Opinion
No. 05-163.
Filed January 3, 2006.
Burke County No. 03 J 66.
Appeal by respondent from order entered 1 September 2004 by Judge C. Thomas Edwards in Burke County District Court. Heard in the Court of Appeals 12 October 2005.
Stephen M. Schoeberle for petitioner-appellee Burke County Department of Social Services. No brief filed for petitioner-appellee guardian ad litem. Winifred H. Dillon for respondent-appellant father.
Richard A. ("respondent"), father of the minor child A.L.W.A. ("minor child"), appeals the trial court's 1 September 2004 order ("the Order") terminating respondent's parental rights. For the reasons stated herein, we affirm.
Pertinent procedural and factual background information includes the following: Respondent and April P. ("the mother") are the natural parents of the minor child, born in 2000. Respondent and the mother resided together with the minor child from the time of the latter's birth until the fall of 2002. On 13 March 2003, the Burke County Department of Social Services (DSS) filed a juvenile petition alleging the minor child to be neglected, citing the child's low weight and "failure to thrive" diagnosis. The trial court placed the minor child in the custody of DSS pursuant to a nonsecure custody order. While in foster care for approximately one week, the minor child gained weight and was thereupon returned to the mother's home. However, upon losing weight while at the mother's home, the minor child was again placed in the custody of DSS. On 22 May 2003, the trial court adjudicated the minor child neglected.
On 6 May 2004, DSS moved to terminate the parental rights of respondent and the mother, alleging the minor child had been (1) neglected by the parents and (2) wilfully left in foster care for more than twelve months without showing that reasonable progress under the circumstances had been made in correcting the conditions which resulted in custody being placed in DSS. Following a 26 August 2004 hearing, the trial court entered the Order concluding that sufficient grounds as alleged by DSS existed pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) and (2) to terminate respondent's parental rights and that it was in the best interests of the minor child to do so. Respondent appeals.
Initially, we note respondent has failed to present argument on two of his original four assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the omitted assignments of error are deemed abandoned. We therefore limit our present review to those assignments of error properly preserved for appeal.
In his remaining arguments, respondent maintains the trial court's finding of fact number twelve is not supported by clear, cogent and convincing evidence, and further challenges the court's conclusion that sufficient statutory grounds for termination existed. We find respondent's arguments unpersuasive.
A proceeding to terminate parental rights is bifurcated. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). In the adjudication phase, see N.C. Gen Stat. § 7B-1109 (2003), the petitioner (DSS herein) bears the burden of establishing by clear, cogent, and convincing evidence that termination is supported by one or more of the grounds set out in N.C. Gen. Stat. § 7B-1111 (2003). Id. The standard of appellate review governing the adjudication phase is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence, and whether the court's findings support its conclusions of law. Baker, 158 N.C. App. at 493, 581 S.E.2d at 146.
Subsequently, in the disposition phase, see N.C. Gen. Stat. § 7B-1110 (2003), the trial court must consider whether termination is in the best interests of the child. N.C.G.S. § 7B-1110(a). Appellate review of this determination is limited to an abuse of discretion standard. In re Brim, 139 N.C. App. 733, 744, 535 S.E.2d 367, 374 (2000).
In the case sub judice, respondent's arguments are directed solely at the adjudication phase. Respondent assigns error to the trial court's finding of fact number twelve ("finding twelve") and to the court's conclusion that one or more of the statutory grounds for termination existed herein. We consider respondent's arguments ad seriatim.
Finding twelve reads: The minor child was adjudicated to be neglected on May 22, 2003. Neither Ms. P nor Mr. A have made any reasonable progress under the circumstance in correcting the conditions that led to the removal of the minor child. Ms. P has failed to have contact with anyone involved in the case for 9 months, and Mr. A, though readily available to engage in remedial acts, has failed to do so. Due to their failures, there is a substantial likelihood that, were the minor child to be returned to either of them, that neglect would be repeated.
Respondent initially attacks that portion of finding twelve stating that respondent, "though readily available to engage in remedial acts, has failed to do so." Respondent insists the court's statement is not supported by clear, cogent, and convincing evidence. We do not agree.
Respondent, by his own admission, was unemployed at the time of the termination hearing and maintained only sporadic employment throughout the pendency of the proceedings below. Moreover, respondent continued to reside with his mother and was dependent solely upon her for food and shelter. Additionally, respondent relied upon his mother for transportation because, although eligible to obtain a driver's license, he had made no attempt to secure one. Further, respondent dropped out of school in the ninth grade and discontinued his later attempt to obtain a GED. Notwithstanding the minor child's severe nutritional deficits, respondent also simply took the mother's word she was feeding the minor child properly and made no effort to ensure she was doing so. Further, at the termination hearing, respondent asserted he "[wa]s trying to get his life straightened out," but readily admitted that "it ain't happening." Finally, respondent was accorded the opportunity for a home study to evaluate his residence for possible placement of the minor child in his custody, but respondent was absent when the social worker and guardian ad litem arrived at the time agreed upon by respondent and ordered by the trial court. The foregoing, derived from respondent's own testimony, provide clear, cogent, and convincing evidence supporting the finding that he failed to engage in remedial efforts. See In re Adcock, 69 N.C. App. 222, 225, 316 S.E. 2d 347, 349 (1984) ("failure to provide a stable living environment and proper food and clothing" constitutes clear evidence of neglect); see also In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984) ("clear, cogent and convincing standard" is "greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases").
Respondent next directs our attention to two portions of finding twelve, which he properly characterizes as "conclusions designated findings," see In re M.R.D.C., 166 N.C. App. 693, 697, 603 S.E.2d 890, 893 (2004) (if a "finding of fact is essentially a conclusion of law . . . it will be treated as a conclusion of law. . . .") (citation omitted), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005), and which 1) recite the failure of respondent to make "any reasonable progress under the circumstance[s] in correcting the conditions that led to the removal of the minor child," and 2) provide there was "a substantial likelihood that, were the minor child to be returned to [respondent,] that neglect would be repeated." These two statements reiterate, and thus essentially are subsumed in, the trial court's conclusion of law number three ("conclusion three") which reads as follows:
Sufficient grounds exist pursuant to N.C.G.S. § 7B-1111(a)(1) and (a)(2) for the termination of the parental rights of [respondent] in that [he has] neglected the minor child, and in that [he has] wilfully left the minor child in foster care for more than 12 months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the minor child.
In his final assignment of error, respondent contends conclusion three is "not supported by the findings of fact or by the evidence." We are persuaded otherwise.
In conclusion three, the trial court set out its determination that DSS had established two separate statutory grounds for termination of respondent's parental rights: (1) neglect, see N.C.G.S. § 7B-1111(a)(1), and (2) wilfully leaving the minor child in foster care 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 minor child, see N.C.G.S. § 7B-1111(a)(2). Under N.C.G.S. § 7B-1111(a), establishment of a single statutory ground for termination permits the court to proceed to the dispositional phase. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 407 (2003). Accordingly, if the trial court's findings of fact, other than the portions of finding twelve properly considered conclusions of law, are supported by the evidence and sustain one of the court's stated statutory grounds for termination, the Order may be affirmed without review of the remaining ground. We elect to consider first whether the record supports termination of respondent's parental rights on grounds of neglect under N.C.G.S. § 7B-1111(a)(1).
To establish neglect in a termination of parental rights case, the petitioner must present clear, cogent, and convincing evidence that: (1) the juvenile is neglected within the meaning of N.C. Gen. Stat. § 7B-101(15), 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). A neglected juvenile is
[one] 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. . . .
N.C.G.S. § 7B-101(15) (2003).
Further, "a prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect." In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). However, where
there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated 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 were returned to [his] parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000). The Order contains the following findings of fact pertinent to the issue of neglect:
5. The minor child was removed from his mother's home on March 13, 2003, pursuant to a nonsecure custody order, and placed in foster care, due to his low-weight, failure-to-thrive status, which was later diagnosed as psycho-social dwarfism. While in foster care, he gained weight and flourished. On March 20, 2003, that nonsecure custody order was dissolved, and the minor child was returned to his mother's home. While back in his mother's home, the minor child's condition deteriorated and he lost weight. This necessitated the entry of another nonsecure custody order and the minor child's return to foster care, where he has steadily gained weight. However, he continues to have significant problems related to his failure to receive sufficient nutrition in his mother's home.
. . . .
7. Mr. A resided with Ms. P and the minor child from the minor child's birth until approximately the fall of 2002. Thereafter, he had sporadic contact with the minor child until the petition was filed in March of 2003. During the period that the minor child was returned to Ms. P's home from March 20, 2003, to April 7, 2003, Mr. A visited the minor child approximately twice. In spite of the minor child's condition, Mr. A did not ensure that he was being properly fed but merely took Ms. P's word for it.
8. While this action has been pending, Mr. A has resided continuously with his mother. He is dependent on her goodwill for his shelter, clothing, food and transportation. He does not have a driver's license, but he is eligible to get one. He is not currently employed, but he states that he has a job starting next week. This situation is similar to his situation in May, October, and November of 2003. He has worked sporadically, often at odd jobs, and has not been able to maintain employment for any significant period of time. He started working on a GED, but stopped and has not resumed.
9. On July 31, 2003, Mr. A requested that the Court consider his mother's home for placement of the minor child with him. The Court inquired when he would be available for a visit by the social worker and the guardian ad litem, and he stated that he would be there between 4:30 p.m. and 5:00 p.m. the next day. On August 1, 2003, Ms. Cales and Ms. Atkins went to the residence at 4:30 p.m. They were denied access to the residence by Mr. A's mother and were told that Mr. A was not there. As a result, they could not evaluate the residence to see if it were appropriate. Mr. A stated today that he went to work rather than to be home for the visit.
10. Prior to the cessation of reunification efforts on October 23, 2003, Mr. A attended visitation at the Department with the minor child. However, such visitation included inappropriate conduct by Mr. A wherein he pretended to cut off the minor child's leg with a toy saw and told him to "run, nigger, run."
11. Mr. A stated that he "is trying to get his life straightened out" but that "it ain't happening". The Court agrees. . . .
12. The minor child was adjudicated to be neglected on May 22, 2003. . . .
Although insisting in his final assignment of error that the trial court's conclusion of law determining neglect under N.C.G.S. § 7B-1111(a) "is not supported by the findings of fact or the evidence," respondent has assigned error to none of the foregoing findings. See N.C.R. App. P. 10(a) (2005) ("scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal"). Findings of fact unchallenged on appeal "are deemed supported by competent evidence" and are binding upon this Court. In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003). Additionally, we have determined above that the portion of finding twelve properly considered a finding of factwas supported by clear, cogent and convincing evidence. We therefore proceed to examine whether the trial court's findings of fact support its conclusion of neglect.
Respondent, contending to the contrary, does not address the findings directed at the minor child's obvious nutritional deficiencies, thereby in essence conceding the minor child sustained "some physical . . . impairment." See Ore, 160 N.C. App. at 589, 586 S.E.2d at 488. Focusing rather upon those findings which address his failure to "provide proper care [and] supervision," see N.C.G.S. § 7B-101(15), to the minor child, respondent insists he "had no involvement in the conditions which led to the removal of the juvenile" and that "[i]t was beyond his power to correct th[o]se conditions." Respondent's assertions are belied by the unchallenged findings above setting out his minimal contact with the minor child as well as his lack of involvement in the child's care and inappropriate conduct while visiting with the child. See In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (evidence of minimal contact properly considered in determining neglect), aff'd per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003); In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982) ("neglect may be manifested in ways less tangible than failure to provide physical necessities" including "failure to provide the personal contact, love, and affection that inheres in the parental relationship"). Moreover, the trial court, having the opportunity on several occasions to observe respondent and determine what weight and credibility to give his testimony, noted respondent's failure "to engage in remedial acts" in finding twelve sustained infra. Finally, in respondent's appellate brief, we deem telling respondent's severely qualified gloss upon the instant record:
[respondent] complied with all orders of the court, except the requirement that he be home for a home visit . . . [and] paid child support with the exception of the current month, and in fact had worked and earned money, although that employment may have been intermittent.
(emphasis added). See Adcock, 69 N.C. App. at 224, 316 S.E.2d at 348 ("nonfeasance as well as malfeasance" by a parent may constitute neglect).
In sum, the unchallenged findings of fact outlined above, as well as that part of finding twelve directed at respondent's failure "to engage in remedial acts," more than adequately support the trial court's characterization of the minor child as a neglected juvenile as well as the court's conclusion that sufficient grounds existed to terminate respondent's parental rights pursuant to N.C.G.S. § 7B-1111(a)(1). Having so ruled, we need not address respondent's argument regarding termination of his parental rights pursuant to N.C.G.S. § 7B-1111(a)(2). See Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407.
Affirmed.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).