Opinion
No. COA09-1570
Filed 20 April 2010 This case not for publication
Appeal by respondent-father from termination of parental rights orders entered 10 July 2009 by Judge J. Carlton Cole in Currituck County District Court. Heard in the Court of Appeals 29 March 2010.
Richard E. Jester, for respondent-appellant father. Courtney S. Hull, for petitioner-appellee Currituck County Department of Social Services. Pamela Newell Williams, for guardian ad litem.
Currituck County No. 06 J 8.
Respondent-father appeals from an order terminating his parental rights to Z.H. We affirm.
This matter is before this Court for a second time. The full facts of this case are set forth in In re G.V., C.A., Z.H., ___ N.C. App. ___, 674 S.E.2d 479, 2009 WL 921271 (2009) (unpublished), and will not be repeated herein.
G.V. and C.A. are siblings of Z.H. All three children have the same biological mother, but different biological fathers. Respondent-father is the biological father of only Z.H.
I. Procedural History
On 11 January 2006, the Currituck Department of Social Services filed juvenile petitions alleging that Z.H. and his two siblings were abused, neglected, and dependent. DSS obtained non-secure custody of all three children, and on 6 November 2006, the trial court entered an order adjudicating the children neglected and dependent juveniles. DSS subsequently filed a petition to terminate the respondent-father's and the mother's parental rights as to the three juveniles. On 25 July 2008, the trial court entered orders determining (1) that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate the parents' parental rights, and (2) that termination of their parental rights was in the best interests of the juveniles. Respondent-father and the mother appealed.
N.C. Gen. Stat. § 7B-1111(a)(1) (2009) provides that "[t]he court may terminate the parental rights upon a finding [that] [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 G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101."
On appeal, this Court vacated the orders terminating parental rights on the grounds that the trial court applied an incorrect legal standard, the best interests standard, during the adjudication stage of the proceeding. This Court ordered that, upon remand,
the trial court must view the evidence and make findings of fact in light of the correct standard. In cases, such as this one, in which the parents have not had custody of the children, the trial court may conclude that the ground of neglect exists "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] parents." In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000). The best interests of the child plays no role in determining whether DSS has made this showing. We leave to the discretion of the trial court whether, given the passage of time, to hear additional evidence on the pertinent issues.
G.V., ___ N.C. App. ___, 674 S.E.2d 479, 2009 WL 921271, at *4.
On remand, the trial court heard the matter on 12 June 2009. The trial court again concluded that grounds existed to terminate respondent-father's and the mother's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). The trial court further found that it was in the best interests of the juveniles to terminate respondent-father's and the mother's parental rights. Accordingly, on 10 July 2009 the trial court entered written orders terminating respondent-father's and the mother's parental rights. Respondent-father appeals.
II. Discussion A. Cessation of Reunification Efforts
Respondent-father first argues that the trial court erred in finding of fact 37 of the dispositional portion of its termination of parental rights order. In the finding, the trial court stated that DSS was relieved of reasonable efforts toward reunification of the family unit on 10 August 2006. Respondent-father asserts that DSS did not comply with the "reasonable efforts" requirement of N.C. Gen. Stat. § 7B-507. Specifically, respondent-father notes that DSS took only 27 days following entry of the adjudicatory and dispositional orders in this case prior to filing its petition to terminate his parental rights. However, respondent-father failed to preserve the issue for appellate review, and thus this issue is not properly before us.
"A termination of parental rights proceeding is a two-stage process in which there is (1) an adjudication stage and (2) a disposition stage. In the adjudication stage, the petitioner must prove by clear, cogent, and convincing evidence the existence of one of the statutory grounds set out for termination of parental rights in N.C. Gen. Stat. § 7B-1111. In the disposition stage, the court exercises its discretion to decide whether terminating the parent's rights is in the child's best interests. G.V., ___ N.C. App. ___, 674 S.E.2d 479, 2009 WL 921271, at *2 (internal citations and quotation marks omitted).
N.C. Gen. Stat. § 7B-507(c) provides that
[a]t any hearing at which the court finds and orders that reasonable efforts to reunify a family shall cease, the affected parent . . . may give notice to preserve the parent['s] . . . right to appeal the finding and order in accordance with G.S. 7B-1001(a)(5). Notice may be given in open court or in writing within 10 days of the hearing at which the court orders the efforts to reunify the family to cease.
N.C. Gen. Stat. § 7B-507(c) (2009). N.C. Gen. Stat. § 7B-1001(a)(5) further provides that our Court
shall review the order to cease reunification together with an appeal of the termination of parental rights order if all of the following apply:
1. A motion or petition to terminate the parent's rights is heard and granted.
2. The order terminating parental rights is appealed in a proper and timely manner.
3. The order to cease reunification is assigned as an error in the record on appeal of the termination of parental rights.
N.C. Gen. Stat. § 7B-1001(a)(5)a. (2009).
In a disposition order entered 6 November 2006, nunc pro tunc 10 August 2006, the trial court relieved DSS of reasonable efforts to reunify Z.H. and his siblings with their parents. Respondent-father has not assigned error to the trial court's order to cease reunification, nor did respondent-father preserve his right to appeal from this order through notice in open court or in writing within 10 days of the hearing at which the trial court ordered the cessation of reasonable efforts. Accordingly, respondent-father has failed to comply with the statutory requirements for appealing the order ceasing reunification efforts. Therefore, respondent-father's argument is not properly before us. The assignment of error upon which this argument is based is dismissed.
By contrast, the mother, who is not a party to this appeal, filed a written objection to the trial court's order the day after it was entered.
B. Termination of Respondent-Father's Parental Rights
Respondent-father next argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111 to terminate his parental rights. We disagree.
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). "The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law." In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005).
In this case, the trial court concluded that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate respondent-father's parental rights. Section 7B-1111(a)(1) provides that the court may terminate parental rights upon a finding that "[t]he parent has abused or neglected the juvenile." A "[n]eglected juvenile" is defined by N.C. Gen. Stat. § 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.
N.C. Gen. Stat. § 7B-101(15) (2009).
Generally, "[a] finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). However, "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). Thus, 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 or] her parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
In the case sub judice, Z.H. was adjudicated neglected on 6 November 2006, nunc pro tunc 17 July 2006, and respondent-father stipulated to past neglect at the termination hearing. Accordingly, the only issue remaining at the adjudication phase of the termination hearing was whether there was a probability that respondent-father would repeat his prior neglect of Z.H., were the child returned to his custody. Among the reasons for the juvenile's removal from respondent-father's and the mother's care were: (1) a lack of supervision; (2) the respondent-mother's continuing drug abuse, as well as her mental illness; and (3) domestic violence. In the adjudication order on the petition to terminate respondent-father's parental rights, the trial court found that respondent-father
expressed concerns with regard to [the mother's] ability to parent the children as follows: [the mother's] substance abuse was a big issue with him, he tried to keep her away from drugs and described the struggles he had with her; [the mother] sold marijuana out of the house with the children there and she smoked marijuana with the children in the home; [the mother] has bipolar disorder, that she had unpredictable behavior, that she was not seeking treatment and she used the illegal drugs for it instead of prescriptions; there was domestic violence in the home, as there were several incidences where [the mother] attacked him and some of those happened while the children were in the home; [the mother's] extensive criminal background as there had not been six months in her life that she had not been in trouble; [respondent-father] did not trust [the mother] and he would only feel comfortable taking Z.H. back if he was in daycare full time and not left in [the mother's] care[.]
The trial court also found that respondent-father had "admitted" that the mother's "drug use in the past is what led to all of their problems, including domestic violence." At the time of the hearing, the mother had relapsed in her use of drugs. Yet, the respondent-father and the mother continued to live and work together.
Respondent-father does not argue that there was insufficient evidence to support the above findings of fact. Therefore, these findings of fact are deemed to be supported by sufficient evidence and are binding on appeal. N.C. R. App. P. 28(b)(6); see also In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005) (concluding respondent had abandoned factual assignments of error when she "failed to specifically argue in her brief that they were unsupported by evidence"). Respondent-father instead argues that these findings reflect a past state of affairs, or are only relevant to the mother, and not himself. We disagree.
We conclude the findings demonstrate that, if Z.H. were returned to respondent-father's care, Z.H. would reside in a residence with a mother who had relapsed into drug abuse, and with parents who engaged in domestic violence, particularly when the mother was abusing drugs. This would mirror the situation that existed when the juvenile was removed from the home. Thus, the findings support the trial court's conclusion that "it is probable that a repetition of neglect [of Z.H.] would occur if [Z.H. was] returned to the care and custody of [respondent-father]."
Where a prior adjudication of neglect is considered by the trial court, "[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect." Ballard, 311 N.C. at 715, 319 S.E.2d at 232. In this case, the trial court found that, upon remand, respondent-father was given the opportunity to present evidence with regard to a change in condition, did not offer any evidence regarding change in condition, and had not made any progress as to a change in condition. Respondent-father argues that the trial court's findings improperly shifted the burden of proof, and that DSS was required to demonstrate that the "situation was the same." We do not agree.
We conclude that DSS sustained its burden of demonstrating neglect, as well as the probability of repetition of neglect. The burden then shifted to respondent-father to demonstrate changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect. Therefore, we hold the trial court properly concluded that there was a probability of repetition of neglect if Z.H. were returned to respondent-father's care. Accordingly, sufficient grounds existed for termination of respondent-father's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1).
C. Bifurcated Proceeding
Respondent-father lastly argues that the trial court erred by failing to hold a bifurcated proceeding. Respondent-father claims that the court improperly considered "far too much best interest evidence" and "heard almost exclusively best interest evidence" during the adjudicatory phase of the hearing. Again, we do not agree.
At the 2008 termination hearing, Dr. Katherine Leslie testified during the adjudicatory phase of the hearing. Respondent-father characterizes Dr. Leslie's testimony as being "clearly related to best interest and disposition." We vacated and remanded the prior termination order because of the trial court's improper inclusion in its order of language indicating it relied upon the best interests of the children in deciding whether grounds existed to terminate the respondent-parents' parental rights. G.V., ___ N.C. App. ___, 674 S.E.2d 479, 2009 WL 921271, at *4. Respondent-father argues that while the trial court may have removed the improper language from the termination order entered after rehearing, it could not remove Dr. Leslie's testimony from its reasoning. Respondent-father further argues that had the trial court not relied so heavily on Dr. Leslie's testimony during the adjudicatory phase, it would have reached a different result. We are not persuaded by respondent-father's contention.
Proceedings to terminate parental rights occur in two phases: (1) the adjudication phase, and (2) the disposition phase. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). "[I]n the adjudication stage, the petitioner must prove by clear, cogent, and convincing evidence the existence of one or more of the grounds for termination[.]" In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984) (emphasis added); see also N.C. Gen. Stat. § 7B-1109(f) (2009) ("all findings of fact shall be based on clear, cogent, and convincing evidence"). In the disposition phase, "[t]he trial court has discretion, if it finds that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the child's best interests." In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
"[A] trial court may combine the N.C.G.S. § 7B-1109 adjudicatory stage and the N.C.G.S. § 7B-1110 dispositional stage into one hearing, so long as the trial court applies the correct evidentiary standard at each stage and the trial court's orders associated with the termination action contain the appropriate standard-of-proof recitations[.]" In re R.B.B., 187 N.C. App. 639, 643-44, 654 S.E.2d 514, 518 (2007) (emphasis added). As stated previously herein, the error which we corrected in the first appeal was the trial court's application of the wrong evidentiary standard in the adjudication phase. Respondent-father does not contend that the trial court repeated this error upon remand.
Moreover, even if the trial court erroneously admitted best interests evidence during the adjudicatory phase of the hearing, there is a presumption that the trial judge will consider only competent evidence and will disregard any incompetent evidence. In re Morales, 159 N.C. App. 429, 433, 583 S.E.2d 692, 694 (2003). This Court has stated:
The longstanding rule is that there is a presumption in favor of regularity and correctness in proceedings in the trial court, with the burden on the appellant to show error. Unless the record reveals otherwise, we presume that judicial acts and duties have been duly and regularly performed.
In re A.R.H.B., 186 N.C. App. 211, 219, 651 S.E.2d 247, 253 (2007) (internal citations and quotation marks omitted). Although respondent-father contends that the trial court's reasoning was tainted by Dr. Leslie's testimony during the adjudicatory phase, there is nothing in the record to overcome the presumption that the trial court's "acts and duties" were "duly and regularly performed." Id. Accordingly, the order of the trial court is
AFFIRMED.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).