In Re Pope , 144 N.C. App. 32 ( 2001 )

GREENE, Judge.

Rachel Emily Pope (Respondent) appeals a judgment filed 9 May 2000 terminating her parental rights as the mother of Eva Leonia Grace Pope (the minor child).

The record shows that on 1 June 1999, the Buncombe County Department of Social Services (DSS) filed a petition, in pertinent part, to terminate the parental rights of Respondent pursuant to N.C. Gen. Stat. § 7A-289.32(2)¹ (neglect) and N.C. Gen. Stat. § 7A-289.32(3)² (willfully leaving minor child in foster care for more than 12 months). The trial court held hearings on the petition on 22 October 1999, 16 November 1999, and 17 November 1999. Subsequent to the hearings, the trial court made the following pertinent findings of fact:

12. That [DSS] initially filed a juvenile petition February 26, 1998, alleging that the minor child was an abused and neglected child. That the allegations of abuse were based on the physical condition of the minor child, who was then 9 months old and had been admitted to Memorial Mission Hospital on February 23, 1998, for failure to thrive. At the time of admittance to the hospital, the minor child weighed only a little over 12 pounds; she was below the 5th percentile for her age; and, presented as a typical 3 month old instead of 9 months old. The minor child could not sit up independently, would not attempt to push herself up if lying on her stomach, had difficulty grasping objects, and she continually held her arms in an upright position at a 90 degree angle.

13. That the allegations of neglect in the original juvenile petition were that the minor child had not been examined by a pediatrician since her birth but had only seen chiropractors and naturopatic doctors, and that the hospital physicians had ruled out medical reasons for the [minor] child’s condition, indicating that the cause of the [minor] child’s condition was the failure of [Respondent] to provide proper care for the [minor] child.

14. That on April 23, 1998, [Respondent] consented to an adjudication of neglect in that the minor child did not receive the proper care and supervision from [Respondent], and did not receive the necessary medical care from [Respondent]. In the adjudication^ [Respondent] consented to all the allegations contained in the juvenile petition, and stated to the court that she did not understand the extent of the minor child’s physical needs, but that she now understands those needs since reading the medical records.

18. That Ms. Foster [the sister of Respondent,] is a resident of Buncombe County, North Carolina. That Ms. Foster returned to Raleigh in February, 1998, at which time [Respondent] allowed Ms. Foster to bring the minor child back with her to Buncombe

County for a visit. That Ms. Foster was extremely concerned about the minor child’s condition in that the child was listless; she la[y] without moving; her arms were raised over her head at a 90 degree position; and she was emaciated. Due to her concerns, Ms. Foster took the minor child to see Dr. Sechlar at Asheville Pediatrics on February 23, 1998, at which time Dr. Sechlar immediately admitted the child to Memorial Mission Hospital for failure to thrive.

20. That while the [minor] child was hospitalized, the hospital staff was concerned about [Respondent’s] behaviors. That the staff attempted to discuss with [Respondent] the [minor] child’s condition and needs, but [Respondent] would respond by talking about her ([Respondent’s]) problems. [Respondent] was never willing to discuss or acknowledge that [the minor] child was starving to death at the time the [minor] child was admitted to the hospital.

21. That the minor child was starving to death before [Respondent’s] eyes. Nevertheless, [Respondent] testified at this hearing that the minor child was fine, healthy, happy, well fed, and reaching all her developmental milestones until Ms. Foster took the child to Buncombe County, and that the child’s problems all began due to th[e] change in her environment. [Respondent] testified that all the problems were the fault of Ms. Foster, and the only problem [Respondent] needed to fix was to get the minor child a pediatrician.

22. That [DSS] provided many services to [Respondent] to aid her in correcting the conditions which led to the removal of the minor child from her care. [Respondent] has had a psychological evaluation; has been referred to and attended Dialectic Behavior Therapy sessions at Blue Ridge Center; has participated in and completed parenting classes; and has visited with the child on a regular basis. That [Respondent] has made no progress even with all these services, and even after 21 months [Respondent] is still insisting that it was solely Ms. Foster’s fault that the minor child is in the custody of [DSS]. That [Respondent] has no insight as to the reason that [DSS] became involved in this case, and still lacks any understanding of the seriousness of [the minor] child’s condition in February, 1998.

23. That [Respondent] had a psychological evaluation done on April 23,1998, and a copy of said evaluation was admitted into evidence and is incorporated herein by reference as though fully set out herein. That [Respondent] has a personality disorder with seriously disturbed thinking. Her psychological condition is difficult to change; and change would require that [Respondent] be highly motivated to change; and that she acknowledge her problems and work diligently in therapy to change her thinking. That without effective treatment for her personality disorder, there would be a high risk that [Respondent] would continue to treat the minor child as she has done in the past. That [Respondent] has a very high IQ and is able to function well to meet her own needs.

24. That [Respondent] testified at this hearing that she did not agree with the psychological evaluation; denied that she had any disturbed thinking; denied that she had done anything to place the minor child at risk; testified that the only reason [DSS] had taken custody was due to the fault of Ms. Foster; and testified that the only thing she would change if the [minor] child was returned to her care would be to get the [minor] child a pediatrician. That [Respondent] testified!,] . . . “I’ve racked my brain trying to figure out” why the minor child was starving to death in February, 1998, but did not know why that had occurred.

25. That [Respondent] has been provided supervised visits twice a week at [DSS]. That these visits were supervised by the social worker, who used these supervised visits to show [Respondent] appropriate child care skills. That the social worker requested that [Respondent] be prepared to feed the [minor] child at these visits, and had referred [Respondent] to nutritional services so she could learn what and how to feed [the minor] child. Despite these efforts, [Respondent] continued to try [to] feed the [minor] child inappropriately both in the manner she tried to feed her and the food she brought to feed the [minor] child. Even after being told that the [minor] child could have an allergic reaction to strawberries, [Respondent] brought strawberries to feed the [minor] child. Further, [Respondent] continued to place the [minor] child in risky situations; specifically, on one occasion!,] [Respondent] stood on a toddler’s chair, placed the minor child on a window sill and let go of the [minor] child. That the room this occurred in had cement floors. That the social worker had to intervene to tell [Respondent] that this was dangerous, but [Respondent] did not appear to care or understand. That the social worker had to instruct [Respondent] to take the [minor] child down from the windowsill.

31. That it is clear to the court that [Respondent] dearly loves [the minor child], and that [Respondent] has made within the limits of her ability a sincere effort to be reunited with [the minor child] and to comply with court orders. However, there is no evidence at all that with all her efforts [Respondent] is now or will ever be able to provide for [the minor child] in a way that would allow [the minor child] to grow up healthy, happy and well developed; nor is there any evidence that would give this court the hope that [Respondent] could in the near future make the changes necessary to allow the [minor] child to be placed back with [Respondent] safely.

The trial court then made the following pertinent conclusion of law:

3. That the Court finds by clear, cogent and convincing evidence that grounds exist to terminate the parental rights of [Respondent] pursuant to N.C.G.S. 7B-llll[(a)](l) in that she has neglected the minor child when the minor child was placed into the custody of [DSS], she ha[s] continued to neglect the minor child while the [minor] child has been in the custody of [DSS] and it is reasonably probable that she would continue to neglect the minor child if she were returned to her care[.]

The trial court then ordered the termination of Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-llll(a)(l) (neglect), N.C. Gen. Stat. § 7B-llll(a)(2) (willfully left in foster care), and N.C. Gen. Stat. § 7B-llll(a)(3) (willfully failed to pay support).

The dispositive issue is whether the trial court’s findings of fact support a conclusion of law that there is a probability of repetition of neglect if the minor child were returned to Respondent.³

Respondent argues “the trial court erred when it concluded that [Respondent] would continue to neglect the minor child when [Respondent] had complied with all of the services recommended and had made good progress in therapy.” We disagree.

Neglect, within the meaning of N.C. Gen. Stat. § 7B-101(15), is one of the grounds which can support the termination of parental rights. N.C.G.S. § 7B-llll(a)(l) (1999). To prove neglect in a termination case, there must be clear and convincing evidence: (1) the juvenile has not, at the time of the termination proceeding, “receive[d] proper care, supervision, or discipline from the juvenile’s parent... or ... is not provided necessary medical care,” N.C.G.S. § 7B-101(15) (1999); In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984); and (2) the juvenile has sustained “some physical, mental, or emotional impairment... or [there is] a substantial risk of such impairment as a consequence of [such] failure,” see In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993). If there is no evidence of neglect at the time of the termination proceedings, however, parental rights may nevertheless 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 the parent. Ballard, 311 N.C. at 716, 319 S.E.2d at 232. Thus, the petitioner need not present evidence of neglect subsequent to the prior adjudication of neglect. See In re Caldwell, 75 N.C. App. 299, 302, 330 S.E.2d 513, 516 (1985).

In this case, Respondent did not have custody of the minor child at the time of the termination proceedings. The trial court, therefore, did not make any findings the minor child was neglected at the time of the termination proceedings. The trial court, however, made findings there had been a previous adjudication of neglect in 1998. The 1998 adjudication of neglect was based on findings the minor child “was starving to death” while in Respondent’s custody and suffered from “failure to thrive”; “hospital physicians had ruled out medical reasons for the [minor] child’s condition, indicating that the cause of the [minor] child’s condition was the failure of [Respondent] to provide proper care for the [minor] child”; and Respondent did not seek medical care for the minor child. Although Respondent utilized many services provided by DSS subsequent to the 1998 adjudication of neglect, the trial court found as fact Respondent “made no progress even with all these services” and Respondent “still lacks any understanding of the seriousness of [the minor] child’s condition in February, 1998.” The trial court also found as fact that at the time of the termination hearing, Respondent

denied that she had done anything to place the minor child at risk; testified that the only reason [DSS] had taken custody was due to the fault of Ms. Foster; and testified that the only thing she would change if the [minor] child [were] returned to her care would be to get the child a pediatrician.

Additionally, the trial court found as fact that during Respondent’s supervised visitations with the minor child, Respondent continued “to try and feed the [minor] child inappropriately both in the manner she tried to feed her and the food she brought to feed the [minor] child.” These findings of fact support a conclusion of law that if the minor child were returned to Respondent’s custody, there would be a probability the minor child would not receive proper care from Respondent or proper medical care, and the minor child would sustain physical and/or mental impairment as a result of such failure. It follows that if the minor child were returned to Respondent’s custody, there would be a probability of repetition of neglect.⁴ Accordingly, the trial court’s 9 May 2000 judgment, terminating Respondent’s parental rights pursuant to N.C. Gen. Stat. § 7B-llll(a)(l), is affirmed.⁵

Affirmed.

Judge TIMMONS-GOODSON concurs. Judge TYSON dissents.

1 . Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999. See now § 7B-llll(a)(l) (1999).

2 . Repealed by Session Laws 1998-202, s. 5, effective July 1, 1999. See now § 7B-llll(a)(2) (1999).

3 . Although Respondent assigns error to the trial court’s findings of fact numbers 12 through 26, Respondent does not argue in her brief to this Court that these findings of fact are not supported by clear and convincing evidence in the record. Thus, this Court is bound by the trial court’s findings of fact. See Baker v. Log Systems, Inc., 75 N.C. App. 347, 350-51, 330 S.E.2d 632, 635 (1985) (where appellant does not bring forth in her brief exceptions to findings of fact, she is deemed to have abandoned them under Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure).

4 . We note that the trial court’s conclusion of law states “it is reasonably probable that [Respondent] would continue to neglect the minor child if she were returned to her care.” (Emphasis added.) Although the proper legal standard for determining whether parental rights should be terminated under section 7B-llll(a)(l) is whether there is a probability of repetition of neglect, see Ballard, 311 N.C. at 716, 319 S.E.2d at 232, this error is harmless because the trial court’s findings of fact support a legal conclusion that there is a probability of repetition of neglect, see In re Bluebird, 105 N.C. App. 42, 51, 411 S.E.2d 820, 825 (1992) (trial court’s failure to correctly state in its order the specific statutory ground for termination is harmless error when the findings of fact support a legal conclusion that grounds for termination exist).

5 . Because the trial court properly terminated Respondent’s parental rights under section 7B-llll(a)(l), we need not address Respondent’s arguments in her brief to this Court that her parental rights were improperly terminated pursuant to section 7B-1111(a)(2) and section 7B-llll(a)(3). See In re Davis, 116 N.C. App. 409, 413, 448 S.E.2d 303, 305, disc. review denied, 338 N.C. 516, 452 S.E.2d 808 (1994).