Opinion
No. COA04-223
Filed 5 April 2005 This case not for publication
Respondent appeals from orders entered 8 August 2003 by Judge Michael A. Sabiston in Randolph County District Court. Heard in the Court of Appeals 30 November 2004.
Robert T. Newman, Sr., for Randolph County Department of Social Services, petitioner-appellee. Mercedes O. Chut, for respondent-appellant.
Randolph County Nos. 02 J 85, 02 J 86.
Respondent mother appeals the trial court's order terminating parental rights of her minor children, B.A.A. and P.J.A. For the reasons set forth below, we affirm the decision of the trial court.
In February of 2000, the Randolph County Department of Social Services (DSS) received a referral in reference to B.A.A., a two-month-old with fourteen or fifteen broken bones in his arm. When Respondent initially took B.A.A. to the hospital, she said that his injury occurred when she held him up with a tight grip and tried to pull a sleeve off of his arm. DSS interviewed Respondent in the company of an adult male whom she identified as her cousin. DSS formulated a protection plan which allowed Respondent's "cousin" to supervise contact between B.A.A. and Respondent. DSS subsequently discovered that Respondent's "cousin" was actually Respondent's husband and B.A.A.'s father, who was ultimately arrested and charged with two counts of felony child abuse for B.A.A.'s injuries. Respondent later told DSS that she falsely portrayed him as her cousin because he told her that he had broken B.A.A.'s arm by accident. P.J.A., B.A.A.'s older sibling, resided in the same house with her parents and B.A.A. at the time of B.A.A.'s abuse.
On 26 February 2000, DSS filed a petition alleging B.A.A. to be an abused, neglected, and dependent juvenile, and P.J.A. to be a neglected dependent juvenile. The court granted DSS non-secure custody of the children and they were both placed in foster care. On 17 August 2000, the trial court adjudicated the children as abused and neglected juveniles and ordered that they remain in the legal custody of DSS. The court relieved DSS of reunification efforts by order on 14 September 2001. DSS filed a petition for termination of parental rights (TPR) on 4 April 2002. The court commenced a TPR hearing on 8 August 2002 and took testimony on several additional dates through 28 January 2003. The children's father did not appear at the TPR hearing or contest termination of his parental rights.
At the TPR hearing, the court heard testimony from many witnesses. DSS workers testified that although they believed Respondent loves her children, she did not comply with court orders and they witnessed inappropriate conduct by Respondent on several occasions. The evidence tends to show that in spite of court orders to the contrary, Respondent did not supply documents regarding any disability she might have, did not maintain stable housing, did not maintain employment, and interrupted her mental health treatment and medication. DSS workers witnessed Respondent's inappropriate conduct, including bringing intoxicated friends to a visit with the children, threatening DSS workers and the foster parents with violence, yelling and belligerent behavior, criticizing the foster parents in front of the children, yelling at and criticizing the children, and coming to visit her children high on pain pills. Also, although Respondent attended most visits with her children, she missed six out of the last seven visits prior to the TPR hearing without explanation. DSS workers also expressed concern that Respondent did not appropriately distance herself from her husband, refusing to believe that he had hurt B.A.A. At the time of trial, Respondent had divorced her husband and she testified that she no longer had contact with him.
Regarding Respondent's mental health, two psychologists and a psychiatrist testified. The evidence shows that Respondent was diagnosed with borderline personality disorder and depressive disorder. Dr. Sheaffer, a psychologist who evaluated Respondent and diagnosed her with borderline personality disorder testified that Respondent:
was marginal in her functional capacity, that she would appear to have difficulties in maintaining herself in day to day functioning, that given the demands of two young children, I had grave concerns about her capacity to parent effectively and to appropriately meet the children's needs . . . my concern was added to by [her] ambivalence regarding the apparent physical abuse that caused [B.A.A.'s] injuries . . . [she] appeared to cling to the possibility that the other injuries . . . were somehow related to a very rare bone disorder.
Dr. Sheaffer did not conclude that Respondent could not parent but opined that she would likely require and benefit from structured support. Respondent's therapist, psychologist Dr. Hansboro, testified that her "emotional behavior and anger management" issues had improved during the two years he had treated her. However, he reported that she missed sessions for eight months in 2001, against his recommendation. Dr. Graham, a psychiatrist, testified that although Respondent was still seeing him at the time of the hearing, he had not seen her face-to-face since 14 February 2002 and had not prescribed medication for her since May of 2002. The evidence at the hearing regarding whether Respondent was still taking medication for her mental health issues conflicts.
The testimony at the TPR hearing also reveals that Respondent reported numerous physical ailments, which were not corroborated. Respondent reported to various DSS workers that she had leukemia, kidney failure, and a rare bone disorder, but failed to provide medical records as ordered by the court. A court-ordered medical exam revealed only diabetes and asthma. Respondent testified that she received Social Security disability, but never provided proof of this as requested by the court.
Respondent makes multiple assignments of error. First, she contends that the trial court erred in concluding there was sufficient competent evidence to support the statutory grounds to terminate her parental rights. The petitioner must prove neglect by clear, cogent, and convincing evidence in order to terminate parental rights on these grounds. In re Parker, 90 N.C. App. 423, 425, 368 S.E.2d 879, 881 (1988). However, when appellant takes no exceptions to individual findings of fact, we presume that the trial court's findings of facts are supported by competent evidence and these findings become binding on appeal. Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982); see also, In Re TLB, ___ N.C. App. ___, 605 S.E.2d 249, 251 (2004). Here, because Respondent failed to except to any of the trial court's findings of fact, we accept the findings of fact as binding. Thus, we must determine only whether the unchallenged findings of fact support the court's legal conclusion that statutory grounds existed to terminate Respondent's parental rights.
The court concluded that the evidence established three statutory grounds to terminate Respondent's parental rights: N.C. Gen. Stat. §§ 7B-1111(a)(1),(2), and (3) (2002). In three separate assignments of error, Respondent asserts that the court lacked competent evidence to support termination under each of these statutory grounds. N.C. Gen. Stat. § 7B-1111 (a) (1) provides grounds to terminate parental rights where:
The 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.
Id. N.C. Gen. Stat. § 7B-101 (15) (2002) defines a "neglected juvenile," in relevant part, 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.
Id. (emphasis added).
Here, the court made several findings of fact which support its conclusion that grounds existed to terminate Respondent's parental rights per N.C. Gen. Stat. § 7B-1111 (a) (1). The court found that Respondent suffers from borderline personality disorder, which impairs her ability to parent, and that she quit attending therapy and taking her medication, even though she had been ordered by the court to participate in therapy and follow the recommendations of her therapist. Respondent also failed to follow the court's earlier order that she maintain stable employment and provide information regarding any disability she suffered. The court also found that Respondent made repeated threats to DSS workers and the foster parents and that she behaved inappropriately during visits with the children. Respondent also missed numerous visits with her children.
This Court considered similar facts in In re Brim. 139 N.C. App. 733, 535 S.E.2d 367 (2000). The child in Brim was initially adjudicated neglected due to a spiral fracture in his arm. Id. at 734-35, 535 S.E.2d at 368. On appeal, the Court held that the parental rights of the mother could be terminated where she suffered from borderline personality disorder, demonstrated a continuing inability to interact properly with her child and the child's caregivers, and failed to complete terms of the court's earlier orders which were "specifically designed to alleviate the conditions which brought the child into foster care." Id. at 738, 535 S.E.2d at 370. The Court noted the trial court's findings of fact that the mother harassed the child's caregivers, that she failed to demonstrate an ability to control her anger, that she failed to maintain employment or demonstrate financial responsibility, and that she failed to visit with the child on the regular visitation schedule. Id. at 742-43, 535 S.E.2d at 372. These findings established sufficient grounds to terminate the mother's parental rights for neglect. Id. at 743, 535 S.E.3d at 373. We conclude that here, as in Brim, the trial court's findings of fact support the conclusion that grounds existed to terminate Respondent's parental rights for neglect.
Respondent argues that there were insufficient indicia of abuse or neglect existing at the time of trial. The court may consider a prior adjudication of abuse or neglect in making its determination, but such prior adjudication alone will not suffice where the natural parents have not had custody for a significant period before the TPR hearing. In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984). The Court must consider evidence of changed circumstances and the probability of a repetition of abuse or neglect. In re Alleghany Co. v. Reber, 75 N.C. App. 467, 331 S.E.2d 256, aff'd, 315 N.C. 382, 337 S.E.2d 851 (1985). The court must consider the fitness of the parent at the time of the termination proceeding. Ballard at 715, 319 S.E.2d at 232. Here, the court made several findings regarding Respondent's ongoing or current problems, and found specifically:
Since the prior adjudication of neglect, the Respondent Parents; (sic) conduct has been such as to demonstrate that the conditions which led to the prior adjudication are still present. There is a strong probability that there would be a repetition of that neglect.
In her next two assignments of error, Respondent contends that the trial court lacked sufficient competent evidence to establish grounds for termination of her parental rights under N.C. Gen. Stat. §§ 7B-1111(a)(2) and (3). We note that Respondent again fails to except to any findings of fact in these assignments of error. However, because we conclude that the trial court properly terminated Respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1), we need not address these assignments of error: "[t]he finding of any one of the grounds is sufficient to order termination." Owenby v. Young, 357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003).
Respondent also argues that the trial court erred in admitting her entire criminal record into evidence, as some of the items on that record did not meet the standards of Rule 609 of the North Carolina Rules of Evidence. N.C. Gen. Stat. § 8C-1, Rule 609 (2002). We reject this assignment of error. Although Respondent initially objected to the introduction of this evidence, the judge later set out what he found in the record, and other witnesses testified regarding respondent's record without further objection. The admission of evidence without objection waives prior or later objection to the admission of the same or similar evidence. State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). Furthermore, Rule 609 does not apply here, as this rule applies to the admission of past crimes for impeachment purposes and the record came in here as part of petitioner's substantive case-in-chief, not to attack Respondent's credibility. N.C. Gen. Stat. § 8C-1, Rule 609. Finally, we conclude that even if the admission of her record was error, Respondent fails to show prejudice. An error "is not prejudicial unless `there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.'" State v. Barden, 356 N.C. 316, 381, 572 S.E.2d 108, 149 (2002). Here, in light of Respondent's failure to follow through on court orders regarding employment and mental health treatment, as well as missed visits and repeated inappropriate behavior towards her children and others, we conclude that the court would not have reached a different result but for the admission of her criminal record.
Respondent also contends that the trial court erred in admitting inadmissible hearsay evidence. Over objection, Ms. Toni Welch, Social Work Supervisor, testified as to her conversations with a nurse who treated B.A.A. at the hospital, who told her Respondent acted suspiciously. Similarly, Respondent's psychiatrist testified to a conversation he had with a pharmacist which led him to become suspicious that Respondent misused prescription drugs. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C.G.S. § 8C-1, Rule 801(c) (2002). However, "when evidence of . . . statements by one other than the witness testifying is offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible." State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990). Such non-hear say statements include those proferred to explain subsequent conduct of the person to whom the statement was made. State v. Morston, 336 N.C. 381, 399, 445 S.E.2d 1, 11 (1994).
Here, Ms. Welch's testimony regarding what the nurse told her serves to explain Ms. Welch's subsequent investigation of Respondent. Likewise, Dr. Graham's testimony regarding what the pharmacist told him came in on cross-examination regarding why he believed Respondent misused drugs and then stopped giving her prescriptions. Furthermore, we conclude that even if the trial court had erred in admitting these statements, any error was harmless. Given the other evidence before the trial court, we cannot say that the court would have reached a different result without this evidence. Thus, we overrule this assignment of error.
Respondent also argues that the trial court erred in concluding that the best interests of the children supported termination of her parental rights. A termination of parental rights proceeding consists of two phases. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, the petitioner must prove by clear, cogent, and convincing evidence that at least one statutory ground exists pursuant to N.C. Gen. Stat. § 7B-1111 (2002). Id. If petitioner proves at least one ground for termination, the trial court proceeds to the dispositional phase, where it considers whether, in its discretion, termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2002); Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. We review the trial court's decision to terminate parental rights for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). Rulings based on a trial court's discretion will only be reversed upon "a showing of manifest abuse of that discretion." In re Black, 76 N.C. App. 106, 110, 332 S.E.2d 85, 87 (1985). Here, we have already concluded that the trial court's findings of fact supported its conclusion that statutory grounds for termination existed. Similarly, we conclude that, based on the evidence before the trial court, it did not abuse its discretion in terminating Respondent's parental rights.
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).