Opinion
No. 07-1056.
Filed January 15, 2008.
Cumberland County No. 04 JT 522.
Appeal by respondent-mother from an order entered 8 June 2007 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 10 December 2007.
Elizabeth Kennedy-Gurnee and Nikki Reason Walker for Cumberland County Department of Social Services, petitioner-appellee. Hunton Williams, LLP, by Eric M.D. Zion, for Guardian ad Litem. Thomas B. Kakassy for respondent-mother-appellant.
T.L.M., (respondent-mother), appeals from an order entered 8 June 2007 terminating parental rights to her son, J.M., on the grounds of neglect, willful abandonment and failure to pay a reasonable portion of the cost of care. Respondent-father, C.O.M., is a not a party to this appeal. For the reasons given below, we affirm the order of the trial court.
Initials have been used throughout to protect the identity of the juvenile.
Facts
Respondent-mother and respondent-father are married and are the parents of C.M. and J.M. Both respondent-mother and respondent-father are hearing impaired. Respondent-mother is able to effectively communicate by the use of a telephone with or without TTY technology, lip-reading, sign language, interpreters, and writing.
On 13 October 2002, when C.M. was approximately two months old, he was seriously and permanently injured by respondent-father. During a domestic violence incident, respondent-father squeezed C.M.'s ribs and head, and shook him violently. Respondent-mother was present and observed respondent-father's acts of violence. Respondent-mother also observed blood coming from C.M.'s mouth but did not seek medical attention. Respondent-mother testified that she could not seek medical attention for C.M. because respondent-father had disabled the TTY device on the telephone and locked her in the home to prevent her from going to find help. On 14 October 2002, respondent-mother called the local WIC office to make an appointment and called a cab to transport her to the WIC office. When she arrived at the office, the WIC personnel noticed that C.M. was in medical distress and immediately sent C.M. for medical attention. As a result of the incident, C.M. sustained serious and devastating head injuries. C.M. resides in an assisted living facility and is unable to walk, talk, dress or care for himself.
After C.M.'s injuries, respondent-mother continued to reside with respondent-father. Respondent-father was subsequently charged with felony child abuse. Respondent-mother was charged with and pled guilty to accessory after the fact to felony child abuse. She was sentenced to 31 to 47 months imprisonment followed by 60 months of supervised probation. As a specific condition of respondent-mother's probation, she was prohibited from residing with any minor child, including her own. Respondent-father pled guilty to felony child abuse on 13 August 2004 and received an active sentence of 32 to 48 months.
Prior to his guilty plea, respondent-father was released from jail in or about November of 2003 on pre-trial release. During this time, respondent-father resided with respondent-mother and together they conceived J.M. At the time respondent-mother entered her plea of guilty, she was pregnant with J.M. Respondent-mother subsequently gave birth to J.M. in August of 2004 and on 31 August 2004, DSS obtained custody of J.M.
Respondent-father was released from prison on 29 June 2006. After his release, respondent-father resided with respondent-mother. Again, respondent-father committed acts of domestic violence upon respondent-mother. At the suggestion of the probation officer they shared, respondent-mother and respondent-father obtained separate residences; however, respondent-father continued to sleep overnight at respondent-mother's residence at least three times per week.
Respondent-mother receives the sum of $623.00 per month in social security disability payments. Also, from January through August 2005, respondent-mother was employed at DSC Services in Fayetteville, and earned $147.00 every two weeks. Respondent-mother voluntarily quit her job at DSC Services. Respondent-mother has not been able to locate other employment. She has not paid any money toward the cost of care for J.M.
On 1 February 2005, respondent-mother entered into an out-of-home family services agreement. The agreement required her to complete a parenting assessment, psychological evaluation, domestic violence counseling, and find and maintain stable living arrangements. Respondent-mother failed to complete both the domestic violence counseling and the psychological evaluation, neither did she attend parenting classes. Also, respondent-mother changed residences at least four times during the twelve months next preceding the filing of the petition to terminate her parental rights. Respondent-mother has not had substantial contact with J.M. nor has she sent any birthday cards, letters or gifts of money to J.M.
Procedural History
On 31 August 2004, petitioner Cumberland County Department of Social Services (DSS) obtained nonsecure custody of J.M. J.M. was placed in the care of N.B., respondent-mother's cousin, and has remained in her care since that time. On 15 February 2005, J.M. was adjudicated dependent. On 28 July 2006, DSS filed a petition to terminate the parental rights of respondent-mother and respondent-father to J.M. The hearing to terminate parental rights was continued from 4 December 2006 to 19 January 2007, from 19 January 2007 to 12 February 2007, and again from 12 February 2007 to 10 April 2007. The hearing to terminate parental rights was held during a Special Session of Juvenile Court on 30 April 2007. By order entered 8 June 2007, respondent-mother's parental rights to J.M. were terminated. Respondent-mother appeals.
Respondent-mother contends the trial court erred by (I) concluding J.M. was neglected; (II) concluding she wilfully abandoned J.M; (III) concluding she failed to pay a reasonable portion of the cost of J.M.'s care; and (IV) failing to make conclusions of law regarding J.M.'s best interests. For the reasons given, we affirm the order of the trial court.
I
Respondent-mother first contends the trial court erred in concluding she neglected J.M. within the meaning of N.C. Gen. Stat. § 7B-101(15) (2005). We disagree.
Whether a child is a neglected juvenile as defined in N.C.G.S. § 7B-101 (15) is a conclusion of law. In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675-76 (1997). Conclusions of law in a termination of parental rights proceeding are reviewable de novo on appeal. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006). We review the conclusions of law to determine whether they are supported by the findings of fact. In re J.G.B., 177 N.C. App. 375, 379, 628 S.E.2d 450, 454 (2006).
A neglected juvenile is defined by N.C.G.S. § 7B-101(15) as:
[a] juvenile 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; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
Id. Respondent-mother contends that the foregoing definition does not apply to the present case because J.M. does not reside, and has never resided, in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly resides in that home. She also argues there was no finding of neglect at the time of the termination hearing or a likelihood of a repetition of neglect.
To adjudicate a juvenile as neglected, the court must find some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence of the parent's failure to provide proper care, supervision, or discipline. In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993). In making this determination, the court has the statutory authority to consider evidence of abuse of another child in the home. In re Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994). The weight to be given such evidence in determining whether or not the child is neglected is within the discretion of the trial judge. Id.
In a case such as the one here, where the juvenile at issue has never resided in the parent's or abuser's home, "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). In McLean, we upheld the trial court's determination that an infant juvenile was neglected even though the child never resided in a home where an older sibling died as a result of abuse by the juvenile's father.
The findings in the case sub judice show that respondent-mother failed to obtain help for C.M. after he was injured by his father prior to 13 October 2002. She failed to seek immediate medical attention for C.M. when he was severely shaken by his father. Despite being a victim of domestic violence by respondent-father both before and after his incarceration, and having witnessed him inflict serious, permanent and debilitating injury to another child, respondent-mother continues to remain married to respondent-father and to subject herself to infliction of further domestic violence by allowing him to sleep regularly at her residence. As further indication that respondent-mother fails to appreciate the seriousness of domestic violence and the risks of harm to herself and her child, respondent-mother failed to complete domestic violence counseling. Given the foregoing, there is a substantial risk of harm to J.M. if he resides with respondent-mother. We accordingly hold the findings of fact support the conclusion of law that respondent-mother has neglected J.M.
II III
Respondent-mother also assigns as error the court's conclusions of law and findings relative to the existence of two other grounds to terminate parental rights. Having upheld the determination of one ground to terminate respondent-mother's parental rights, we need not consider the other two grounds. In re B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
IV
Respondent-mother's final contention is that the court erred in failing to make any conclusions of law as to the best interests of the child and in ordering the termination of respondent-mother's parental rights. We disagree.
The court's order shows that after finding the existence of grounds to terminate respondent-mother's parental rights, the court considered the best interests of the juvenile. The court used the factors listed in N.C. Gen. Stat. § 7B-1110 and made findings of fact as to these factors. Specifically, the court found that the child is presently two years old; that the likelihood of adoption is great as the current placement providers are prepared to adopt the child; that termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; that there is very little bond between the child and respondent-mother; that there is a strong bond between J.M. and the prospective adoptive parents, who have met his needs and provided him with a safe, stable and loving environment from the time he was released from the hospital as an infant; and that since respondent-mother and the prospective adoptive mother are cousins, it is anticipated that J.M. will be aware of respondent-mother and have some contact with her at gatherings of the extended family; and that the plan of adoption, rather than guardianship, is in the child's best interests. The court incorporated the foregoing findings into its "dispositional findings." Implicit in these findings is a conclusion that termination of parental rights is in the best interests of the juvenile.
Based on the foregoing, we affirm the order terminating respondent-mother's parental rights.
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).