In The Matter of: D.K

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-329 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 IN THE MATTER OF: New Hanover County No. 08 JT 145 D.K. Appeal by respondent-mother from order entered 29 December 2010 by Judge Melinda H. Crouch in New Hanover County District Court. Heard in the Court of Appeals 29 August 2011. Regina Floyd-Davis for New Hanover Social Services petitioner-appellee. County Department of Janet K. Ledbetter for respondent-mother appellant. Anne M. Middleton for guardian ad litem. McCULLOUGH, Judge. Respondent-mother appeals from the district court s order terminating her parental rights to her daughter, D.K. We affirm. I. Background On 27 May 2008, D.K. was taken into nonsecure custody by the New Hanover County Department of Social Services ( DSS ) -2pursuant to a nonsecure custody order issued by the trial court. The following day, on 28 May 2008, DSS filed a juvenile petition alleging that D.K. was a neglected and dependent juvenile. Following a hearing on 10 July 2008, the trial court entered an order adjudicating D.K. neglected and dependent based on respondent-mother s stipulation to the allegations of neglect, and the stipulation of D.K. s father1 to the allegations of dependency. In the order, the trial court found that respondentmother had beaten D.K. with a belt and that D.K. had deep, purple bruises on her right shoulder, upper right chest, and portions of her midsection which were visible for four days. The trial court also found that respondent-mother had failed to administer certain prescription medication to D.K. In an order entered 15 March 2010, the trial court relieved DSS of reasonable reunification efforts permanent plan for D.K. to adoption. and changed the On 14 June 2010, DSS filed a petition to terminate respondent-mother s parental rights to D.K., alleging the following grounds for termination: (1) neglect; and (2) willfully leaving the juvenile in foster care for more than twelve months without showing reasonable progress to correct 1 the conditions that led to the removal D.K. s father is not a party to this appeal. of the -3juvenile. See N.C. Gen. Stat. § 7B-1111(a)(1), (2) (2009). Respondent-mother filed an answer to the petition, denying the material allegations. The trial court conducted a termination hearing on 15 November 2010, and in an order entered 29 December 2010, the trial court found the existence of both grounds for termination alleged against respondent-mother. At disposition, the trial court concluded that it was in the juvenile s best interests to terminate respondent-mother s parental rights. The trial court also terminated the parental rights of D.K. s father. Respondent-mother timely appealed from the order. II. Neglect On appeal, respondent-mother challenges the trial court s finding both grounds for termination of her parental rights. Pursuant to N.C. Gen. Stat. § 7B-1111(a), a trial court may terminate parental enumerated grounds. rights Id. upon a finding of one of the ten If this Court determines that the findings of fact support at least one ground for termination, we need not review the other challenged grounds. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) ( A finding of any one of the enumerated grounds for termination of parental rights under termination. ). N.C.G.S. 7B-1111 is sufficient to support a -4We conclude that the trial court s findings of fact are sufficient parental to support rights based termination of neglect. N.C. on respondent-mother s Gen. Stat. § 7B- 1111(a)(1) authorizes neglect as a ground for termination, and our General Statutes define a neglected juvenile, in pertinent part, as one who does not receive proper care, supervision, or discipline from the juvenile s parent, guardian, custodian, or caretaker; . . . or who lives in an environment injurious to the juvenile s (2009). the welfare; . . . . N.C. Gen. Stat. § 7B-101(15) Where, as here, a child has not been in the custody of parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect. In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). parent s ability termination to Because the determinative factor is the care proceeding, for we the have child at previously the time of explained the that requiring the petitioner in such circumstances to show that the child is currently neglected by the parent termination of parental rights impossible. trial court conditions[.] must Id. also consider Id. evidence would make Thus, the of changed Accordingly, [i]n those circumstances, a -5trial court may find that grounds for termination exist upon a showing of a history of neglect by probability of a repetition of neglect. the parent and the In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting Shermer, 156 N.C. App. at 286, 576 S.E.2d at 407). The following findings of fact are pertinent to this ground for termination: 4. [Respondent-mother] had administered inappropriate discipline upon [D.K.], leaving visible bruises about her body. Additionally, [D.K.] was prescribed medication for a mental health diagnosis; however [respondent-mother] failed to administer the medication. [Respondentmother] admitted her actions, and the Juvenile was adjudicated neglected and dependent . . . . 5. That the Department developed and updated Family Service Case Plans with [respondent-mother] in an effort to eliminate the need for out of home placement and work towards the permanent plan of reunification. The case plans of 23 June 2008, 18 September 2008, 03 December 2008, 28 April 2009 and 16 July 2009 recommended that [respondent-mother] engage in individual counseling. The April case plan also recommended that she participate with Methodist In-Home counseling services. 6. That the Court Orders from hearings held from 03 December 2008 through 05 November 2009 included provisions that [respondent-mother] complete a parenting class, enroll in the Domestic Violence Empowerment Group, and participate in -6individual counseling. counseling and joint family 7. During [D.K.] s initial placement in foster care, the Juvenile disclosed that [respondent-mother] s boyfriend had inappropriately touched her, sexually; the Department was unable to substantiate the allegations. [Respondent-mother] was made aware of the allegations and eventually indicated her belief that the incident did occur. [Respondent-mother] agreed to protect [D.K.] from future risk of sexual harm by not allowing [D.K.] to be in the presence of her boyfriend and/or other unrelated males. 8. At the permanency planning hearing on 30 April 2009, [respondent-mother] had completed her parenting and empowerment class, was participating in individual therapy with Lee Lloyd, was participating in family therapy and exercising unsupervised day visits and one overnight visit per week. This Court authorized continued overnight visitation, which could expand to a trial placement. 9. That within the next six months, [respondent-mother s] progress regressed. Following one of the overnight visits at her mother s home, [D.K.] disclosed that her mother s boyfriend, [Kyle],2 spent the night during her visit. [Respondent-mother] s therapist, Lee Lloyd dismissed her due to numerous missed sessions and dishonesty about her continued relationship with her boyfriend, [Kyle]. [Respondent-mother] contends that her therapeutic relationship with Mr. Lloyd ended because she could not afford the three dollar ($3.00) co-payment. She receives SSI for a learning disability 2 A pseudonym. -7in the amount of six hundred seventy-four dollars ($674.00) and lives in subsidized housing with a small rent requirement. She did not inform the Department of any financial difficulty nor request any assistance. She did not re-initiate counseling for approximately three months. [Respondent-mother] acknowledged via testimony that she would have been able to pay for counseling if she had properly used her SSI funds. 10. [Respondent-mother] was aware that [Kyle] was not to be in the presence of [D.K.], but concealed their continued relationship. Hence, unsupervised visitation was suspended and the trial placement did not occur. 11. That [respondent-mother] has not been forthcoming regarding the circumstances under which [Kyle] was at her home. In the past, [respondent-mother] has acknowledged that [Kyle] spent the night; however, on this date and at the permanency planning review hearing of 18 February 2010, she maintains that he rang the doorbell and she unknowingly answered the door, resulting in [D.K.] seeing [Kyle]. She does not acknowledge his actual presence within the home. 12. That [respondent-mother] was directed that [D.K.] was to have no contact with her father, . . . due to his noncompliance with Court Orders and because of the witnessed domestic violence which occurred between [respondent-mother] and [D.K. s father]. Despite said directive, [respondent-mother] contacted [D.K. s father] and invited him to the birthday party that she was planning for [D.K.]. . . . [Respondent-mother] contacted her DSS Social Worker to see if it was okay -8for [D.K. s father] to attend and was told that he could not as he had not had contact with the Department. [D.K.] did not have any contact with her father. [Respondentmother] does not appear to comprehend how her actions negatively impact [D.K.] s emotional growth. 13. That [respondent-mother] cancelled the planned birthday party when the Social Worker restricted the number of persons that could be present for the party. She then chose not to see [D.K.] at all on her birthday, as she was upset and did not want [D.K.] to see her upset. [Respondent-mother] acknowledged that [D.K.] was probably upset that she didn t see her mother on her birthday. 14. That during one of [respondentmother] s visitations, she attempted to allow [D.K.] to speak with a man whom [respondent-mother] contends was [D.K.] s uncle. As the Social Worker was unable to verify the man s identity, [D.K.] was not allowed to converse. [Respondent-mother] became visibly upset, and instead of focusing on the visit with her daughter, she spent the time on the phone informing others of the incident. 15. That [respondent-mother] has not maintained consistency in the recommended individual counseling, during the period that [D.K.] has been in care, i.e. from 27 May 2008 through the present. She saw D.H. for approximately 6-7 sessions, but D.H. moved out of the area. Her next therapist, Lee Lloyd discharged her for failing to disclose her continued relationship with [Kyle]. In mid November of 2009, [respondent-mother] utilized the services of Wendy Cox at MQA for community support and counseling. However, [respondent-mother] -9voluntarily suspended their services in February of 2010, upon advice of counsel of record. On 20 July 2010, approximately one month after the Petition to terminate her parental rights was filed, [respondentmother] initiated counseling services with Marlissa Van Hout. [Respondent-mother] believes that she is benefitting from counseling by learning how to take responsibility for her actions, expressing herself as opposed to bottling her feelings, and learning not to take out her frustration and anger on [D.K.]. 16. That despite intermittent individual counseling, and family counseling with Trish Brown, [respondent-mother] has not demonstrated the ability to put [D.K.] s needs, safety and well-being first and foremost in her life. Methodist In-Home Services worked with [respondent-mother] for nineteen (19) weeks; they noted that on a surface level, [respondent-mother] appears to have completed the goals of in-home services. When considering the psychological evaluations on both [respondent-mother] and [D.K.], and some of the dynamics observed; it[] seems that this parenting intervention is a good place to start, but it is the deeper psychological components that pose a more serious safety concern. [D.K.] has been placed out of home twelve days shy of two (2) years, six months. . . . . 19. [Respondent-mother] and [D.K.] lived with [D.K. s father] and his mother, . . . for approximately six (6) months. During said time, [D.K. s father] was violent with [respondent-mother]. He prevented her from contacting law enforcement by pulling the phone cord from the wall. [D.K. s father s mother] returned -10[respondent-mother] Carolina due to perpetrated upon [D.K. s father]. Of numbers these 7 findings and 9 of through and [D.K.] to North the domestic violence [respondent-mother] by fact, 16. respondent-mother Respondent-mother challenges purports to challenge findings of fact numbers 8 and 19, but provides no specific argument support. that Additionally, these two findings respondent-mother findings of fact numbers 4 through 6. lack does evidentiary not challenge We therefore presume that findings of fact numbers 4 through 6, 8, and 19 are supported by competent appeal. evidence, and consequently, they are binding on See In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). We review the trial court s order to determine whether the trial court s findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support occur[.] a conclusion that parental termination should In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996). We address each challenged finding of fact in turn. Finding of fact number respondent-mother s inappropriately in 7 boyfriend, the past. pertains Kyle, to allegations touched Respondent-mother argues that D.K. this finding is not supported by the evidence because there was no -11evidence that respondent-mother continued her relationship with Kyle or that D.K. sustained any impairment due to her contact with Kyle. Respondent-mother, however, does not appear to dispute the fact that D.K. reported sexual abuse by Kyle. Nor does she dispute the fact that DSS put a safety plan into place under the terms of which D.K. was not to have any contact with Kyle. Indeed, respondent-mother s own testimony at the hearing supports finding of fact number 7. At the hearing, respondent- mother admitted that she believed Kyle had sexually abused D.K. She also admitted allowing Kyle to be in the presence of D.K., despite knowing that he was not to have any contact with D.K. This evidence is sufficient to support finding of fact number 7. Therefore, we conclude that finding of fact number 7 is supported by clear and convincing evidence. In the first part of finding of fact number 9, the trial court found that D.K. reported that Kyle had spent the night with respondent-mother during one of D.K. s overnight visits. Findings of fact numbers 10 and 11 further incident and respondent-mother s reaction. number 10, concealed the the trial court relationship, found which led that to expound on this In finding of fact respondent-mother the suspension of overnight visits and the cancellation of a trial placement. In -12finding of fact 11, refused respondent-mother number the to trial acknowledge court the found that incident and provided an alternative explanation at the hearing. Respondent- mother challenges these findings, arguing that DSS failed to present any evidence that respondent-mother continued relationship with Kyle at the time of the hearing. mother s argument is irrelevant. a Respondent- The findings do not indicate that respondent-mother was still in a relationship with Kyle at the time of the hearing, and regardless of when respondent- mother ended the relationship, the evidence is sufficient to show that she carried on the relationship while the case was pending. testified Both a social worker and the guardian ad litem ( GAL ) that D.K. disclosed Kyle s overnight stay with respondent-mother. They also testified that overnight visitation was suspended and the trial placement was cancelled due to the incident. Although respondent-mother testified that Kyle had only to come her front door, the trial court was free to discredit respondent-mother s testimony and instead believe the accounts of the social worker, the GAL, and respondent-mother s acknowledgment at a previous hearing. It is the duty of the trial judge to determine the weight and credibility to be given to evidence. In re Hughes, 74 N.C. App. 751, 759, 330 S.E.2d -13213, 218 (1985) ( The trial judge determines the weight to be given the testimony and the reasonable inferences to be drawn therefrom. If a different inference may be drawn from the evidence, he alone determines which inferences to draw and which to reject. ). Therefore, we conclude that the trial court s findings in numbers 9, 10, and 11 were properly supported by the evidence. We must also address respondent-mother s remaining challenge to finding of fact number 9, which details respondentmother s dismissal from a previous therapist, Lee Lloyd. The trial court found that respondent-mother was dismissed due to dishonesty about her relationship with Kyle. Although the social worker s testimony on this issue was somewhat vague, the trial court s finding is also supported by a previous permanency planning order. A trial court may take judicial notice of earlier proceedings in the same cause[,] which the trial court did in the present case in its order terminating respondentmother s parental rights. In re J.B., 172 N.C. App. 1, 16, 616 S.E.2d 264, 273 (2005) (quoting In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991)). Although the permanency planning order is subject to a lower standard of evidentiary proof, this Court has acknowledged the well-established -14supposition that the trial court in a bench trial is presumed to have disregarded any incompetent evidence. Id. (quoting In re Huff, 140 N.C. App. 288, 298, 536 S.E.2d 838, 845 (2000)). The remainder of the finding is merely a summary of respondentmother s testimony regarding the issue and is therefore supported by the evidence presented at the hearing. Again, we note that while respondent-mother denied being dismissed from therapy due to dishonesty about her relationship with Kyle, the trial court was free to discredit respondent-mother s testimony and rely on other competent evidence in the record. 74 N.C. App. at 759, 330 S.E.2d at 218. See Hughes, Accordingly, we affirm the remainder of finding of fact number 9. Next, we turn to findings of fact numbers 12 and 13. In these findings, the trial court found that respondent-mother was prohibited from allowing D.K. to have contact with her father and that despite said directive, respondent-mother invited him to a birthday party for D.K. The trial court further found that respondent-mother cancelled the party and chose not see D.K. at all on D.K. s birthday after a social worker limited the number of guests and informed respondent-mother that D.K. s father was not permitted to attend. Respondent-mother does not appear to challenge the evidentiary basis for these findings, and instead -15points out that, at the hearing, she acknowledged the foolishness of her actions and has not missed any visits with D.K. since her birthday. This argument is also irrelevant. Even if she later acknowledged the foolishness of her actions, findings of fact numbers mother s inappropriate 12 and handling 13 of demonstrate the respondent- issue. Furthermore, findings of fact numbers 12 and 13 are based on the testimony of a social worker and respondent-mother herself. conclude that these findings are We therefore supported by clear and convincing evidence. Finding of fact respondent-mother number permitted 14 D.K. details to speak male on the telephone during a visit. the man was D.K. s uncle. an incident to an where unidentified Respondent-mother claimed Nonetheless, the social worker did not allow D.K. to speak to the man because she was unable to verify the man s identity. Rather than spending time with her daughter, respondent-mother became upset and spent the remaining time on her telephone discussing the incident with others. Again, respondent-mother does not challenge the factual basis for this finding finding. was not fair Instead, because she the brother, not an unidentified male. seems man to on suggest the phone that the was her Regardless of who was on the -16phone, this finding inappropriate again handling of demonstrates the respondent-mother s situation. Furthermore, the finding is supported by the testimony of the social worker and respondent-mother, and we therefore conclude that it is supported by clear and convincing evidence. In finding of fact number 15, the trial court made findings regarding respondent-mother s therapy history. First, respondent-mother takes issue with the findings pertaining to therapist Lee Lloyd. Respondent-mother made identical challenges to finding of fact number 9, and we affirm the findings in number 15 pertaining to Lee Lloyd affirmed finding of fact number 9. for the same reasons we However, respondent-mother further claims that the findings pertaining to her subsequent therapists are not supported by the evidence. We disagree. At the hearing, respondent-mother herself provided the trial court with a detailed account of her therapy history, which supports the trial court s findings. Next, finding of respondent-mother fact number 15, [t]hat [respondent-mother] challenges the first sentence of in which the trial court found has not maintained consistency in the recommended individual counseling, during the period that [D.K.] has been in care[.] Respondent-mother argues that this -17finding is not supported by the evidence. finding is a reasonable inference that We disagree. the trial permitted to draw based on the evidence before it. This court was As the trier of fact in a juvenile proceeding, it is the trial court 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. In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984). Accordingly, we conclude that finding of fact number 15 was supported by clear and convincing evidence. Finally, respondent-mother challenges the second sentence of finding of fact number 16, which contains a lengthy quote from Methodist In-Home Services. Respondent-mother argues that this quote has no support in the record or transcript. agree. We Nevertheless, this sentence was not necessary to the trial court s ultimate finding of neglect and any error on the part of the trial court is therefore harmless. remaining challenged portions and are competent evidence. S.E.2d at 785. of finding therefore of fact presumed Furthermore, the number 16 to supported be were not by See In re M.D., 200 N.C. App. at 43, 682 -18In her challenge to the trial court s conclusions of law, respondent-mother first argues that DSS failed to present any evidence that neglect was likely to reoccur. Respondent-mother also argues that the evidence is insufficient to demonstrate that D.K. suffered any impairment or risk of impairment due to respondent-mother s behavior. We disagree with both contentions. The trial court s findings of fact demonstrate that respondentmother continued a relationship with Kyle despite prohibitions by the trial court and DSS; that she was dishonest about the relationship; that she was inconsistent in attending therapy and that at least some of the inconsistency was due to respondentmother s own actions; that she handled several situations with D.K. inappropriately; and that she maintained a relationship with Kyle and invited D.K. s father to a birthday party, both of whom were prohibited from being in the presence of D.K. and were harmful to D.K. s well-being. Furthermore, respondent-mother admitted that she would benefit from anger management classes, that she had not completed everything required in her case plan, and that she needed more time to show she could parent D.K. foregoing repetition evidence of was neglect respondent-mother s sufficient was custody. likely In to if demonstrate D.K. addition, was the The that a returned to evidence was -19sufficient to demonstrate that D.K. was at risk of impairment if she was returned to respondent-mother s custody. After reviewing the findings of fact, we conclude that they are supported by clear, cogent, and convincing evidence. We further conclude that the findings of fact support the trial court s conclusions that respondent-mother neglected D.K., that repetition of neglect was likely if D.K. was returned to respondent-mother s custody, and that termination of respondentmother s parental rights was justified based on the ground of neglect. Lastly, respondent-mother challenges finding of fact number 23, in which the trial court made the ultimate finding that there was clear, cogent, and convincing evidence that respondent-mother neglected D.K. and that the neglect was likely to recur if D.K. was returned to respondent-mother. Respondent- mother argues that this finding is actually a conclusion of law. A conclusion of law is the court s statement of the law which is determinative of the matter at issue between the parties. Hughes, 74 N.C. App. at 759-60, 330 S.E.2d at 219. We agree that this finding is determinative of the issue between the parties consider and an therefore is improperly a conclusion classified of law. finding of However, fact as we a -20challenged conclusion of law. See In re T.H.T., 185 N.C. App. 337, 345, 648 S.E.2d 519, 524 (2007), modified and aff d, 362 N.C. 446, 665 S.E.2d 54 (2008). We have already concluded that the findings of fact support the conclusion that grounds exist to terminate neglect. respondent-mother s Therefore, we also parental conclude rights that based finding of on fact number 23 is supported by the trial court s findings of fact. Upon finding the respondent-mother s required to existence parental determine a rights, whether interests of the minor child. of ground the to trial termination was terminate court in was the best In re S.C.R., 198 N.C. App. 525, 536, 679 S.E.2d 905, 911, appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009). of Here, the trial court found that termination respondent-mother s interests. parental rights was in D.K. s best Although respondent-mother raised an issue as to whether termination was in D.K. s best interests, respondentmother failed to argue the issue in her brief. not address the trial court s determination. Therefore, we do best interests of the child In re D.J.D., 171 N.C. App. 230, 236-37, 615 S.E.2d 26, 31 (2005); see also N.C.R. App. P. 28(b)(6) (2011) ( Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as -21abandoned. ). Accordingly, we affirm the trial court s order terminating respondent-mother s parental rights to D.K. Affirmed. Chief Judge MARTIN and Judge STEELMAN concur. Report per Rule 30(e).

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