IN RE L.D., COA10-1193 (N.C.App. 3-15-2011)

711 S.E.2d 207

No. COA10-1193North Carolina Court of Appeals
Filed 15 March 2011 This case not for publication

Harnett County No. 09 JT 005.

Appeal by respondent-father from order entered 2 July 2010 by Judge Charles P. Bullock in Harnett County District Court. Heard in the Court of Appeals 28 February 2011.

E. Marshall Woodall and Duncan B. McCormick for Harnett County Department of Social Services, petitioner-appellee.
Pamela Newell for guardian ad litem.
David A. Perez for father, respondent-appellant.

ERVIN, Judge.

Respondent-Father Jimmy D. appeals from the trial court’s order terminating his parental rights in his daughter, Leah.[1] On appeal, Respondent-Father contends that the trial court erred by finding that his parental rights in Leah were subject to termination for abuse and neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), for willfully leaving Leah in foster care for more than twelve months without making reasonable progress toward addressing the conditions that led to her removal from the home pursuant to

Page 2

N.C. Gen. Stat. § 7B-1111(a)(2), and for willfully abandoning Leah pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). After careful consideration of Respondent-Father’s challenges to the trial court’s termination order in light of the record and the applicable law, we conclude that the trial court’s order should be affirmed.

I. Factual Background
On 16 January 2009, the Harnett County Department of Social Services took Leah into its custody pursuant to the issuance of a non-secure custody order. On that same date, DSS filed a juvenile petition alleging that Leah was a physically abused and neglected juvenile. On 1 April 2009, DSS filed an amended petition alleging that Leah was a sexually and emotionally abused and neglected juvenile. On 4 December 2009, the trial court entered an adjudication order determining that Leah was a physically, sexually, and emotionally abused juvenile. The trial court also found that Leah was a neglected juvenile.

On 9 March 2010, DSS filed a motion seeking the termination of Respondent-Father’s parental rights in Leah. In its termination motion, DSS alleged that Respondent-Father’s parental rights in Leah were subject to termination on the grounds of neglect and abuse pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), willfully leaving Leah in foster care for more than twelve months without making reasonable progress toward addressing the conditions that led to her removal from the home pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), willfully failing to pay a reasonable portion of Leah’s care despite having the means to do so pursuant to N.C. Gen. Stat.

Page 3

§ 7B-1111(a)(3), and willfully abandoning Leah pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). By means of an order entered 2 July 2010, the trial court determined that Respondent-Father’s parental rights in Leah were subject to termination pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (a)(2), and (a)(7) and that it would be in Leah’s best interest for Respondent-Father’s parental rights to be terminated. Respondent-Father noted an appeal to this Court from the trial court’s order.

II. Legal Analysis
On appeal, Respondent-Father argues that the trial court erred in determining that his parental rights in Leah were subject to termination because its conclusions of law to the effect that his parental rights were subject to termination pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (a)(2), and (a)(7) were not supported by proper findings of fact or competent evidence. We do not find Respondent-Father’s challenges to the trial court’s order to be persuasive.

Termination of parental rights cases are conducted in two stages. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists.” In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). In reviewing appellate challenges to a trial judge’s adjudication decision, we determine “whether the trial court’s findings of fact are based on clear, cogent, and convincing

Page 4

evidence and whether those findings support the trial court’s conclusion that grounds for termination exist pursuant to N.C. Gen. Stat. § 7B-1111.”In re C.W. J.W., 182 N.C. App. 214, 219, 641 S.E.2d 725, 729
(2007) (citing In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 395 (1996)). The trial court’s conclusions of law are, on the other hand, subject to de novo review. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006). At the dispositional stage, “the court shall determine whether terminating the parent’s parental rights is in the juvenile’s best interest.” N.C. Gen. Stat. § 7B-1110(a). The trial court’s dispositional decision is subject to appellate review for abuse of discretion. Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602. Respondent-Father’s challenges to the trial court’s decision to terminate his parental rights in Leah are directed exclusively to adjudication-related issues.

As we have already noted, the trial court found that Respondent-Father’s parental rights in Leah were subject to termination for, among other reasons, abuse and neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). A trial court may terminate a parent’s parental rights where “[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 [N.C. Gen. Stat. § ] 7B-101 or a neglected juvenile within the meaning of [N.C. Gen. Stat. § ] 7B-101.” N.C. Gen. Stat. § 7B-1111(a)(1). “The trial court must also consider any evidence of changed conditions in light of the

Page 5

evidence of prior [abuse and] neglect and the probability of a repetition of [abuse and] neglect.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.” Id. (emphasis in the original). When there has been a prior adjudication of abuse, the petitioner in a termination of parental rights case must establish that “grounds for termination — here abuse or the probability of its repetition — exist at the time of the termination proceeding.” Alleghany County v. Reber, 75 N.C. App. 467, 470, 331 S.E.2d 256, 258 (1985), aff’d, 315 N.C. 382, 337 S.E.2d 851
(1986). Similarly, in order to support termination of a parent’s parental rights based on neglect, “there must be clear, cogent and convincing evidence of (1) neglect and (2) as a consequence of the neglect, `the juvenile has sustained “some physical, mental or emotional impairment. . . . or [there is] a substantial risk of such impairment. . . .”‘” In re Ore, 160 N.C. App. 586, 589, 586 S.E.2d 486, 488 (2003) (quoting In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (quotin In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-902
(1993))). “In cases of this sort, the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case.” In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).

Page 6

Although Respondent-Father concedes that the trial court’s findings of fact establish that he abused and neglected Leah in the past, he contends that the trial court’s factual findings and the information contained in the evidentiary record do not suffice to show that Leah was subject to any abuse or neglect at the time of the termination hearing or that there was a substantial risk that the abuse and neglect to which Leah had been subjected in the past would recur. We are unable to agree with Respondent-Father’s contention.

In its termination order, the trial court found as a fact that:

14. After considering evidence presented at the adjudication hearing, the court made the following findings (some of which are fully set forth or paraphrased):[2]
a. At the time of the filing of the . . . (first petition herein, the juvenile and her siblings) . . . were residing in the marital home of respondents Jimmy and Valerie [D.] . . . .

. . . .

k. During the past eleven (11) years, [Respondent-Father] has been subject to approximately 18 [child protective services] reports . . . to DSS agencies including Moore, Hoke, Richmond and Harnett Counties. Investigations of these reports have

Page 7

involved allegations from inappropriate discipline, inappropriate supervision, sexual misconduct, improper care and domestic violence. [Respondent-Father] has been substantiated twice for physical abuse and twice for inappropriate supervision.

. . . .

o. At the time of a child medical exam or evaluation of [Leah] on January 16, 2009, the following bruises and marks were present upon and about the juvenile’s body, to wit: a large purple bruise on the inner thigh in the left groin area; a large bruise on her back, located below her shoulder blade; various other bruises of varying ages on her body to include her face and various old scars on her back, arm and legs.
p. The injuries (as described in the immediate preceding paragraph) which caused the foregoing marks and bruises upon the body of [Leah] are consist[ent] with injuries caused by non-accidental means.
q. [Leah] has been subjected to inappropriate means of discipline to change behavior to include being locked or put in a closet to sleep and having food withheld (or made to go to bed without eating), thereby causing emotional harm or the threat of emotional harm to the juvenile.
r. The aforesaid injuries to [Leah] were caused by the [R]espondent[-F]ather when he kicked the juvenile in the groin area with [] his feet, punch[ed] her in the stomach, chest and other areas of her body[,] hit her in the face, head, stomach and chest with boxing gloves. [Respondent-Father] caused the juvenile’s arm to be broken by twist[ing] it; at the instruction of her father, she told the medical

Page 8

personnel that she had fallen off the porch and broken her arm.
s. [Respondent-Father] sexually abused [Leah] by performing penile-vaginal penetration, digital vaginal penetration, fondling the juvenile’s chest area, and making the juvenile perform acts of fellatio. These acts of misconduct were performed more than once over the past two years.
t. [Leah] observed [Respondent-Father] taking (other siblings who were juveniles) into his room, closing and locking the door on many occasions.
u. As a result of physical and sexual abuse and maltreatment suffered by [Leah] by the actions of [Respondent-Father], she suffered serious emotional damage as evidenced by severe anxiety and extreme anger demonstrated by the juvenile’s expression of fear of her father and her desire not to have contact with him.
v. As an act of discipline, [Respondent-Father] marched [Leah] (and other siblings], while naked, into the woods with a gun pointed at them and threatening them until someone confessed to stealing a soda.

After reaffirming these factual findings, the trial court further found as a fact that:

16. Shortly after court involvement on January 16, 2009, [R]espondent[-F]ather entered into a family service agreement (FSA) with the DSS social worker on January 23, 2009. He agreed to participate in a psychological evaluation, participate in parenting classes and visit with the juvenile. [Respondent-Father] completed a psychological evaluation but failed to

Page 9

enroll in a parenting class. He visited four (4) time[s] prior to the suspension of visitation by the court around the middle of February to March 2009.

. . . .

21. . . . . As a result of a court order in Moore County, North Carolina, $300 for [Leah] and $300 for a sibling is being withheld from [the mother’s] benefit payments and was once made available to [Respondent-Father]. The evidence is unclear as to when these funds were begun to be withheld from the mother’s benefits; they were apparently being paid to [Respondent-Father] until at least May 2009.

. . . .

24. The social worker talked with the father about his responsibility to support the juvenile.
25. At the time of the removal of the juvenile from the father on or about January 16, 2009, he was not employed; he maintained that he had been injured in an auto accident and was waiting on a settlement of a claim.
26. After the last visit with the juvenile in February or March 2009, [Respondent-Father] failed to maintain contact with the social worker. He has not called the social worker about the child, has not sent any correspondence, cards or gifts or sent any support to defray the cost of the juvenile’s care.

. . . .

28. Since on or about September 25, 2009, the father has been incarcerated in the Harnett County Jail.
29. The six (6) months [] immediately prior to the filing of the motion to terminate parental rights (September 9, 2009 to March 9, 2010), the juvenile has been in foster care as arranged by DSS. The cost

Page 10

of care for said six (6) month period for the juvenile was $6,124.10 (consisting of room and board payments of $3,486.00, clothing allowance of $100.00 and day care assistance of $2,438.10).
30. During the entire time the juvenile has been in care, the father paid nothing to [defray] the cost of the care of the juvenile herein.

. . . .

35. The juvenile expresses fear of her father and states she does not want to see him. There appears to be no parental bond between the juvenile and her father.

Based upon these findings of fact, the trial court concluded as a matter of law that:

4. Grounds exist for the termination of the [R]espondent[-F]ather’s . . . parental rights pursuant to [N.C. Gen. Stat. § ] 7B-1111(a)(1) (sexually, physically and emotionally abused the juvenile); (1) (neglected the juvenile). . . .

. . . .

6. Neglect of the juvenile by the father continues to the present by reason of the abus[iv]e action of the father which created a trauma to the child together with his neglectful actions since placement of the juvenile in January, 2009, followed by the failure to make any progress on a relationship with his daughter during the time juvenile has been in foster care. Said abusive and neglectful conduct creates the likelihood that if the juvenile were returned or placed with the father, the juvenile would be at risk of harm or neglect.

. . . .

8. The father was given the opportunity to be reunited with the juvenile and he also was able to participate in the service

Page 11

programs and his failure to do so constitutes willfulness on his part.

In light of these findings of fact and conclusions of law, the trial court determined that Respondent-Father’s parental rights in Leah were subject to termination.

Although Respondent-Father concedes that the trial court’s findings of fact sufficed to establish the existence of a prior adjudication of abuse and neglect, he contends on appeal that the trial court’s findings of fact and the evidentiary record did not demonstrate the existence of a reasonable likelihood that abuse or neglect of Leah would recur in the event that she were to be returned to his custody. In support of this contention, Respondent-Father argues that he had complied with all but one aspect of his case plan (the portion requiring him to enroll in parenting classes), that his visits with Leah had been involuntarily terminated, and that any efforts that he might have made to have further contact with Leah would have inevitably been opposed by DSS and thwarted by the trial court. Respondent-Father does not, however, contend that any of the trial court’s findings of fact lack adequate evidentiary support, making them binding for purposes of appellate review. In re J.A.A. S.A.A., 175 N.C. App. 66, 68, 623 S.E.2d 45, 46 (2005). A careful analysis of the trial court’s factual findings provides ample support for the trial court’s conclusion that Leah “would be at risk of harm or neglect” if returned to Respondent-Father’s care. According to those factual findings, Respondent-Father had severely abused and neglected Leah for a considerable period of time prior to the date

Page 12

upon which she was taken into DSS custody, causing her to sustain “serious emotional damage as evidenced by severe anxiety and extreme anger” and resulting in “the juvenile’s expression of fear of her father and her desire not to have contact with him.” Although the sheer extent and duration of Respondent-Father’s past abuse and neglect of Leah might suffice in this case, without more, to support the trial court’s determination that Respondent-Father’s parental rights in Leah were subject to termination for abuse and neglect, the trial court’s additional findings that Respondent-Father had failed to complete his case plan, that Respondent-Father had not taken the initiative to remain apprised of Leah’s progress toward recovering from the effects of her prior abuse and neglect, and that Respondent-Father had not, prior to his incarceration, made any effort to provide support for Leah, combine, when coupled with the facts surrounding the original adjudication of abuse and neglect, to adequately support the trial court’s adjudication decision. At best, Respondent-Father’s argument amounts to a request that we reweigh the evidence presented to the trial court and reach a different conclusion, a step that we are not authorized to take under the applicable standard of review. Thus, the trial court did not err by determining that Respondent-Father’s parental rights in Leah were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).

III. Conclusion
As a result, we hold that the trial court did not err by concluding that grounds existed to terminate Respondent-Father’s

Page 13

parental rights in Leah on the basis of abuse and neglect. In view of the fact that a single ground for termination is sufficient to support a trial court’s decision to move from the adjudication phase to the dispositional phase of a termination proceeding, we need not address Respondent-Father’s remaining challenges to the trial court’s adjudication decision. See In re Brim, 139 N.C. App. 733, 743, 535 S.E.2d 367, 373 (2000). Therefore, since the trial court properly determined that Respondent-Father’s parental rights in Leah were subject to termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), and since Respondent-Father has not challenged the trial court’s dispositional decision, we conclude that the trial court’s termination order should be, and hereby is, affirmed.

AFFIRMED.

Judges STROUD and ROBERT N. HUNTER, JR. concur.

Report per Rule 30(e).

Page 1