Opinion
No. COA11-731
Filed 6 December 2011 This case not for publication
Appeal by respondent-father from order entered 7 April 2011 by Judge James R. Fullwood in Wake County District Court. Heard in the Court of Appeals 7 November 2011.
Office of the Wake County Attorney, by Kenneth R. Murphy, III and Julia Southwick, for petitioner-appellee Wake County Human Services. Edward Eldred for respondent-appellant. Poyner Spruill LLP, by Kathryn R. Paradise, for guardian ad litem.
Wake County No. 09 JT 158.
Respondent-father appeals from an order terminating his parental rights to G.N. After careful review, we affirm.
Background
On 1 July 2009, Wake County Human Services ("WCHS") filed a petition alleging that G.N., as well as a sibling, were neglected and dependent juveniles. WCHS stated that on 25 September 2008, it received a report that G.N. had been brought to a hospital emergency room by her mother. WCHS alleged:
The doctor noticed bruises in the shape of fingerprints on the child's left thigh. A review of medical records revealed that the child had been seen at the emergency room on September 7, 2008, for a fractured Humerus. An appointment with an orthopedic surgeon scheduled for September 9, 2008, was not kept.
. . . Further investigation revealed that [the mother] often left the child with the maternal grandmother for extended periods of time. The child has now been with the maternal grandmother for two weeks. The mother has made no provision for support for the child. The maternal grandmother is unable to get medical care or other benefits for the child as the mother cannot be reached. As recently as a family preservation meeting on April 9, 2009, the mother agreed to work on a Family Services Agreement. She has failed to deal with any of the issues discussed at the meeting and, has since that time, lost her employment and her housing.
At the time the petition was filed, respondent-father was incarcerated in federal prison in West Virginia. DSS stated that "[c]orrespondence sent to the prison has not elicited a response." G.N. was taken into non-secure custody and placed with her maternal grandmother.
An adjudicatory hearing was held on 4 August 2009. Respondent-father did not appear at the hearing, but was represented by counsel. A consent judgment was entered and G.N. was adjudicated a neglected and dependent juvenile. The court later granted respondent-father visitation with G.N. "as permitted at the facility in which he is housed and facilitated by the paternal grandparents."
On 23 March 2010, the court held a review hearing at which time it determined that reunification efforts would be futile or inconsistent with G.N.'s safety and need for a safe home within a reasonable period of time. The court noted that the maternal grandmother was willing to adopt G.N., and accordingly changed the permanent plan for the juvenile to adoption and authorized WCHS to file a petition to terminate parental rights.
On 23 July 2010, WCHS filed a motion to terminate parental rights. WCHS alleged that grounds existed to terminate respondent-father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2), (3) and (6) (2009). On 7 April 2011, the trial court terminated respondent-father's parental rights after concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), (2) and (3). Respondent-father appeals.
Discussion
Respondent-father's sole argument on appeal is that the trial court erred by concluding that grounds existed 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) (citing In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000)), disc. review denied, appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001).
In the instant case, one of the grounds found by the court to support termination of respondent-father's parental rights was neglect. See N.C. Gen. Stat. § 7B-1111(a)(1). "Neglected juvenile" is defined in N.C. Gen. Stat. § 7B-101(15) (2009) 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.
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). 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." Id. at 715, 319 S.E.2d at 232. 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).
Here, in finding of fact 13, the trial court found that G.N. had been adjudicated a neglected juvenile by consent order entered 4 August 2009. Respondent-father contends that the order was not valid because he was not present at the hearing. Defendant relies on In re J.R., 163 N.C. App. 201, 202, 592 S.E.2d 746, 747 (2004) (citing In re Shaw, 152 N.C. App. 126, 130, 566 S.E.2d 744, 746-47 (2004) and In re Thrift, 137 N.C. App. 559, 563, 528 S.E.2d 394, 397 (2000)) where this Court held that "the consent of one parent to a finding of neglect does not give rise to a valid consent judgment in the absence of the other parent." Here, unlike the facts presented in J.R., Shaw, and Thrift, respondent-father's attorney signed the consent order on respondent-father's behalf with his express authorization. At the subsequent termination hearing, the trial court took judicial notice of the consent order without objection from respondent-father's counsel. Thus, we conclude that respondent-father is estopped from challenging the validity of the prior adjudication of neglect.
We now address whether the trial court erred in ultimately finding that the repetition of neglect was probable. In its adjudicatory order, the trial court ordered respondent to: (1) correspond with the foster care social worker either by letter or email; (2) correspond with G.N. through written correspondence sent to the social worker; (3) enroll in any parenting class offered at the facility in which he was imprisoned; and (4) take whatever steps were necessary to establish paternity. In its termination order, the trial court found that respondent-father established paternity. The trial court further found, however, that other than establishing paternity, respondent-father failed to comply with the court's prior orders. The trial court found in relevant part:
17. . . . [Respondent-father] has not participated in any services while incarcerated. The social worker has no information as to programs available to the father and the father has not provided the social worker with any information. The father has written one letter to WCHS since the child was taken into care. That letter was dated August 4, 2010. There have been no letters since that time. He has provided no correspondence for the child through Wake County Human Services. WCHS [sic] address and contact information has remained the same. No evidence was presented to confirm testimony on the part of the paternal grandfather that letters were received by him for the child. The father has sent no gifts or financial support for the child. . . . [Respondent-father] has had no real involvement with [G.N.] since her birth other than the visits in prison facilitated by [his] parents. [Respondent-father] has not maintained regular contact with Wake County Human Services. . . .
. . . .
22. That the child is placed in the pre-adoptive home with her maternal grandmother ["Ms. H."] and her older half-sister. . . . The father has provided no direct support for the child to [Ms. H.] and has made no calls to [Ms. H.] or made inquiries about the child to [Ms. H.].
. . . .
25. . . . The father has never visited alone with the child and has never been the primary caregiver for the child. The paternal grandparents who have taken the child for visits always provide such care as changing diapers. . . .
. . . .
27. . . . [Ms. H.] testified, and the Court finds, that [G.N.] does not return from visits with her father with pictures or cards. . . .
Respondent-father does not contest findings of fact numbers 22, 25 or 27 on appeal. Therefore, those findings of fact are deemed to be supported by competent evidence, and are binding on appeal. See N.C.R. App. P. 28(b)(6) ("Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned."); see also In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404 (2005) (concluding respondent had abandoned factual assignments of error when she "failed to specifically argue in her brief that they were unsupported by evidence").
We further find that finding of fact 17 is supported by competent evidence, despite respondent-father's argument to the contrary. Respondent-father cites the paternal grandfather's testimony that respondent-father was: (1) on the waiting list for parenting classes; and (2) that respondent-father had sent letters to G.N. directly. Nevertheless, the evidence supports the trial court's findings that respondent-father had not taken any parenting classes, and had failed to correspond with G.N. via letters sent to the social worker, as directed by the trial court's prior orders. See In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984) (stating that it is the trial judge's duty to "weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom").
Based on its findings of fact, the court made an ultimate finding that repetition of neglect was "probable" should G.N. be placed in respondent-father's care. We conclude that the evidence supports this finding. Furthermore, we conclude that, when coupled with the juvenile's prior adjudication of neglect, the finding that there would likely be a repetition of the same neglect supports the trial court's conclusion of law that grounds existed to terminate respondent-father's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
Respondent-father additionally argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) and (3) to terminate his parental rights. However, because we conclude that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to support the trial court's order, we need not address the remaining grounds found by the trial court to support termination. Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34. Accordingly, we affirm the trial court's order terminating respondent-father's parental rights.
Affirmed.
Judges THIGPEN and MCCULLOUGH concur.
Report per Rule 30(e).