Opinion
No. COA04-932
Filed 15 November 2005 This case not for publication
Appeal by respondent from an order entered 2 December 2003 nunc pro tunc 7 November 2003 by Judge Franklin F. Lanier in Harnett County District Court. Heard in the Court of Appeals 26 September 2005.
E. Marshall Woodall for petitioner-appellee. Angela H. Brown for respondent-appellant.
Harnett County No. 02 J 216.
Respondent P.H., mother of the minor child I.H, appeals the order of the district court terminating her parental rights. After reviewing the record, we hold that the trial court's findings of fact are supported by competent evidence, and those findings support the trial court's conclusion of law that I.H. was a neglected child and that, therefore, grounds existed for termination of P.H.'s parental rights. Because the record contains nothing to suggest that the trial court abused its discretion in concluding that the best interests of I.H. required termination, we affirm the trial court.
Facts
I.H. was born on 22 November 2002. Two weeks later, on 5 December 2002, the Harnett County Department of Social Services("Harnett DSS") filed a petition alleging that I.H. was a neglected juvenile in that she lived in an environment injurious to her welfare based on the fact that I.H.'s father had sexually abused two of his other children, who were adjudicated abused and neglected and removed from the home. Harnett DSS further alleged that respondent P.H. did not believe the children and failed to protect them. On that same day, the court entered a non-secure custody order finding a substantial risk to the child of injury or abuse and granting Harnett DSS immediate custody of the child.
On 9 May 2003, the court adjudicated I.H. a neglected juvenile. The trial court found that at least two other children had been removed from the parents' care based on sexual abuse by the father and neglect by the mother. The court further found that the mother continued to live with and support the father in his legal proceedings regarding the abuse even when a third child was removed because the parents continued to reside together. The court found that the parents' rights to those three children were terminated on 19 February 2003 and that the parents continued nonetheless to live together and deny that any abuse and neglect occurred in the past. The court then made the ultimate finding that I.H. "lives in an environment injurious to her welfare because of the past adjudication of abuse and neglect on other children in the home and the failure of the parents to take any steps to correct those conditions which led to their removal." In the dispositional phase, the court found, based on the parents' testimony, that "[b]ecause the parents have not taken any steps to correct the conditions which led to the removal of the other children, reunification efforts with them as to [I.H.] would be futile. The parents have not indicated in any way that they neglected or abused any of their previous children." Accordingly, the court relieved Harnett DSS of reunification efforts and terminated all visitation with the parents.
On 13 June 2003, a permanency planning hearing was held. The parents did not attend the hearing. Based on its review of the child's placement status, the court concluded that the permanent plan for the child should be adoption and directed Harnett DSS to file termination proceedings within 60 days of the hearing. In accordance with the court's order, Harnett DSS filed a motion to terminate the parents' parental rights on 8 August 2003. Neither respondent nor the father filed any answer or other pleading in response to that motion.
Following an evidentiary hearing on 7 November 2003, which the parents did not attend, the trial court terminated respondent's parental rights in an order entered on 2 December 2003. The trial court found that I.H. had been adjudicated as neglected based on the removal of three other children for sexual abuse and the fact the parents "continued to deny the abuse and neglect, continued to reside with and support each other and failed to take any appropriate steps to correct the conditions which lead [sic] to the removal of the mentioned children." The court found that the father had had 12 children either removed from his care by the court or raised by his father. Nevertheless, the court found, the mother still asserted that she was "happily married to the father and would continue to live with him and support him." The court further found that the parents had not acknowledged in any way that they neglected or abused any of their previous children.
Further, the court found that following the neglect adjudication, Harnett DSS offered services to the respondent parents, formulated family services care plans, and referred the parents to Multicultural Community Development Services, but the parents failed to successfully respond to the offered services. In addition, the social worker had not seen the parents since 9 May 2003, the parents had not paid any sum for the child's support, they had not given any gifts to the child, and they had made no contact with the child. Finally, the court determined that "[t]he home of the respondent parents as indicated from the evidence constitutes an environment injurious to the welfare of the juvenile" and "[t]he failure of the parents to correct the neglectful environment for the past two and one half years is an indication that the neglect would continue in the future."
Based on these findings of fact, the trial court concluded that grounds existed to terminate respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1) (2003) (neglect), § 7B-1111(a)(3) (willful failure to pay child support), and § 7B-1111(a)(9) (the involuntary termination of parental rights as to another of a respondent's children). The court further concluded, based on its determination that I.H. was in need of stability in her life and a permanent plan of care to protect her from unsafe conditions, that it was in the best interests of the juvenile to terminate the parental rights of her parents. Respondent has appealed from this order.
The respondent father is not a party to this appeal.
Discussion
A termination of parental rights proceeding involves two separate analytical phases: an adjudicatory stage and a dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). A different standard of review applies to each step.
At the adjudicatory stage, the petitioner must prove by clear, cogent, and convincing evidence at least one of the statutory grounds for termination listed in N.C. Gen. Stat. § 7B-1111. Id. This Court's task is to review the trial court's findings of fact to determine whether they 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). Factual findings that are supported by the evidence are binding on appeal, even though there may be evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 321 (1988).
If the petitioner meets its burden of proving at least one ground for termination, the trial court proceeds to the dispositional phase and considers whether termination is in the best interests of the child. N.C. Gen. Stat. 7B-1110(a) (2003); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. This Court reviews the trial court's dispositional decision for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002).
In its order, the district court found that three separate grounds for termination existed. In order for a district court to terminate parental rights, it only needs to conclude that one ground for termination exists. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). Thus, a district court's order will be upheld so long as one of the grounds for termination found by the trial court is supported by clear, cogent, and convincing evidence. In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d 83, 87 (2003). Because we conclude that the trial court's determination that respondent neglected I.H. is supported by the findings of fact, and those findings were based upon competent evidence, we do not address the remaining grounds identified by the trial court.
Under N.C. Gen. Stat. § 7B-1111(a)(1), a court may terminate parental rights upon a finding that "[t]he parent has abused or neglected the juvenile." A child is considered neglected "if the court finds the juvenile to be . . . a neglected juvenile within the meaning of G.S. 7B-101." Id. N.C. Gen. Stat. 7B-101(15) (2003) in turn defines a neglected child 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.
N.C. Gen. Stat. § 7B-101(15) (2003).
In deciding whether a child is neglected for purposes of terminating parental rights, the dispositive question is the fitness of the parent to care for the child "at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984) (emphasis omitted). When, as here, a parent has not had custody of the child for a significant period of time prior to the termination hearing, "requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). In those circumstances, a trial court may find that grounds for termination exist upon a showing of a "history of neglect by the parent and the probability of a repetition of neglect." Id.
In this case, the trial court found both that I.H. had been adjudicated neglected in the past and that the neglect would likely continue in the future. Those findings, if supported by competent evidence, are sufficient to warrant a conclusion of neglect. Ballard, 311 N.C. at 713-14, 319 S.E.2d at 231 ("[A] prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental right son the ground of neglect."). Respondent argues, however, that the record contains insufficient evidence to support the findings of fact necessary to the trial court's conclusion that respondent neglected the child. We disagree.
Respondent has not specifically assigned error to the trial court's following findings of fact: (1) that two other children were removed from respondent's care as a result of sexual abuse by the father and neglect by the mother; (2) a third child was adjudicated neglected and removed because respondent continued to deny the abuse and neglect; (3) 12 children were removed from the father's custody either by the court or to live with their paternal grandfather; (4) respondent failed to successfully respond to the services offered to her by Harnett DSS and other agencies; (5) respondent had no contact with Harnett DSS after I.H. was adjudicated neglected on 9 May 2003; (6) respondent continued to reside with her husband and planned to continue to support him; (7) respondent has given no gifts to I.H. and made no contact with I.H.; (8) respondent did not answer the petition and did not choose to attend the hearing; and (9) respondent continuously failed over the two and one half years preceding the termination hearing to correct the neglectful environment, thus indicating that neglect would continue in the future. Findings of fact that are not challenged on appeal "are deemed supported by competent evidence" and are binding on this Court. In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
Respondent argues, however, that her inaction was based on her vow of marriage and that requiring her to choose between her marriage and retaining parental rights to I.H. is contrary to public policy. Our legislature is, however, primarily responsible for determining public policy and it has provided that "[i]n determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." N.C. Gen. Stat. § 7B-101(15). Here, the trial court found — and the record supports — that it had been adjudicated that two of respondent's children were sexually abused by the father who remains in the home. The General Assembly's definition of a "neglected" juvenile allows a trial court to consider as evidence of neglect the fact that the father subjected other children to abuse, but still lives regularly in the home. See In re Nicholson, 114 N.C. App. 91, 94, 440 S.E.2d 852, 854 (1994) (while neglect of other children "does not mandate" a conclusion of neglect, the trial judge has "discretion in determining the weight to be given such evidence").
Respondent further argues that the father "was innocent until proven guilty" and that "there was no evidence [the father] was in fact, convicted of the sexual abuse alleged." Respondent asserts without citation of authority that "DSS had no basis for termination of [respondent's] rights to I.H. unless [the father] was convicted." An adjudication had, however, already found that the father sexually abused two of the children based on child medical evaluations, in which the children disclosed acts of sexual abuse and domestic violence, and the six-year-old's diagnosis of chlamydia, a sexually transmitted disease. This adjudication constituted evidence that could be considered in determining whether I.H. was neglected.
We hold that the trial court's findings of fact are sufficient to support the court's conclusion that I.H. was neglected and this neglect was likely to continue in the future. The court was entitled to consider the fact that prior decisions had determined that two children, at age six and seven, had been sexually abused by the father and that the mother's denial that any abuse had occurred — even when it resulted in the removal of a third child — suggested that she would not protect I.H. from abuse in the future. See, e.g., In re P.M., ___ N.C. App. ___, ___, 610 S.E.2d 403, 406 (2005) (holding that failure to comply with DSS plans after four other children had already been removed from mother's custody because of sexual abuse by P.M.'s father and her failure to take responsibility for harm that befell her children as a result of her conduct supported conclusion of neglect).
In addition, a parent's failure "to provide the personal contact, love, and affection that inheres in the parental relationship is a proper consideration in determining whether neglect has occurred." In re J.L.K., 165 N.C. App. 311, 318, 598 S.E.2d 387, 392 (internal quotation marks omitted), disc. review denied, 359 N.C. 68, 604 S.E.2d 314 (2004). The court's findings that respondent had no contact with Harnett DSS for six months prior to the termination hearing, had no contact with I.H., sent no gifts or cards, paid no support, and did not even respond to the termination petition or attend the hearing all indicate a lack of personal contact, love, and affection and support the determination of neglect. Id. (noting that although respondent was incarcerated and his opportunities to show filial affection were limited, he was not excused from showing interest in his child's welfare by whatever means available). See also In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 ("Here, the evidence showed, and the trial court found, that respondent neglected the minor child's welfare, in that he never paid any child support for the minor child and did not send the minor child any gift or other type of acknowledgment on her birthday."), aff'd per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003); In re Humphrey, 156 N.C. App. 533, 540-41, 577 S.E.2d 421, 427 (2003) (finding that the district court properly terminated parental rights based upon neglect when the evidence showed that the mother failed to contact the child, failed to provide financial support for the child, and failed to provide any type of love or affection to the child).
Given the competent record evidence and the trial court's unchallenged findings of fact, we hold that the trial court did not err in concluding that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(1) to terminate respondent's parental rights to I.H. We, therefore, do not address respondent's arguments regarding N.C. Gen. Stat. § 7B-1111(a)(3). "A finding of any one of the enumerated termination grounds is sufficient to support the order of the trial court." Yocum, 158 N.C. App. at 204, 580 S.E.2d at 403-04.
We observe that respondent did not challenge the trial court's conclusion that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(9) and that we could affirm on that ground alone. That provision allows termination if "[t]he parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home." The trial court, however, never made any findings of fact that the parental rights were terminated as to the other three children even though the record suggests that they were.
Respondent next argues that the trial court abused its discretion in concluding that it was in I.H.'s best interests to terminate respondent's parental rights. In making this determination, "[e]vidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage." Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910 (applying § 1110(a)'s predecessor statute, N.C. Gen. Stat. § 7A-289.31(a) (1998)). In considering evidence relevant to the dispositional stage, "[t]he children's best interest are paramount, not the rights of the parent." In re Smith, 56 N.C. App. 142, 150, 287 S.E.2d 440, 445, cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982).
Respondent reiterates her argument that "[i]n the absence of real evidence that [her husband] in fact molested one of his daughters, the termination of [respondent's] rights was rash and groundless. Public policy does not promote destruction of the marital bond." We have addressed those arguments above. In light of the fact that respondent had no contact with Harnett DSS following the neglect adjudication, never manifested her love and affection for I.H., did not respond to the termination petition, and did not feel compelled to attend the termination hearing, we cannot conclude that the trial court's decision to terminate respondent's parental rights was manifestly unreasonable. See State v. Shoemaker, 334 N.C. 252, 261, 432 S.E.2d 314, 319 (1993) (holding that for a trial court's decision to be an abuse of discretion, it must have been "manifestly unsupported by reason"). Accordingly, the order terminating respondent's parental rights is affirmed.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).