or the record on appeal. This
constitutes a violation of N.C.R. App. P. 28(b)(6), which requires
summaries of evidence to include “appropriate reference to the
record on appeal or the transcript of proceedings, or the
exhibits.” N.C.R. App. P. 28(b)(6) (2007). Accordingly, although
respondent has assigned error individually to five enumerated
findings in the adjudicatory order, she has failed to present thisCourt with a properly-briefed argument as to any particular
finding. See In re H.L.A.D., __ N.C. App. __, __, 646 S.E.2d 425,
436 (2007) (“[R]espondent does not bring forward her assignments of
error with specific arguments challenging these findings of
fact.”); In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404
(2005) (holding that the respondent abandoned her assignments of
error to findings of fact when she “failed to specifically argue in
her brief that they were unsupported by evidence”). We therefore
deem the district court's findings of fact to be binding for
purposes of our review. Id. Accordingly, we must determine
whether the court's findings support its conclusion of law that
grounds for termination exist under N.C. Gen. Stat. § 7B-
1111(a)(1). In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838,
840 (2000).
A court may terminate parental rights pursuant to N.C. Gen.
Stat. § 7B-1111(a)(1), if it finds by clear, cogent, and convincing
evidence that the parent has “neglected the juvenile.” A child is
neglected if he is denied of “proper care, supervision, or
discipline” or “lives in an environment injurious to [his] welfare
. . . .” N.C. Gen. Stat. § 7B-101(15) (2005). To constitute
neglect, the parent's actions must place the child at “substantial
risk” of “physical, mental, or emotional impairment.” In re
Beasley, 147 N.C. App. 399, 403, 555 S.E.2d 643, 646 (2001)
(quotations and citations omitted). Where a child has been placed
outside of the parent's care for a significant period prior to the
hearing, “a trial court may find that grounds for termination existupon a showing of a history of neglect by the parent and the
probability of a repetition of neglect.” In re L.O.K., J.K.W.,
T.L.W., & T.L.W., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242
(2005) (quotations and citation omitted). The court must consider
any changed conditions since the children's removal from the home,
In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984), but
may terminate a parent's rights “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[s] were returned to [their] parent[].” In re Reyes, 136
N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted).
Here, the court supported its adjudication of neglect with the
following findings:
6. . . . [T]he mother's criminal history
includes simple assault and several
convictions for possession of drug
paraphernalia and possession of marijuana. As
of November 28, 2005, [she] was living with
the children in a home to which the power had
been cut off, and power was being provided
from a neighbor's home through an extension
cord. Several days after striking the
maternal grandmother, Connie W[.], on February
16, 2006, the mother hit Connie W[.] with the
handle of a knife when the children were
present. On February 20, 2006, the mother
broke out a window and smashed two large
goblets in the home in which the children were
present bare-footed, and chased Connie W[.]
with knives. . . . [Respondent] was ordered
to obtain stable housing and employment, take
random drug screens, and complete a
psychological evaluation.
7. The mother did not appear for the [review]
hearing on June 6, 2006. She had signed a
case plan, but had not begun to work on it.
She did not have stable housing and was
employed by a temporary agency, and had notgiven the social worker her contact
information. Visitation with the mother was
suspended at that time. She was living with
friends who had a telephone, but she didn't
contact the social worker. Her explanation
that she left messages once per month for the
worker is not found credible.
8. As of August 29, 2006, the mother had not
begun to work on her case plan and had chosen
to activate a criminal sentence even though
she knew of the things that had been required
of her. The court . . . ordered that further
efforts with the mother cease. On October 18,
2006, [DSS] filed its motion to terminate
parental rights.
9. The mother was released from incarceration
in early November of 2006. She did not meet
with a child support agent until after her
release. She set up an appointment with the
social worker scheduled for November 28, 2006,
but . . . failed to appear for the
appointment. As of this time, she has not
completed any of the items which were ordered
by the court and are in her case plan.
10. Even as of the time of the hearing on the
motion to terminate parental rights, the
mother has not had the ordered psychological
evaluation, much less comply [sic] with any
recommendations for counseling or treatment
that such an evaluation might order. She has
had one counseling session at Family Net.
11. That the mother took drug screens for her
probation officer did not relieve her of the
responsibility to take random drug screens as
requested by the social worker. The mother
knew when her probation meetings were
scheduled and that there was a good chance
that she would be tested.
12. [DSS] attempted to maintain contact with
the mother. A replacement worker was assigned
while the regularly assigned worker was on
maternity leave. By the time the mother
learned of the worker's maternity leave, the
regularly assigned worker was back on the
case. After the mother's release from
incarceration, the mother has not personally
contacted her social worker.
13. The mother received more than $2000.00
from her $4,000.00 insurance settlement
arising from a car accident. She has paid
some money on her child support, but is still
one or two months in arrears. After living
with her father for a short time, she obtained
an apartment. Her rent is $350.00 per month.
She earns around $100.00 per week cleaning in
a laundromat. As of this time, she has spent
all of . . . her settlement funds. She is
unable to support herself and the child[ren].
These findings are fully supported by the hearing testimony of
McRary and respondent, as well as the prior orders entered in this
cause. We note that the district court was entitled to accept
McRary's account of events and to disbelieve respondent's competing
testimony, in its capacity as the trier of fact. In re
Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 397-98
(1996). In light of the prior adjudication of dependency and
neglect on 18 May 2006, the court further found “a strong
probability that neglect would continue if the children were
returned to the home of [respondent] at this time or any time in
the foreseeable future.”
We hold that the facts found by the district court are
sufficient to establish grounds for termination under N.C. Gen.
Stat. § 7B-1111(a)(1). At the time of the prior adjudication of
neglect, respondent had exposed A.W.T. and L.O.L. to a series of
violent acts in the home against their grandmother, placing the
children at risk of physical or emotional harm. There was
additional evidence that she had failed to tend to the children's
educational and developmental needs and lacked appropriate housing.
Moreover, respondent's criminal history suggested a problem withsubstance abuse. Respondent entered into a case plan with DSS on
24 March 2006, but had made no attempt to complete her plan or to
remain in contact with DSS regarding the fate of her children at
the time of the termination hearing on 19 March 2007. She had not
visited with the children since 24 May 2006, having refused the
random drug screens that were required for further visitation. At
the time of the hearing, respondent had yet to obtain a
psychological evaluation or to provide her contact information to
McRary. She failed to attend or reschedule a 28 November 2006
appointment with DSS arranged by her father following her release
from incarceration. Moreover, although respondent claimed to have
part-time work earning $100.00 per week, her monthly rent was
$350.00; she had already expended the proceeds of a $4000.00
insurance settlement obtained in November of 2006. Respondent's
lack of effort toward correcting the conditions which led to the
prior adjudication of neglect was sufficient to support the
district court's finding of a probability of further neglect if the
children were placed in her care. See In re Davis, 116 N.C. App.
409, 413-14, 448 S.E.2d 303, 306 (1994).
Respondent next claims that the district court abused its
discretion by concluding that termination of her parental rights
would serve the best interests of the minor children. We note that
respondent's brief to this Court fails to present any cognizable
challenge to the findings of fact in the dispositional order,
notwithstanding her nine corresponding assignments of error in the
record on appeal. After articulating the legal standard applicableto dispositions under N.C. Gen. Stat. § 7B-1110, and the abuse of
discretion standard of review, respondent again simply quotes the
entirety of the findings and conclusions in the dispositional order
and highlights in bold text the findings and conclusions with which
she disagrees. After more than two pages of single-spaced
quotations, she presents a short paragraph of argument unsupported
by any citation to the evidence or to any legal authority. The
findings are therefore binding on appeal. N.C.R. App. P. 28(b)(6)
(2007).
Once the district court finds grounds for termination under
N.C. Gen. Stat. § 7B-1111(a), it must select an appropriate
disposition based upon an assessment of the best interests of the
minor child. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d
659, 662 (2001); N.C. Gen. Stat. § 7B-1110 (2005). The decision to
terminate parental rights under N.C. Gen. Stat. § 7B-1110 is
reviewed only for manifest abuse of discretion. In re J.A.A. &
S.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005) (citation
omitted).
In claiming an abuse of discretion by the district court,
respondent “reincorporate[s]” her argument regarding the
adjudication of neglect. Inasmuch as we have affirmed the court's
adjudication under N.C. Gen. Stat. § 7B-1111(a)(1), this argument
is unavailing. Respondent also notes McRary's testimony that she
had interacted appropriately with the children during her
visitations and “had a close relationship with the children at thattime.” As noted in the adjudicatory order, however, respondent had
not visited with the children since 24 May 2006.
We find no abuse of discretion by the district court. The
dispositional order includes findings on each of the relevant
factors set forth in N.C. Gen. Stat. § 7B-1110(a), including the
minor children's ages and prospects for adoption; their lack of
apparent interest in further contact with respondent; and their
good relationship with their adoptive parents. The court noted
that termination would further the children's permanent placement
plan of adoption. It also took into account the developmental
needs of the children, noting L.O.L.'s diagnosis as borderline
autistic and A.W.T.'s “delays in school due to his having missed
days in school” while in respondent's care. The court found that
the children were receiving counseling and speech therapy and had
successfully transitioned into an adoptive foster placement with
parents who were aware of their special needs. Finally, the court
deemed it “unlikely that [respondent] would be a proper custodian
even should the current adoptive placement disrupt.” The order
reflects a reasoned decision by the court properly focused on the
children's well-being and need for permanency.
Affirmed.
Judges WYNN and STROUD concur.
Report per Rule 30(e).
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