Opinion
No. COA04-18
Filed 7 December 2004 This case not for publication
Appeal by respondent from order entered 23 May 2003 by Judge Michael R. Morgan in Wake County District Court. Heard in the Court of Appeals 7 June 2004.
Corinne G. Russell and Anne W. Brill for petitioner-appellee Wake County Human Services. Patricia K. Gibbons for Guardian ad Litem-appellee. Terry F. Rose for respondent-appellant.
Wake County, F.J.S. No. 02 J 625.
Respondent appeals the trial court order terminating her parental rights to her eight-year-old son, Frazier, and her six-year-old son, Franklin. For the reasons discussed herein, we affirm the trial court order.
For the purposes of this opinion, we will refer to the minor child by the pseudonym "Frazier."
For the purposes of this opinion, we will refer to the minor child by the pseudonym "Franklin."
The facts and procedural history pertinent to the instant appeal are as follows: On 4 October 2002, Wake County Human Services ("petitioner") filed a petition ("the petition") requesting termination of respondent's parental rights to Frazier and Franklin. The petition further requested that the parentalrights of the fathers of Frazier and Franklin be terminated as well. The petition contained the following pertinent allegations:
12. That there are facts sufficient to warrant a determination that grounds exist for the termination of parental rights, said grounds as follows:
. . . .
b. That [respondent] abused the children within the meaning of N.C.G.S. Section 7B-101(1): physical abuse on [Franklin] was adjudicated on June 6, 2001 as evidenced by the attached order from the hearing; [respondent] sexually abused [Frazier] as disclosed by him during a Child Mental Health Evaluation by Dr. Teresa Poole in December, 2001.
c. That [respondent] and fathers neglected the children within the meaning of N.C.G.S. Section 7B-101(15), and it is probable that there would be a repetition of the neglect if the children returned to the care of the mother or father.
d. That [respondent] and fathers willfully left the children in foster care for more than twelve (12) months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting the conditions which led to the removal of the children. Poverty is not the sole reason that the parents are unable to care for the children.
On 4 November 2002, respondent filed an answer denying the allegations of the petition. The case proceeded to trial, and the trial court conducted hearings and received evidence from the parties on 27 February 2003 and 24 April 2003. On 24 April 2003, Frazier Sr., Frazier's father, executed a relinquishment of all parental rights to Frazier. Following the hearings, the trial court concluded as a matter of law that respondent had abused Frazier and Franklin as defined by N.C. Gen. Stat. § 7B-101(1) and had neglected Frazier and Franklin as defined by N.C. Gen. Stat. § 7B-101(15). The trial court further concluded as a matter of law that respondent had left the children in foster care for more than twelve months, without showing to the satisfaction of the trial court that reasonable progress had been made to correct the conditions which led to the children's removal. After concluding that it was in the best interests of Frazier and Franklin to do so, the trial court issued an order terminating respondent's parental rights to the children on 23 May 2003. It is from this order that respondent appeals.
For the purposes of this opinion, we will refer to Frazier's father by the pseudonym "Frazier Sr."
We note initially that respondent's brief contains arguments supporting only sixteen of her original twenty-one assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2004), the five omitted assignments of error are deemed abandoned. Therefore, we limit our present review to those assignments of error properly preserved by respondent for appeal.
The issues on appeal are whether: (I) a new trial is required due to an incomplete recordation of the trial court proceedings; (II) the trial court erred by failing to hold a special hearing todetermine the issues raised by the petition to terminate parental rights; (III) the trial court erred by concluding that sufficient grounds exist to terminate respondent's parental rights; and (IV) the trial court erred by taking judicial notice of an underlying case file in the matter.
I.
Respondent first argues that she is entitled to a new trial because the transcript of the termination hearing is incomplete. We disagree.
This Court has previously held that "[w]here a trial transcript is `entirely inaccurate and inadequate,' precluding formulation of an adequate record and thus preventing appropriate appellate review, a new trial may be granted." In re Lineberry, 154 N.C. App. 246, 257, 572 S.E.2d 229, 237 (2002) (quoting State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curium)), cert. denied, 356 N.C. 672, 577 S.E.2d 624 (2003). N.C. Gen. Stat. § 7B-806 (2003) requires that all adjudicatory and dispositional juvenile hearings be recorded by stenographic notes or electrical or mechanical means. However, in In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003), this Court concluded that the "[m]ere failure to comply with this statute standing alone, is . . . not by itself grounds for new hearing." Instead, "in order to prevail on an assignment of error under section 7B-806, [the appellant] must also demonstrate that the failure to record the evidence resulted in prejudice to that party." Id.
In the instant case, respondent makes general allegationsregarding the trial court's findings of fact and asserts that "it is impossible for [her] to adequately perfect her appeal." However, "the use of general allegations is insufficient to show reversible error resulting from the loss of specific portions of testimony caused by gaps in recording." Id. (citing In re Peirce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (no prejudice shown where party failed to allege or show in the record the contents of the lost testimony)). "Where a verbatim transcript of the proceedings is unavailable, there are `means . . . available for [a party] to compile a narration of the evidence, i.e., reconstructing the testimony with the assistance of those persons present at the hearing.'" Clark, 159 N.C. App. at 80, 582 S.E.2d at 660 (quoting Miller v. Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)); see N.C.R. App. P. 9(c) (2004) (providing for narration of the evidence in the record on appeal and, if necessary, settlement of the record by the trial court in the form of narration of testimony).
In the instant case, respondent fails to demonstrate that she attempted to reconstruct the missing testimony or made any effort to engage the trial court and petitioner in narration. Although respondent contends that petitioner made no effort to reconstruct the missing testimony prior to appeal, we note that it is the responsibility of the appellant, not the appellee, to ensure that the record on appeal is complete and the transcript constituted in accordance with Rule 9. Miller, 92 N.C. App. at 353, 374 S.E.2d at 468. Moreover, as in Clark, the trial court's extensive findingsof fact in the instant case indicate that the trial court considered and evaluated all the evidence. Without the benefit of a narration, respondent has failed to demonstrate that any prejudice occurred as a result of the improper recordation. Therefore, we overrule respondent's first argument.
II.
Respondent next argues that the trial court committed reversible error by failing to hold a special hearing prior to trial in order to determine the issues raised by the petition. Although we note that respondent failed to object to the trial court's alleged error prior to appeal, this Court has previously held that, where the trial court acts in contravention of a statute to the prejudice of a party, the right to appeal the trial court's error is preserved notwithstanding the respondent's failure to enter an objection. In re Taylor, 97 N.C. App. 57, 61, 387 S.E.2d 230, 232 (1990) (citing State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985)). Thus, we will address the merits of respondent's assignment of error.
Where a respondent denies in his or her answer any material allegation contained within a petition to terminate the respondent's parental rights, N.C. Gen. Stat. § 7B-1108(b) (2003) requires the trial court to conduct a "special hearing . . . to determine the issues raised by the petition and answer[.]" In the instant case, there is no indication in the record that the trial court conducted the special hearing required by N.C. Gen. Stat. § 7B-1108(b). However, because we conclude that there were no issuesthat needed to be resolved in a special hearing, we hold that the trial court's failure to conduct the special hearing was not prejudicial.
In Peirce, 53 N.C. App. at 383, 281 S.E.2d at 204, this Court held that "[t]he fact that the hearing was brief and held just prior to the trial does not conflict with the statutory requirements [of G.S. 7A-289.29(b) (now N.C. Gen. Stat. § 7B-1108(b))]." We recognize that the requirements of N.C. Gen. Stat. § 7B-1108(b) are general, and, as we noted in Peirce, the statute "does not prescribe the exact form the special hearing is to take except that it is to be used to determine the issues raised by the pleadings." Id. at 382, 281 S.E.2d at 204. The clear purpose of the special hearing is to establish which issues remain between the parties after the petition and answer have been filed. Thus, where a respondent agrees with or stipulates to one or more of the allegations of a petition, the trial court may, in a special hearing, dispose of those issues prior to trial and further determine which issues remain for trial.
In the instant case, respondent's answer denied each of the allegations of the petition, thereby indicating that each of the issues presented in the petition were in dispute. Thus, there were no issues remaining for the trial court to dispose of at a special hearing, and therefore, we are not convinced the trial court's failure to conduct a special hearing prejudiced respondent. Accordingly, respondent's second argument is overruled.
III.
Several of respondent's next arguments concern findings of fact and trial testimony related to the trial court's determination that Frazier was sexually abused. As discussed above, the trial court determined that sufficient grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), which allows a trial court to terminate parental rights upon a finding that a parent has abused or neglected a child within the meaning of N.C. Gen. Stat. § 7B-101. Specifically, the trial court concluded that respondent had inflicted serious physical injury upon Franklin and had committed acts upon Frazier that violated N.C. Gen. Stat. § 14-202.1, which prohibits indecent liberties being taken with children. However, the trial court also determined that sufficient grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). Specifically, the trial court concluded that respondent willfully left Frazier and Franklin in foster care for more than twelve months without showing to the trial court's satisfaction that reasonable progress under the circumstances had been made in correcting the conditions which led to the removal of the children.
In a termination of parental rights proceeding, a determination that any one of those grounds listed in N.C. Gen. Stat. § 7B-1111 exists is sufficient to support termination of parental rights. In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322-23 (1988). If on appeal this Court determines that one of the grounds found by the trial court exists, we need notconsider whether the trial court erred in its findings or conclusions regarding other grounds for termination. See In re Shepard, 162 N.C. App. 215, 225, 591 S.E.2d 1, 8 (2004) (concluding that where the trial court properly terminated parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), "we need not consider any other ground of termination found by the trial court."). Thus, in the instant case, because we conclude that the trial court did not err in determining that sufficient grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), we need not address respondent's arguments regarding termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
Termination of parental rights involves a two-stage process. In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d 165, 166 (2002). At the adjudicatory stage, the petitioner must establish by clear, cogent, and convincing evidence that sufficient grounds exist to terminate parental rights pursuant to one of the grounds listed in N.C. Gen. Stat. § 7B-1111. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). On appeal, this Court reviews the trial court's findings of fact to determine whether the findings are supported by clear, cogent, and convincing evidence and whether the findings support the trial court's conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
In the instant case, as discussed above, the trial court determined that sufficient grounds exist to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2003), which authorizes termination upon a finding that
The parent has willfully left the juvenile in foster care or placement outside the home 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 juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
Following the adjudicatory stage in the instant case, the trial court made the following pertinent findings of fact:
25. That the circumstances which caused [Franklin and Frazier] to be placed in foster care were: on or around April 25, 2001, [respondent] beat [Franklin] and EMS was called to address his injuries. He had knots on the left and right sides of his head, a split lip, a knot on his forehead, a large bump on the back of his head, and loop shaped cut marks under his left eye. [Respondent] tried to cover up these injuries with make-up.
26. That [respondent] admitted that she made a mistake when she beat [Franklin].
27. That [respondent] has a history of improper discipline. On or about September 18, 2000, Wake County social worker Susanne Canoutas went to the daycare of [Frazier] and observed him . . . to have marks on his back from a belt or a strap. [Respondent] acknowledged inflicting these marks with a belt or strap, stating it was her right to spank.
. . . .
34. That as a result of the injuries to [Franklin] on April 25, 2001, Wake County Human Services obtained non-secure custody of [Franklin and Frazier].
35. That [respondent] informed Treatment worker, Susanne Canoutas, that she had a right to hit the children and did not consider the manner in which she had left marks on [Franklin] to be abuse.
. . . .
41. That as part of a plan to reunify with her children, [respondent] was ordered . . . to successfully complete nurturing/parenting classes, demonstrate and apply positive discipline consistently, successfully complete anger management classes, demonstrate self-control in response to stressful situations, submit to a Psychological Evaluation and comply with all recommendations, pay child support and participate in supervised visitation with her children.
. . . .
45. That [respondent] completed anger management classes though Wake County Human Services had concerns about her failure to do any homework and her attitude toward corporal punishment; [respondent] indicated to both Joyce Wall, social worker supervisor, and Susanne Canoutas, Treatment social worker, that corporal punishment was what she needed to do and how she was punished.
. . . .
48. That Maris[h]a Hart, psychotherapist with Triangle Family Services, tried to work with [respondent] to provide counseling, seeing [respondent] on September 26, 2002 for first screening, seeing her for a second screening on October 16, 2002 and seeing her for an intake appointment on October 24, 2002.
49. That Maris[h]a Hart made a treatment plan for [respondent], with the goals of addressing anger management and frustration, discussing concerns associated with Child Protective Servicesand addressing medication management with Dr. Golding until [respondent] was stable for [a] minimum period of at least six months.
50. That Maris[h]a Hart was not successful in achieving the goals of the treatment plan with [respondent], in that [respondent] vehemently denied abusing her son. While she did say she hit her son, [respondent] noted that the belt buckle snapped up.
51. That Ms. Hart had two therapy sessions with [respondent] on October 30, 2002, and November 19, 2002. [Respondent] missed appointments on November 12 and December 11, 2002.
52. That two therapy sessions did not involve enough time for Ms. Hart to dig into [respondent's] behaviors and what happened in her life.
53. That prior to seeing Ms. Hart at Triangle Family Services, [respondent] saw two other therapists: she saw Annie Lang on January 17, 2002, and on . . . January 22, 2002, and for an intake on February 7, 2002, at which time [respondent] indicated she had no goals, that she already dealt with goals. Her case was closed on April 1, 2002, after further unsuccessful attempts to contact her.
54. That [respondent] also saw Stan Yancey, therapist at Triangle Family Services, for a first screening on May 30, 2002, at which [respondent] indicated she didn't know why she needed to come. Her case was closed as she indicated she had no goals.
55. That Ms. Hart testified that if a client has no goals, a treatment case cannot be opened.
. . . .
110. That this Court finds that [respondent] has made some strides in complying with this Court's orders in that she has finished parenting classes, angermanagement, is pretty current in her child support, has stable housing and her employment is heading in the right direction, stabilizing though not stable.
111. That this Court must also find that [respondent] has made little progress in complying with the recommendation of the Psychological Evaluation to engage in therapy, and there has been little to no fulfillment of therapy as recommended and ordered for [respondent]. Therapy is what is necessary for [respondent] to learn to control triggers for impulsive behavior.
. . . .
130. That therapy is necessary for [respondent] to learn to control her behavior and impulses; [respondent] has not gone through therapy and has chosen not to go through therapy.
Based upon these findings of fact, the trial court concluded that respondent had willfully left Frazier and Franklin in foster care for more than twelve months without demonstrating to the trial court's satisfaction that she had made reasonable progress to correct the conditions which led to the removal of Frazier and Franklin. The trial court further concluded that poverty was not the sole reason that respondent was unable to care for Frazier and Franklin, and the trial court subsequently ordered that respondent's parental rights to Frazier and Franklin be terminated. We conclude that the trial court did not err in its determination.
Attached to the petition to terminate parental rights was the trial court's previous order concluding that Franklin was an abused juvenile and that Frazier and Franklin were neglected juveniles in that respondent had inflicted serious injury upon Franklin and that Frazier and Franklin did not receive proper discipline from respondent. Susanne Canoutas ("Canoutas"), a senior practitioner at Wake County Human Services, investigated Frazier and Franklin's case and worked with respondent. At the termination hearing, Canoutas described Franklin's 25 April 2001 injuries in detail and identified pictures taken of Franklin on 25 April 2001 and introduced into evidence. Canoutas further testified that "[o]n the incidents when we were called into [sic] investigate, the mother did admit that she had hit the children and that it was her right to hit the children, that that was — and that she did not consider that abuse." Joyce Wall ("Wall") served as Canoutas' supervisor, and although much of her testimony at the termination hearing focused on allegations of sexual abuse by respondent, Wall testified that after discussing discipline with respondent, "she felt like corporal punishment was what she needed to do and did say that was what was — how she was punished." When asked whether respondent had been deficient in complying with court orders, Wall referred to "[t]he anger management piece, the classes have been attended but the failure to do homework and the attitude that she doesn't understand the impact of the abuse on the children." Wall further testified that
The second thing, a deficit I would consider it, would be the counseling and therapy. For therapy to be beneficial, there needs to be some indication that there's a problem. [Respondent] doesn't think she has a problem. The fact the children were in care almost a year before she started any counseling, and when we questioned her — the children went in care April 2001. She started counseling about February of 2002. When we asked her aboutthat, she said she didn't think that we were serious about the counseling.
Marisha Hart ("Hart"), a psychotherapist at Triangle Family Services, testified that at an intake appointment on 7 February 2002, respondent "indicated no goals." Hart read from the intake report, which said that respondent "stated she did not have any goals as she already dealt with her difficulties through all the classes she was required to take and has completed." After reviewing the record in the instant case, including the foregoing testimony, we conclude that sufficient evidence supports the trial court's findings of fact regarding respondent's efforts subsequent to the removal of her children.
Furthermore, we also conclude that the trial court's findings of fact support its conclusion of law regarding termination. Under N.C. Gen. Stat. § 7B-1111(a)(2), "[w]illfulness means something less than willful abandonment. . . . [and] does not require a showing of fault by the parent." In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996) (citations omitted). In Oghenekevebe, this Court concluded that willfulness may be found even where a parent has made an attempt to regain custody of a child but has failed to exhibit "reasonable progress or a positive response toward the diligent efforts of DSS." Id. at 440, 473 S.E.2d at 398. In the instant case, respondent failed to follow the directives of the trial court and Wake County Human Services, both of which required that respondent engage in therapy and psychological evaluations aimed at educating respondent regarding proper disciplinary methods and controlling respondent's impulsivebehaviors. Although there was evidence that respondent had satisfied some of the requirements imposed upon her, we note that "[e]xtremely limited progress is not reasonable progress" under N.C. Gen. Stat. § 7B-1111(a)(2). In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-25 (1995). In Nolen, this Court concluded that "[i]mplicit in the meaning of positive response is that not only must positive efforts be made towards improving the situation, but that these efforts are obtaining or have obtained positive results. . . . Otherwise, a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose." Id. at 693, 453 S.E.2d at 225 (citing In re Tate, 67 N.C. App. 89, 94, 312 S.E.2d 535, 539 (1984)). Thus, we conclude that the trial court's findings of fact in the instant case support its conclusion of law, and therefore we hold that the trial court did not err in terminating respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
IV.
Respondent's final argument is that the trial court erred by taking judicial notice of the case file from a previous hearing in this matter. Respondent asserts that the trial court abused its authority by failing to limit its judicial notice to those adjudicatory facts not subject to reasonable dispute. We disagree.
The transcript from the termination hearing reflects the following pertinent exchange during the direct examination of Wall:
PETITIONER: Your Honor, we ask the Court to take judicial notice of the underlying file here, 2001-J-253, specifically the orderscontained therein and the (inaudible) reports.
TRIAL COURT: The Court takes judicial notice of the existence of file 01-J-253 and its contents.
Following this exchange, petitioner questioned Wall regarding the parenting and anger management classes respondent was instructed to complete. However, the record does not reflect that respondent ever objected to the trial court's decision to take judicial notice of the underlying file. N.C.R. App. P. 10(b)(1) (2004) provides that
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.
Accordingly, we conclude that respondent has waived her right to assert this assignment of error on appeal, and thus we need not address the merits of respondent's argument.
V.
In light of the foregoing conclusions, the trial court order terminating respondent's parental rights is affirmed.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).