In re B.S.O. ( 2014 )

NO. COA14-186
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
IN THE MATTER OF:
Mecklenburg County
B.S.O. Nos. 09 JT 714-17, 10 JT 217
V.S.O.
R.S.O.
A.S.O.
Y.S.O.
Appeal by respondents from order entered 12 November 2013
by Judge Regan A. Miller in Mecklenburg County District Court.
Heard in the Court of Appeals 11 June 2014.
Twyla Hollingsworth-Richardson for petitioner-appellee
Mecklenburg County Department of Social Services, Division
of Youth and Family Services.
Smith Moore Leatherwood LLP, by Carrie A. Hanger, for
guardian ad litem.
Appellate Defender Staples Hughes by Assistant Appellate
Defender Joyce L. Terres, for respondent-appellant mother.
Rebekah W. Davis for respondent-appellant father.
STROUD, Judge.
Respondent-parents appeal from an order terminating their
parental rights to the minor children B.S.O. (“Brandy,” born
April 2009), V.S.O. (“Vincent,” born May 2006), R.S.O.
(“Ronald,” born May 2005), A.S.O. (“Adam,” born January 2004),
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and Y.S.O. (“Yvonne,” born April 2010).1 Because respondent-
father is not the father of Adam or Yvonne, his appeal does not
involve these children. We note that the district court also
terminated the parental rights of Yvonne’s father, Jose S., and
Adam’s putative father, Orlando V., neither of whom are parties
to this appeal.
I. Procedural History
Mecklenburg County Youth and Family Services (“YFS”)
obtained non-secure custody of Brandy, Vincent, Ronald and Adam
on 14 October 2009, and of Yvonne on 9 April 2010. The district
court adjudicated the four elder children neglected and
dependent juveniles on 10 December 2009, and entered
adjudications of neglect and dependency as to Yvonne on 5 May
2010. As we noted in respondents’ previous appeal, YFS “first
became involved with the family in February of 2006 based on
reports of inappropriate discipline and domestic violence. YFS
remained involved with the family over the course of the next
several years.” In re B.S.O., ___ N.C. App. ___, ___, 740
S.E.2d 483, 484 (2013).
YFS filed petitions to terminate respondents’ parental
1
We will refer to the juveniles by pseudonym to protect their
privacy.
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rights on 9 May 2011. The district court held its initial
hearing on the petitions between 5 January and 16 March 2012 and
entered an order terminating respondents’ parental rights on 18
April 2012. On appeal, we reversed the order and remanded to
the district court for consideration of respondent-mother’s
motion to re-open the evidence, which she filed prior to entry
of the termination order. In re B.S.O., ___ N.C. App. at ___,
740 S.E.2d at 486-87. The court allowed respondent-mother’s
motion and received additional evidence in the cause on 18 July
and 30 September 2013. By order entered 12 November 2013, the
court again concluded that grounds existed to terminate
respondents’ parental rights and determined that termination was
in the best interests of the minor children. Respondents filed
timely notices of appeal.
II. Standard of Review
Respondents challenge the district court’s adjudication of
grounds to terminate their parental rights under N.C. Gen. Stat.
§ 7B-1111(a) (2013). In reviewing the trial court’s decision,
we must determine whether the findings of fact are supported by
clear, cogent and convincing evidence, and whether the findings
support the court’s conclusions of law. In re Gleisner, 141
N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). “If there is
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competent evidence, the findings of the trial court are binding
on appeal.” In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d
69, 73 (2003). An appellant is bound by any unchallenged
findings of fact. Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991). Moreover, “erroneous findings
unnecessary to the determination do not constitute reversible
error” where the adjudication is supported by sufficient
additional findings grounded in competent evidence. In re T.M.,
180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006). We review
conclusions of law de novo. In re J.S.L., 177 N.C. App. 151,
154, 628 S.E.2d 387, 389 (2006).
Respondents challenge each of the grounds for termination
found by the district court. However, it is well established
that any “single ground . . . is sufficient to support an order
terminating parental rights.” In re J.M.W., 179 N.C. App. 788,
789, 635 S.E.2d 916, 917 (2006). Therefore, if we determine that
the court properly found one ground for termination under N.C.
Gen. Stat. § 7B-1111(a), we need not review the remaining
grounds. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d
421, 426-27 (2003).
III. Respondent-father’s Appeal
Respondent-father argues the district court erred in
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terminating his parental rights based on an adjudication of
willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7)
(2013). Respondent-father contends that he was not afforded
notice of his need to defend this ground at the termination
hearing because the petitions filed by YFS did not specifically
allege willful abandonment under subpart (a)(7). See In re
C.W., 182 N.C. App. 214, 228-29, 641 S.E.2d 725, 735 (2007). We
disagree.
The Juvenile Code requires a motion or petition for
termination of parental rights to allege “[f]acts that are
sufficient to warrant a determination that one or more of the
grounds for terminating parental rights [in N.C. Gen. Stat. §
7B-1111(a)] exist.” N.C. Gen. Stat. § 7B-1104(6) (2013). While
the allegations “need not be exhaustive or extensive[,]” this
Court has held that “they must be sufficient to put a party on
notice as to what acts, omission or conditions are at issue.”
In re T.J.F., ___ N.C. App. ___, ___, 750 S.E.2d 568, 569 (2013)
(citation and quotation marks omitted). Moreover,
[w]hen the petition alleges the existence of
a particular statutory ground and the court
finds the existence of a ground not cited in
the petition, termination of parental rights
on that ground may not stand unless the
petition alleges facts to place the parent
on notice that parental rights could be
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terminated on that ground.
Id.Under N.C. Gen. Stat. § 7B-1111(a)(7), parental rights may
be terminated if “[t]he parent has willfully abandoned the
juvenile for at least six consecutive months immediately
preceding the filing of the petition or motion[.]” N.C. Gen.
Stat. § 7B-1111(a)(7). “It has been held that if a parent
withholds his presence, his love, his care, the opportunity to
display filial affection, and wil[l]fully neglects to lend
support and maintenance, such parent relinquishes all parental
claims and abandons the child.” Pratt v. Bishop, 257 N.C. 486,
501, 126 S.E.2d 597, 608 (1962).
The petitions filed by YFS on 9 May 2011 alleged that
respondent-father, inter alia, “abandoned said juvenile[s] in
that . . . [he] was deported to Mexico . . . after being
incarcerated on September 3, 2010. [His] current whereabouts
are unknown.” (emphasis added). The petitions further alleged
that respondent-father, “for a continuous period of more than
(6) months next preceding the filing of the petition[s], ha[d]
willfully failed for such period to pay a reasonable portion of
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the cost of care for said juvenile[s.]”2 Although YFS referred
to respondent-father’s abandonment of the children in the
context of alleging that he “neglected said juvenile[s] as
defined in G.S. Section 7B-101(15)[,]” the petitions explicitly
asserted that respondent-father had, in fact, “abandoned” his
children. Coupled with allegations that his whereabouts were
unknown since his incarceration and deportation in September
2010 – approximately eight months before the petitions were
filed – we believe the allegation of abandonment was sufficient
to put respondent-father on notice of a potential adjudication
under N.C. Gen. Stat. § 7B-1111(a)(7). Cf. In re T.J.F., ___
N.C. App. at ___, 750 S.E.2d at 569 (“While the better practice
would have been to specifically plead termination pursuant to
section 7B-1111(a)(7), we conclude the petition here
sufficiently alleged facts to place respondent-father on notice
that his parental rights may be terminated on the basis that he
abandoned his child.”).
Respondent-father also argues that the evidence and the
district court’s findings of fact are insufficient to establish
that he willfully abandoned the minor children in the six months
immediately preceding YFS’s filing of the petition, as required
2
See N.C. Gen. Stat. § 7B-1111(a)(3) (2013).
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by N.C. Gen. Stat. § 7B-1111(a)(7). He contends that “neither
the findings nor the evidence address[es his] intent or the six
month time period prior to the filing of the termination
petition.”
To establish grounds for termination under N.C. Gen. Stat.
§ 7B-1111(a)(7), YFS was required to show that respondent-father
had willfully abandoned his children during the “determinative
period” from 9 November 2010 to 9 May 2011, the date it filed
its petitions. In re S.R.G., 195 N.C. App. 79, 84-85, 671
S.E.2d 47, 51-52 (2009). “Abandonment implies conduct on the
part of the parent which manifests a willful determination to
[forgo] all parental duties and relinquish all parental claims
to the child.” In re Searle, 82 N.C. App. 273, 275, 346 S.E.2d
511, 514 (1986). “[T]he findings must clearly show that the
parent’s actions are wholly inconsistent with a desire to
maintain custody of the child.” In re S.R.G., 195 N.C. App. at
87, 671 S.E.2d at 53.
Rearranged for clarity, the district court’s findings
reflect the following facts regarding respondent-father’s
conduct during the six months that preceded the filing of the
termination petitions in May 2011:
59. [Respondent-father] was incarcerated
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for no operator license offense on 3
September 2010 and deported [to Mexico].
60. He returned to Charlotte at some point
in March 2012. . . .
. . . .
47. While in Mexico, [respondent-father]
was in contact with the social worker on at
least one occasion. During the time
[respondent-father] was in Mexico, he did
not seek to have his three children . . .
come live with him in Mexico. He did not
offer any other relative placements for the
juveniles.
48. While in Mexico, [respondent-father]
did not provide any child support for his
children. [He] did not provide or offer any
financial assistance for the care of his
three children. [He] has not provided any or
offered any child support for his children
since his return to the United States.
. . . .
52. . . . [Respondent-father] has made no
efforts to keep updated on the children
while they have remained in custody.
. . . .
30. Neither the respondent-mother nor the
respondent[-]father[ has] provided any
financial support for the children although
they have the ability to do so. [They] have
no known disabilities.
Based on these findings, the court concluded that respondent-
father “willfully abandoned the juveniles for at least six (6)
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consecutive months immediately preceding the filing of the
petition[.]” See N.C. Gen. Stat. § 7B-1111(a)(7). Although the
willfulness of a parent’s conduct “is a question of fact to be
determined from the evidence[,]” In re Searle, 82 N.C. App. at
276, 346 S.E.2d at 514, it is immaterial that the court labeled
its finding of willfulness by respondent-father a conclusion of
law. See State v. Hopper, 205 N.C. App. 175, 179, 695 S.E.2d
801, 805 (2010) (reviewing a mislabeled “conclusion of law” as a
finding of fact).
We conclude that these findings support the trial court’s
conclusion that respondent-father willfully abandoned his
children under N.C. Gen. Stat. § 7B-1111(a)(7). They show that,
during the relevant six-month period, respondent-father “made no
effort” to remain in contact with his children or their
caretakers and neither provided nor offered anything toward
their support. Although respondent-father was jailed and
deported to Mexico in September 2010, this Court has repeatedly
held that “a respondent’s incarceration, standing alone, neither
precludes nor requires a finding of willfulness” under N.C. Gen.
Stat. § 7B-1111(a)(7). In re McLemore, 139 N.C. App. 426, 431,
533 S.E.2d 508, 510-11 (2000). Similarly, a parent’s
deportation should serve as “neither a sword nor a shield in a
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termination of parental rights decision.” In re P.L.P., 173
N.C. App. 1, 10, 618 S.E.2d 241, 247 (2005) (citation and
quotation marks omitted), aff’d per curiam, 360 N.C. 360, 625
S.E.2d 779 (2006).
Although incarceration and deportation are not exactly the
same, we find the cases dealing with incarcerated parents to be
instructive. In both situations, a parent has been removed from
his home by law enforcement action, presumably against his will.
The cases recognize that a parent’s opportunities to care for or
associate with a child while incarcerated are different than
those of a parent who is not incarcerated. The opportunities of
an incarcerated parent are even more limited than those of a
deported parent, in that once the deported parent has been
removed from this country, he would be free to work, send funds
to support a child, or communicate with a child by phone,
internet, or mail from his own country. His opportunities to
see the child personally would be limited, but he would be free
to pursue legal action to attempt to have the child returned to
his custody in his own country. In any event, respondent-father
here failed to take advantage of most of these opportunities
after deportation to Mexico.
The evidence showed that respondent-father had the ability
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to remain in contact with his children while in Mexico but
failed to do so. YFS social worker Lynda Peperak testified that
she provided respondent-father with her telephone number in
February 2010. Respondent-father was arrested on 3 September
2010 and left Mecklenburg County Jail on 14 September 2010. Ms.
Peperak spoke with respondent-father by telephone on 6 and 26
May 2011, having “obtained his phone number from one of the
foster parents[,]”3 and confirmed that he still had Ms. Peperak’s
phone number. Nevertheless, respondent-father did not contact
YFS to inquire about his children following his deportation.
Ms. Peperak further testified that respondent-father had never
“provided any cards, gifts, letters, or anything” for his three
children; nor had he ever paid any support for them before or
after YFS filed the petitions to terminate his parental rights
in May 2011.
YFS social worker assistant Karen Logan-Rudisill, who
supervised respondent-mother’s visitation with the children,
testified that respondent-father “called during one of the
visits . . . to speak with the boys” approximately four or five
months prior to the 15 March 2012 termination hearing. He never
3
The record reflects that respondent-father telephoned the
children’s foster parents from Mexico on or about 21 March 2011
and gave them his phone number.
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contacted Ms. Logan-Rudisill regarding the children.
At the hearing held on remand on 18 July 2013, respondent-
father testified that he re-entered the United States without
documentation in April 2012, and obtained employment and leased
an apartment in Charlotte in May 2012. He confirmed that he had
been deported in September 2010 and had spoken with respondent-
mother and the children “[o]ne time” while in Mexico.
Respondent-father claimed he did not contact YFS or the foster
parents from Mexico because he “lost the number[.]” He also
acknowledged that he had not “provided any monies in support of
[the] children since they’ve been in foster care for nearly four
years[.]”
Respondent-father specifically objects to the district
court’s finding that he “made no efforts to keep updated on the
children while they have remained in custody.” To the extent
the evidence showed that he contacted respondent-mother and
spoke to the children on one occasion while he was in Mexico, we
agree that finding of fact 52 is not strictly accurate.
“However, to obtain relief on appeal, an appellant must not only
show error, but that . . . the error was material and
prejudicial, amounting to denial of a substantial right that
will likely affect the outcome of an action.” Starco, Inc. v.
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AMG Bonding and Ins. Servs., 124 N.C. App. 332, 335, 477 S.E.2d
211, 214 (1996). As set forth above, the evidence showed that a
single phone call to respondent-mother represented respondent-
father’s only effort to contact or keep apprised of his children
during the relevant time period.4 Therefore, the court’s error
is harmless. Cf. In re Estate of Mullins, 182 N.C. App. 667,
670-71, 643 S.E.2d 599, 601 (“In a non-jury trial, where there
are sufficient findings of fact based on competent evidence to
support the trial court’s conclusions of law, the judgment will
not be disturbed because of other erroneous findings which do
not affect the conclusions.”) (quotation marks and citation
omitted), disc. rev. denied, 361 N.C. 693, 652 S.E.2d 262(2007).
This Court has found willful abandonment “where a parent
withholds his presence, his love, his care, the opportunity to
display filial affection, and willfully neglects to lend support
and maintenance.” In re D.J.D., 171 N.C. App. 230, 241, 615
S.E.2d 26, 33 (2005) (citation, quotation marks, and brackets
omitted). We have further held that a parent’s single attempt
4
To the extent that respondent-father claims “close contact”
with YFS and the children prior to September 2010, we note this
evidence falls outside the six-month period at issue under N.C.
Gen. Stat. § 7B-1111(a)(7).
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to contact a child during a period of incarceration does not
preclude a finding of willful abandonment under N.C. Gen. Stat.
§ 7B-1111(a)(7). In re McLemore, 139 N.C. App. at 431, 533
S.E.2d at 511 (citing In re Harris, 87 N.C. App. 179, 184, 360
S.E.2d 485, 488 (1987)). Both the evidence and the court’s
findings reflect that respondent-father’s arrest and subsequent
deportation did not prevent him from communicating with his
children and YFS. In light of respondent-father’s single phone
call to respondent-mother and his children during the six months
immediately preceding 9 May 2011, the district court did not err
in finding that he willfully abandoned the children. See id.;
In re Searle, 82 N.C. App. at 276-77, 346 S.E.2d at 514.
Having upheld the adjudication under N.C. Gen. Stat. § 7B-
1111(a)(7), we need not address the remaining grounds found by
the district court for terminating respondent-father’s parental
rights. See In re P.L.P., 173 N.C. App. at 9, 618 S.E.2d at
246.
IV. Respondent-mother’s Appeal
Respondent-mother challenges the court’s conclusion that
she neglected the minor children under N.C. Gen. Stat. § 7B-
1111(a)(1) (2013). A neglected juvenile is one who, inter alia,
“does not receive proper care, supervision, or discipline . . .;
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or who is not provided necessary remedial care; or who lives in
an environment injurious to the juvenile’s welfare[.]” N.C.
Gen. Stat. § 7B-101(15) (2013). In order to support an
adjudication under N.C. Gen. Stat. § 7B-1111(a)(1), “[n]eglect
must exist at the time of the termination hearing[.]” In re
C.W., 182 N.C. App. at 220, 641 S.E.2d at 729. Where “the
parent has been separated from the child for an extended period
of time, the petitioner must show that the parent has neglected
the child in the past and that the parent is likely to neglect
the child in the future.” Id. The determination that a child is
neglected is a conclusion of law. In re Helms, 127 N.C. App.
505, 510, 491 S.E.2d 672, 675 (1997).
In support of its conclusion under N.C. Gen. Stat. § 7B-
1111(a)(1), the district court found as follows:
7. . . . The primary issues which led to
these children being placed in YFS custody
were the mother’s housing instability,
domestic violence between the respondent-
mother and [respondent-father]. Lack of
appropriate supervision of the children and
inappropriate discipline of the children
were primary issues as well.
8. [Brandy, Vincent, Ronald, and Adam]
were adjudicated neglected and dependent on
December 10, 2009 . . . .
9. . . . Yvonne was adjudicated neglected
and dependent on 5 May 2010.
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10. . . . The respondent-mother was to
engage in mental health treatment, obtain
substance abuse assessment, obtain domestic
violence assessment, participate in
parenting education, visit with the
children, maintain contact with YFS social
worker, attend the children’s appointments,
maintain stable housing, and obtain
employment in order to provide for the
children.
. . . .
14. The respondent-mother was required to
obtain therapy to establish that she could
independently care for the children. The
mother has suffered significant trauma in
her life. The respondent-mother has not
been able to complete therapy in more than
22 months that the children have been in YFS
custody.
15. The respondent-mother has been
inconsistent with her mental health
treatment and psychotherapy. The respondent-
mother attended psychotherapy sessions with
Dr. Alicia Ceballos through September 2010.
The respondent-mother did not attend her
psychotherapy sessions consistently in
October and November 2010. The respondent-
mother did not see Dr. Ceballos between
November 2010 and March 2011. The
respondent-mother has not been consistent in
reporting to Dr. Castro for mental health
medication and management.
16. The respondent-mother was ordered to
complete the NOVA domestic violence program
pursuant to this Court’s order of 9 June
2010. The mother completed two sessions of
NOVA, but was terminated on 10 October 2010
for non-compliance. The YFS social worker
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obtained the respondent-mother’s
reinstatement in NOVA on 20 October 2010.
The respondent-mother was terminated from
NOVA for a second time on 7 December 2010
for non-compliance.
17. The respondent-mother was ordered by
the Court on 9 June 2010 to complete [an]
adult literacy program. The respondent-
mother has not completed [an] adult literacy
program.
18. The respondent-mother used corporal
punishment with the children when they were
in her care.
19. The respondent-mother completed
parenting education through family sessions
conducted by Traci Withrow; however, the
respondent-mother only attended and
participated in one shared-parenting visit,
although [she] was offered several shared-
parenting visits. The respondent-mother was
provided with unsupervised visitation in
December 2010, but these visits were
discontinued after [she] lost the apartment
she was living in due to lack of income.
. . . .
25. The respondent-mother has not attended
the children’s education and medical
appointments although offered by the
department.
. . . .
31. [Respondent-mother] has been . . .
earning $300 per weekend per her own
testimony for the past five months. [She]
has not provided any monies for the support
of the children to YFS or to the foster
parents.
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32. The mother has provided some small
amounts of money to the children on occasion
during visits. . . . These funds could be
considered gifts and are not signs of
actively supporting the children
financially.
. . . .
46. Nothing has changed [since this Court’s
opinion in In re B.S.O.] other than
[respondent-father] has [reentered] the
country illegally.
. . . .
49. Upon [respondent-father]’s return to
the United States in March 2012, [he]
resumed his relationship with [respondent-
mother].
50. [Respondent-father] has been providing
[respondent-mother] with a stable place to
stay since his return to Charlotte. The
evidence does not establish that [he] has an
emotional attachment to [respondent-mother,]
and they are not married.
. . . .
55. The inconsistency of the respondent
mother in complying with mental health
therapy has not changed.
56. If the children were to return to the
home of the respondent mother and
[respondent-father], [she] would again be
the primary caretaker of the children, and
that would not resolve the issue of improper
supervision that led to the three oldest
children being placed in YFS custody
approximately four years ago nor the issues
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of domestic violence that existed in her
relationships.
57. The probability of the repetition of
neglect is high in that the respondent
mother has not addressed her mental health
issues and [respondent-father] is not
willing to change his level of involvement
in the daily care of the children.
. . . .
61. [Respondent-father] has provided a
stable place to stay for [respondent-
mother], but [she] has not addressed her
mental health needs through consistent
therapy and has not completed NOVA. Her
relationship with [respondent-father] is one
of convenience and is not stable.
. . . .
66. The juveniles have been in YFS custody
for approximately four years and the
respondent mother has not addressed the
issues that led to the children being placed
in YFS custody. . . . .
To the extent respondent-mother does not contest these findings
on appeal, they are deemed to be supported by competent
evidence. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. We
address respondent-mother’s exceptions to the court’s fact-
finding below.
Challenging a portion of finding of fact 14, respondent-
mother argues that there was no evidence that she was required
to obtain mental health therapy “to establish that she could
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independently care for the children.” Respondent-mother notes
that no such purpose was explicitly articulated in her family
services agreement (“FSA”) or F.I.R.S.T.5 assessment, or by any
of her therapists.
As part of her FSA, respondent-mother agreed to submit to a
F.I.R.S.T. assessment and follow its recommendations. The
assessment resulted in respondent-mother’s referral to CMC–
Randolph for a mental health evaluation. Psychotherapist Alicia
Ceballos, PhD, evaluated respondent-mother at CMC-Randolph in
May 2011. Dr. Ceballos testified that the purpose of the
referral was to ensure respondent-mother’s compliance “with her
medication regimen, and she was to acquire positive coping
skills, especially emotion regulation skills in order to relate
to her children and her partner.”
Dr. Ceballos found that respondent-mother exhibited traits
of borderline personality disorder, including a “very intense
fear of abandonment[,]” “all or nothing thinking and functioning
out of emotions[,]” “impulsivity relating to the abuse of
alcohol, the intense anger and difficulty managing the anger[,]
and a pattern of what appeared to be instability in her
effective relationships.” Dr. Ceballos developed a treatment
5
An acronym for Families in Recovery Stay Together.
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plan for respondent-mother which included the goal of
“learn[ing] skills in order to relate better with her partner
and her children. In particular, improve her regulation of her
anger.”
Although respondent-mother’s mental health treatment was
not explicitly geared toward raising her children
“independently[,]” abundant evidence shows that her mental
health issues were inextricably linked to the conditions that
led to the children’s removal from her home and their
adjudication as neglected and dependent. Respondent-mother’s
emotional instability and unregulated anger manifested
themselves, inter alia, in her use of violence in the home with
her children and respondent-father, as well as a series of
unstable and volatile romantic relationships both before and
after respondent-father’s deportation to Mexico. In
adjudicating Yvonne neglected in May 2010, the district court
found that “[t]he primary issue” at the time of the four older
children’s adjudications “was the mother’s mental health
treatment.” The court’s orders have consistently emphasized
respondent-mother’s need to follow through with her mental
health treatment. As the uncontested findings show—
specifically, findings 15, 55, and 61—respondent-mother failed
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to do so. The ultimate relevance of this programming was
necessarily to prepare respondent-mother to properly care for
her children. Finding 14 is a reasonable short-hand summary of
this evidence.
Respondent-mother next objects to finding 18 that she used
corporal punishment with the minor children when they were in
her care. While conceding “there is evidentiary support for the
finding” as to incidents prior to the children’s removal from
her home in 2009, she contends there is no evidence that she
used corporal punishment after YFS took custody of the children.
Finding 18 does not purport to refer to corporal punishment
by respondent-mother after the children’s removal from her home.
The court was free to consider respondent-mother’s conduct
toward the children leading to their prior adjudication as
neglected. See In re Ballard, 311 N.C. 708, 713, 319 S.E.2d
227, 231 (1984) (“[I]n ruling upon a petition for termination of
parental rights for neglect, the trial court may consider
neglect of the child by its parents which occurred before the
entry of a previous order taking custody from them.”) Such
evidence was relevant in assessing the likelihood of future
neglect for purposes of N.C. Gen. Stat. 7B-1111(a)(1),
particularly where respondent-mother’s use of violence in the
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home and anger control issues were of central concern.
Respondent-mother claims the evidence does not support
findings 25 and 31 that she did not attend her children’s
medical and educational appointments or “provide[] any monies
for the support of the children to YFS or to the foster
parents.” Although we agree with respondent-mother that these
findings vary slightly from the evidence, the discrepancies are
inconsequential.
Asked about respondent-mother’s attendance at the
children’s medical and educational appointments, Ms. Peperak
testified that respondent-mother “attended one WIC appointment
and one pediatrician appointment for the girls” and just one
“school, an IEP meeting, for V[incent]” in December 2010.
Moreover, respondent-mother “never asked [Ms. Peperak] about
[the children’s] appointments[.]” When queried about her own
attendance, respondent-mother responded, “I remember I went to
some of the medical appointments for the boys. I don’t remember
the exact dates of when that happened.” The evidence thus
showed that respondent-mother evinced little interest in the
children’s appointments and for the most part did not attend
them.
Regarding respondent-mother’s monetary contributions to YFS
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and the foster parents, Ms. Peperak testified that she had never
“provided [YFS] with any money for the children’s care[,]”
despite reporting that she was earning $300 to $400 per week
selling food beginning in October 2011. At a permanency
planning hearing held on 15 March 2012, respondent-mother
confirmed that she had paid nothing toward the support of the
children, even though she was then earning at least $300 per
weekend.
Ms. Logan-Rudisill testified that respondent-mother “on
occasion” gave $10 to the girls’ foster parents and $20 to the
boys’ foster parents. Respondent-mother would also occasionally
give the children one-dollar bills. At the hearing held on
remand on 18 July 2013, respondent-mother claimed that, within
the past year, she had given the children $600 “once [when] I
saw them at McDonald’s.” On cross-examination, however,
respondent-mother explained that she “ran into” the children’s
foster mother, Ms. H. at a McDonald’s in August 2012 and that
she then bought “items for the children in August 2012 with Ms.
[H.]” In response to the next question posed by counsel,
respondent-mother confirmed that she “did not provide any
financial support for the children between March 2012 and May
2013[.]” We note that the court did find that respondent-mother
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“has provided some small amounts of money to the children on
occasion during visits. . . . These funds could be considered
gifts and are not signs of actively supporting the children
financially.”
The evidence fully supports the district court’s finding
that respondent-mother paid nothing to YFS toward the children’s
cost of care.6 While the evidence does show her payment of
occasional small sums to the foster parents, the corresponding
error in finding 32 was harmless. The court’s remaining
findings make clear that it did not base the adjudication under
N.C. Gen. Stat. § 7B-1111(a)(1) on the absence of such payments
from respondent-mother to the foster parents. See generally In
re T.M., 180 N.C. App. at 547, 638 S.E.2d at 240 (stating that
“erroneous findings unnecessary to the determination do not
constitute reversible error”).
Respondent-mother next objects to finding 56, contending
that “[t]he evidence does not show that there would be improper
supervision of the children if they were returned to the home of
the parents.” We find no merit to this claim. The evidence
shows that respondent-mother has failed to address her mental
6
The court found that YFS’s total expenditures for the five
children exceeded $315,000.
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health issues and emotional instability. She also failed to
complete domestic violence treatment at NOVA and was terminated
three times for excessive absences. Although respondent-mother
improved her parenting skills by working with child and family
psychotherapist Traci Withrow between November 2009 and November
2010, Ms. Logan-Rudisill saw her skills “decline” after
respondent-father was deported. Even after respondent-father’s
return, respondent-mother maintained a “passive” parenting style
and had difficulty managing multiple children. Overall, Ms.
Logan-Rudisill saw no improvement in respondent-mother’s
“ability to manage the five children” during her involvement in
the case.
The evidence and the district court’s findings further
reflect the tenuous nature of respondents’ relationship and
respondent-mother’s dependence on respondent-father. After
respondent-father was deported, respondent-mother resumed her
pattern of instability in her relationships and housing. In
July 2011, she disclosed to Ms. Logan-Rudisill that she had been
involved in a domestic violence incident with her then partner,
Kelvin R., and showed Ms. Logan-Rudisill her “scratches and
bruises.” Ms. Peperak testified that respondent-mother had at
least eleven different residences between December 2010 and
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March 2012 and “demonstrated a pattern of relationships not only
with boyfriends but also with roommates and friends that have
been unhealthy and have included violence.” Finally, we note
that respondent-mother does not contest the findings that
respondent-father has “[re]entered the country illegally” and
that “[h]er relationship with [him] is one of convenience and is
not stable.” Accordingly, the evidence amply supports the
court’s finding 56 that respondent-mother had not resolved the
issues of improper supervision and domestic violence that led to
the children’s removal from her home.
Respondent-mother also challenges the court’s “ultimate
finding” in finding 57 that “[t]he probability of the repetition
of neglect is high” in light of her failure to “address[] her
mental health issues” and respondent-father’s unwillingness “to
change his level of involvement in the daily care of the
children.” We believe the evidence and the court’s evidentiary
findings are sufficient to show a probability of a repetition of
neglect. More than three years after the children’s removal
from her home, respondent-mother had yet to confront the primary
issues leading to their removal. Moreover, finding 57 is
consistent with respondent-father’s testimony “that if the
children were to come back home, [respondent-mother] will be
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dedicated to their care and I would go out to work.”
Where “different inference[s] may be drawn from the
evidence, [the trial court] alone determines which inferences to
draw and which to reject.” In re Hughes, 74 N.C. App. 751, 759,
330 S.E.2d 213, 218 (1985). We conclude that the evidence and
the court’s evidentiary findings support a reasonable inference
that neglect would likely recur if the children were returned to
respondent-mother.
Respondent-mother also challenges the adjudication under
N.C. Gen. Stat. § 7B-1111(a)(1) as unsupported by the district
court’s findings of fact. However, the court found both a prior
adjudication of neglect as to each child and a high probability
of a repetition of neglect, as required. See In re Ballard, 311
N.C. at 714-15, 319 S.E.2d at 231-32. Therefore, this
assignment of error is overruled.
Having affirmed the adjudication of grounds to terminate
respondent-mother’s parental rights for neglect, we do not
address the remaining grounds found by the district court. See
In re P.L.P., 173 N.C. App. at 9, 618 S.E.2d at 246.
V. Conclusion
The petitions filed by YFS provided sufficient notice to
respondent-father to allow an adjudication of willful
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abandonment under N.C. Gen. Stat. § 7B-1111(a)(7). The evidence
and the district court’s findings support an adjudication of
grounds to terminate respondent-father’s parental rights under
N.C. Gen. Stat. § 7B-1111(a)(7), and of grounds to terminate
respondent-mother’s parental rights for neglect under N.C. Gen.
Stat. § 7B-1111(a)(1). Therefore, we affirm the order
terminating respondents’ parental rights.
AFFIRMED.
Judges CALABRIA and DAVIS concur.