Opinion
No. COA12–1419.
2013-05-21
In the Matter of K.A.T.B.
Lauren Vaughan, for petitioner-appellee Catawba County Department of Social Services. Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.
Appeal by respondent from orders entered 13 and 31 July 2012 by Judge C. Thomas Edwards in Catawba County District Court. Heard in the Court of Appeals 17 April 2013. Lauren Vaughan, for petitioner-appellee Catawba County Department of Social Services. Assistant Appellate Defender J. Lee Gilliam, for respondent-appellant mother.
Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
DILLON, Judge.
Respondent appeals from orders entered 13 and 31 July 2012 terminating her parental rights to K.A.T.B. (the juvenile). We affirm.
The Catawba County Department of Social Services (DSS) filed a juvenile petition on 11 May 2006 alleging that the juvenile was neglected and abused. The trial court adjudicated the juvenile neglected and gave custody of the juvenile to DSS in an order entered on 25 September 2006. The juvenile was returned to her parents' custody on 24 October 2006. In a subsequent order, the trial court waived further review of the case, but retained jurisdiction over the matter and noted that it could be reviewed upon motion by any party.
On 31 December 2009, DSS filed a motion requesting review of the juvenile's custody, placement, visitation, and safety. Following a hearing, the trial court entered an order on 4 March 2010 returning custody of the juvenile to DSS.
On 18 May 2011, DSS filed a motion in the cause to terminate the parental rights of respondent based on the following grounds: (1) neglect; (2) willfully leaving the juvenile in foster care for more than twelve months without showing reasonable progress to correct the conditions that led to removal; (3) willful failure to pay a reasonable portion of the cost of care for the juvenile; and (4) dependency. SeeN.C. Gen.Stat. § 7B–1111 (a)(1)-(3), (6) (2011). Following a hearing, the trial court entered an order on 13 July 2012, concluding that grounds existed to terminate respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111 (a)(1)-(3). In a separate dispositional order entered on 31 July 2012, the trial court also concluded that it was in the juvenile's best interest to terminate respondent's parental rights. Respondent gave timely notice of appeal. The trial court also terminated the parental rights of the juvenile's father in its 31 July 2012 order, but he does not appeal.
Respondent's counsel has filed a no-merit brief on respondent's behalf in which counsel states that after “a conscientious and thorough review of the record on appeal ... he concludes that the record contains no issue of merit on which to base an argument for relief and that the appeal would be frivolous.” Pursuant to N.C.R.App. P. 3.1(d), counsel requests that this Court conduct an independent examination of the case. Counsel has also shown to the satisfaction of this Court that he has advised respondent of her right to file written arguments with this Court, and counsel has provided her with the documents necessary to do so. Respondent has not filed her own written arguments.
Counsel directs our attention to the following potential issues: (1) whether the trial court erred in its 4 March 2010 review order by granting custody of the juvenile to DSS in the absence of a proper adjudicatory hearing; (2) whether respondent was prejudiced by the delay in commencing and completing the termination of parental rights hearing; (3) whether the trial court's conclusion that grounds existed to terminate respondent's parental rights was based on adequate findings supported by clear and convincing evidence; and (4) whether the trial court abused its discretion in concluding that termination of respondent's parental rights was in the juvenile's best interest. Counsel, however, acknowledges that he is unable to set forth any non-frivolous argument regarding these issues.
After carefully reviewing the transcript and record, we are unable to find any prejudicial error in the trial court's order. The trial court's findings of fact support at least one ground for termination—namely, neglect. N.C. Gen.Stat. § 7B–1111(a)(1) (2011) provides a ground to terminate parental rights where “the parent has abused or neglected the juvenile.” A neglected juvenile is defined as follows:
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) (2011).
“[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 C.C., 173 N.C.App. 375, 381, 618 S.E.2d 813, 817–18 (2005) (citation omitted) (emphasis in original). “[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.” Id. at 381, 618 S.E.2d at 818 (citation omitted).
If the child is removed from the parent before the termination hearing, as in this case, then “the 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.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). In those circumstances, “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] parents .” In re Reyes, 136 N.C.App. 812, 814–15, 526 S.E.2d 499, 501 (2000).
In this case, the trial court considered four prior adjudications of neglect involving respondent and her children, including two adjudications involving the juvenile's older siblings, which contained findings of fact and conclusions of law regarding the juvenile's sister's sexual abuse by her uncle and respondent's refusal to acknowledge any danger or offer the juvenile's sister protection. The prior adjudications also established a pattern by respondent of disciplining her children by hitting them with objects. Respondent also said, she would continue to “beat” her children because “that's my culture[,]” and evidence supports that whoever kept the children could “whoop” them with “a hickory, a belt, a drop cord, or a broom.” The trial court made findings related to respondent's refusal to acknowledge any risk posed to the juvenile by Albert Brooker, the juvenile's step-father, or Robert Sifford, the juvenile's maternal uncle, who were convicted sex offenders, even though they served prison sentences for molesting the juvenile's sibling. Respondent expressed disbelief that any such abuse occurred. The trial court made findings based on respondent's “denials, despite established history of physical and sexual abuse[,]” which the trial court concluded rendered respondent unable to protect the juvenile from future neglect. The trial court also stated that the probability that the juvenile would again be neglected if returned to respondent's care was significant. Cf. In re Beasley, 147 N.C.App. 399, 405, 555 S.E.2d 643, 648 (2001) (affirming orders terminating respondents' parental rights when evidence supported findings of fact that “show[ed] a clear pattern of neglect going back [for years],” and showed that “the probability of repetition of neglect is very great”).
Based on the foregoing, we conclude that the trial court's findings of fact support the termination of respondent's parental rights on the basis of neglect. N.C. Gen.Stat. § 7B–1111 (a)(1). We also conclude the trial court did not abuse its discretion in determining that termination was in the best interests of the juvenile. Furthermore, we conclude that respondent is barred from challenging the trial court's 4 March 2010 order, and that she was not prejudiced by the delay in the termination proceedings. Accordingly, following careful review of the record, we find no prejudicial error in the trial court's order terminating respondent's parental rights to the juvenile.
The order entered 4 March 2010 placed custody of the juvenile with DSS. Respondent never filed a notice of appeal from this order. Therefore, respondent's argument pertaining to the 4 March 2010 order is not properly before this Court. See In re Wheeler, 87 N.C.App. 189, 194, 360 S.E.2d 458, 461 (1987) (stating that “[b]ecause no appeal was taken or other relief sought from the 29 April 1985 order, it remained a valid final order which was binding in the later proceeding on the facts regarding abuse and neglect which were found to exist at the time it was entered”).
Respondent retained new trial counsel before the termination of parental rights hearing, and respondent made a motion to continue the termination of parental rights hearing for the benefit of the new counsel, stating that “counsel has not had adequate time to prepare this matter for trial.” In the motion, respondent also stated that she “waives any statutory time requirements which require this matter to be heard within a certain time.” Respondent cannot be prejudiced by “the granting of [her] own requests” before the trial court. State v. Kelso, 187 N.C.App. 718, 723, 654 S.E.2d 28, 32 (2007), disc. review denied,362 N.C. 367, 663 S.E.2d 432 (2008).
Affirmed. Judge STROUD and Judge HUNTER, JR. concur.
Report per Rule 30(e).