Opinion
No. COA10-148
Filed 6 July 2010 This case not for publication
Appeal by Respondent mother from order entered 13 November 2009 by Judge J. H. Corpening, II in District Court, New Hanover County. Heard in the Court of Appeals 28 June 2010.
The Lineberry Law Firm, PC, by Chas. M. Lineberry, Jr., for petitioner-appellee custodian. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Annick Lenoir-Peek, for respondent-appellant mother.
New Hanover County No. 00 JT 0297.
It is presumed that a trial judge is able to consider evidence in light of the applicable legal standard and to determine whether grounds for the termination of parental rights exist before proceeding to consider evidence relevant only to the dispositional stage. In the present case, Respondent-Mother argues that the trial court erred by failing to bifurcate the hearing to terminate her parental rights, and by improperly considering dispositional evidence during the adjudicatory stage of the proceeding. Finding no indication that the trial court applied an incorrect standard, we affirm the order terminating Respondent's parental rights.
In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986).
Penny was born on 24 April 2000 and removed from her mother's custody two months later. Based on hearings conducted in 2000 and 2001, the trial court adjudicated Penny a neglected juvenile by order entered 21 February 2002. The trial court later found that a permanent plan of reunification with Respondent was no longer in Penny's best interests, and, by order entered 28 June 2002, made a permanent placement of the child with her paternal grandparents. That decision was affirmed by this Court in an unpublished opinion on 17 June 2003. See In re Hobson, No. COA02-1117, 2003 WL 21436171 (N.C. App. June 17, 2003)(unpublished).
The pseudonym, Penney, is used to protect the identity of the child.
Penny's paternal grandparents requested a respite placement, and Petitioner agreed to take custody of the child in 2004. Petitioner is Respondent's sister and Penny's maternal aunt. Penny moved to petitioner's home in Michigan on 11 March 2004. Penny's father died shortly after she moved to Michigan. Petitioner filed a child custody action in November 2004, and was subsequently awarded sole custody of Penny. Based on a hearing conducted on 13 July 2007, the trial court suspended Respondent's right of visitation.
On 6 January 2009, petitioner filed a petition to terminate respondent's parental rights, and alleged the following grounds: (1) neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2009); (2) dependency pursuant to N.C. Gen. Stat. § 7B-1111(a)(6); and (3) willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). The verification signed by Petitioner is dated by the notary 11 July 2008. The matter came on for hearing on 28 August 2009. The trial court determined that clear, cogent, and convincing evidence existed to terminate Respondent's parental rights on the grounds of neglect and dependency. The trial court also found that termination of Respondent's parental rights was in Penny's best interests, and ordered that Respondent's parental rights be terminated. Respondent appeals.
On appeal, Respondent argues that the trial court (I) lacked subject matter jurisdiction because the petition to terminate parental rights was not properly verified; and (II) erred in terminating Respondent's parental rights when it failed to bifurcate the hearing, and when the evidence was insufficient to support termination of her parental rights.
I
Respondent first argues that the trial court lacked subject matter jurisdiction to terminate her parental rights. Respondent argues that the petition was not properly verified because the verification was signed almost six months prior to the petition's drafting and filing. Respondent contends that the improper verification violates Rule 11(b) of the North Carolina Rules of Civil Procedure.
A petition to terminate parental rights "shall be verified by the petitioner or movant[.]" N.C. Gen. Stat. § 7B-1104 (2009). "[A] violation of the verification requirement of N.C.G.S. § 7B-1104 has been held to be a jurisdictional defect per se." In re T.M.H., 186 N.C. App. 451, 454, 652 S.E.2d 1, 2, disc. review denied, 362 N.C. 87, 657 S.E.2d 31 (2007). Rule 11 of the Rules of Civil Procedure requires a verification to "state in substance that the contents of the pleading verified are true to the knowledge of the person making the verification[.]" N.C. Gen. Stat. § 1A-1, Rule 11(b) (2009).
In the present case, Respondent acknowledges that the petition was signed by an authorized individual and that the signature was properly notarized. Respondent argues, however, that because the date on the verification (11 July 2008) predates the date of filing the petition (6 January 2009), Petitioner is attempting to "verify a document that did not exist at the time of the verification[.]" Respondent points to no evidence in the record to support the assertion that the petition did not exist at the time of the verification. Indeed, such an assertion runs counter to the statement sworn to by Petitioner in the verification itself. Respondent, moreover, cites no law supporting the proposition that the trial court is divested of jurisdiction when the verification predates the petition's filing. Respondent's argument is without merit. See Skinner v. Skinner, 28 N.C. App. 412, 414-15, 222 S.E.2d 258, 260-61 (trial court erred in striking verification where no evidence impeached the statements therein), disc. review denied, 289 N.C. 726, 224 S.E.2d 674 (1976).
II
Respondent next argues the trial court erred by failing to bifurcate the hearing to terminate parental rights.
A termination of parental rights proceeding is a two-part process involving an adjudicatory phase and a dispositional phase. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). "During the initial adjudication phase of the trial, the petitioner seeking termination must show by clear, cogent and convincing evidence that grounds exist to terminate parental rights." In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5, disc. review denied, In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). If petitioner establishes the existence of any one of the statutory grounds for termination listed in N.C. Gen. Stat. § 7B-1111 (2009), the trial court moves to the dispositional phase, when it determines whether it is in the juvenile's best interests to terminate parental rights. Id.
"[S]o long as the court applies the different evidentiary standards at each of the two stages, there is no requirement that the stages be conducted at two separate hearings." Id. at 221, 591 S.E.2d at 6 (citing In re White, 81 N.C. App. 82, 344 S.E.2d 36, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986)).
Moreover, since a proceeding to terminate parental rights is heard by the judge, sitting without a jury, it is presumed, in the absence of some affirmative indication to the contrary, that the judge, having knowledge of the law, is able to consider the evidence in light of the applicable legal standard and to determine whether grounds for termination exist before proceeding to consider evidence relevant only to the dispositional stage.
In re White, 81 N.C. App. at 85, 344 S.E.2d at 38.
With regard to the order ultimately rendered, we have encouraged trial courts to "(a) issue separate orders addressing the separate components of the consolidated hearings; or (b) sub-divide a single order into independent sections addressing each component of the consolidated hearing, with each section containing its own evidentiary standard recitation, findings of fact, conclusions of law, and appropriate order." In re R.B.B., 187 N.C. App. 639, 645, 654 S.E.2d 514, 519 (2007), disc. review denied, 362 N.C. 235, 659 S.E.2d 738 (2008).
In the present case, Respondent argues that the order is one combined document, without any differentiation of the different standards of proof or subdivision within the document. Respondent argues further that the transcript shows that the trial court did not make a ruling as to grounds and best interest until the end of the hearing. Respondent concludes from this that the trial court was swayed by improper evidence and that the trial court improperly focused on dispositional factors during the adjudication stage.
With regard to the written termination order, the trial court stated the clear, cogent, and convincing evidence standard before reciting the findings of fact. See In re Church, 136 N.C. App. 654, 658, 525 S.E.2d 478, 481 (2000) (reversing trial court where order failed to state standard of proof). Findings 8, 9, and 10 are relevant to the determination of grounds for termination. Finding 11 is relevant to the determination of the best interests of the child, and is shortly followed by the trial court's conclusions of law. While the trial court could have made the order clearer by sub-dividing the order into separate sections, we are unable to conclude that the trial court erred in making its findings of fact as it did.
In delivering its ruling at the close of the evidence, the trial court clearly distinguished between the two stages of the proceeding. The trial court found by clear, cogent and convincing evidence that Petitioner had met her burden of establishing grounds existed to terminate Respondent's parental rights. The trial court then turned to "the best interest issue," and rendered an independent decision in the dispositional stage of the proceedings. Respondent provides no evidence to support her contention that the trial court was unable to consider the appropriate standard for each phase of the hearing. See In re R.B.B., 187 N.C. App. at 645, 654 S.E.2d at 519 (trial court did not err in simultaneously conducting adjudicatory and dispositional hearings).
Respondent next argues that termination of her parental rights is not supported by sufficient evidence in the record. We first address the trial court's finding of neglect.
The trial court may terminate parental rights upon a finding that the parent has abused or neglected the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1) (2009). A child is neglected if he or she
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.
N.C. Gen. Stat. § 7B-101(15) (2009). In determining neglect, the court must consider "the fitness of the parent to care for the child at the time of the termination proceeding." In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Although evidence of past neglect is admissible, "[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. "Termination of parental rights for neglect may not be based solely on past conditions which no longer exist." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997).
In the present case, Respondent argues that findings of fact nos. 8 through 10 are not supported by evidence presented at the hearing and do not reflect an accurate assessment of Respondent's current ability to care for Penny. Respondent later acknowledges that "although the findings of fact made in the order are supported, they really only show what has happened in the past and do not address sufficiently whether or not neglect would be likely to reoccur. . . ." Respondent recognizes, however, that the guardian ad litem, Beth Bryant, had interactions with Respondent during the pendency of the action. The guardian ad litem's report was introduced into evidence at trial without objection.
Respondent also argues that the trial court erred in admitting the guardian ad litem's report prior to determining that grounds existed to terminate her parental rights. Respondent's failure to object forecloses our review of any alleged error in admitting the report. See N.C. R. App. P. 10(a)(1) (2010); In re K.D., 178 N.C. App. 322, 326, 631 S.E.2d 150, 153 (2006).
At trial, the guardian ad litem testified as follows:
Q. Do you believe if [Penny] were placed back with [Respondent] that there would be a risk of neglect or [indecipherable]?
A. My — [Respondent's] inability to take responsibility for her actions or even to get past things that happened years ago, a tendency to blame everything on someone else, and her seeming lack of understanding of where [Penny] is developmentally, she often spoke of her as if she were still a baby, and primarily my concern would be her unmitigated animosity towards the rest of her family, which is the family that [Penny] now considers here [sic] family.
So, I believe it would be psychologically and emotionally devastating for [Penny] to be in a home where [Petitioner] is considered evil, because that's who she knows and loves.
The trial court also considered the orders entered in the prior adjudication of neglect, the prior determination that reunification with Respondent was not in Penny's best interest, and the prior custody determination. In its order, the trial court found that
Respondent has failed to provide proper care, supervision or discipline for the minor child since the child first came into care of [DSS] in 2000. This neglect continued through the time that [DSS] had custody of the child, the time that [the maternal grandparent] had custody of the child, and the time that the Petitioner has had the child. It is likely that this neglect will be ongoing. The nine (9) years history with the Respondent suggests that the neglect would continue through the minority of the child.
Moreover, the trial court found, based on the evidence presented by the guardian ad litem, that "Respondent still suffers from the same kinds of deficiencies outlined in previous orders." It is clear from this that the trial court did not base its determination solely on a prior adjudication of neglect, but considered also the evidence presented of current conditions and the probability of future neglect. Respondent's argument that the trial court's findings are not supported by the evidence is without merit.
Since we have determined that the trial court properly terminated Respondent's parental rights on the basis of neglect, we need not address Respondent's arguments regarding the trial court's determination of dependency as an additional ground to terminate parental rights. See N.C. Gen. Stat. § 7B-1111(a) (2009); In re J.M.W., E.S.J.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006)("A single ground under North Carolina General Statutes § 7B-1111 is sufficient to support an order terminating parental rights.").
Affirmed.
Judges ELMORE and HUNTER, Jr. concur.
Report per Rule 30(e).