Opinion
No. 07-1026.
Filed February 5, 2008.
Harnett County No. 04 J 231.
Appeal by Respondents from order entered 1 June 2007 by Judge Robert W. Bryant, Jr. in District Court, Harnett County. Heard in the Court of Appeals 7 January 2008.
Lisa Skinner Lefler for Respondent-Appellant-Father. Sofie W. Hosford for Respondent-Appellant-Mother. E. Marshall Woodall and Duncan B. McCormick for Appellee Harnett County Department of Social Services. Pamela Newell Williams for Guardian ad Litem for the minor child.
B.G. (Respondent-Mother) and J.G. (Respondent-Father) (together, Respondents) appeal from an order terminating their parental rights to the minor child, J.G. The Harnett County Department of Social Services (DSS) filed a juvenile petition on 10 December 2004 alleging that J.G. was a neglected juvenile. Upon the filing of the petition, DSS was granted non-secure custody of J.G., and J.G. was placed in foster care. The trial court adjudicated J.G. as neglected on the basis of the Respondents' consent on 11 October 2005. In its adjudication order, the trial court made the following findings:
12. a. The juvenile herein has lived in an environment injurious to his welfare when he live din [sic] a home where another child (older sibling) [L.G.] has been subjected to abuse and neglect by an adult who regularly lives in that home without that adult having received adequate treatment of the condition which led to the abusive acts upon the older sibling.
b. The parental rights of [Respondents] herein to the older sibling [L.G.] were terminated.
c. The older sibling [L.G.] was an abused child in that she suffered physical injuries by other than accidental means while in the care of [Respondents]. Those injuries included intracranial injuries (chronic bifrontal subdural hematomas), multiple bilateral pre-retinal and intra-retinal hemorrhages, a right parietal skull fracture, fractures of the 5th, 6th and 8th ribs on her right side, a fracture of the left 8th rib and bilateral metaphyseal corner fractures of both tibia bones.
d. The above injuries to the older sibling were of differing ages and were not the result of any defect of her bones. She had not suffered any injuries after being removed from the home of [Respondents].
e. The rib injuries to the older sibling were consistent with being caused by direct impact or from forceful squeezing or compression of her ribs. The injuries to her tibias were likely caused by forceful twisting or torques of those bones. The head injuries were caused by [L.G.] being shaken violently and from a forceful impact to her head.
f. No credible evidence was presented to explain the injuries to [L.G.] other than those given by Dr. Karen St. Claire and found by the court as set forth above.
g. Because of the injuries to the older sibling and the differing ages of those injuries, [J.G.] was neglected in that she lived in an environment injurious to her welfare.
h. [Respondents] acknowledge that the older sibling [L.G.] received injuries through non-accidental means; however, [Respondents] have consistently denied causing those injuries and deny knowledge of how they occurred.
In its disposition order, the trial court continued DSS's custody of J.G. and ordered Respondents to comply with certain conditions to be reunified with J.G. Specifically, the trial court ordered Respondents to have supervised visitation, cooperate with DSS, submit to scheduled and unscheduled home visits from DSS, participate in Harnett County's Family PRIDE program, undergo a psychological assessment and follow any treatment recommendations, and participate in anger management classes.
The trial court conducted a permanency planning hearing on 20 September 2006. The trial court filed its written permanency planning order on 30 January 2007, in which it ceased reunification efforts and changed J.G.'s permanent plan to adoption. In support of its decision, the trial court found that in the twenty-one months that J.G. had been in DSS custody, Respondents had failed to meet the goals outlined in the family case plan, had refused to cooperate with DSS, and had concealed from DSS the birth of a third child. The trial court also found that Respondents continued to deny responsibility for the serious injuries sustained by J.G.'s older sibling, and that Respondents had not provided a credible explanation for those injuries. The trial court further found:
There has not been an appropriate attempt on [Respondents'] behalf to cooperate with a safety plan to assure J.G.'s safety. [Respondents'] lack of candor, truthfulness and cooperation further complicates the issue of [J.G.'s] safety if placed with [Respondents]. A continuation of the plan of reunification would be considered by the court to be futile.
In a subsequent permanency planning hearing on 16 February 2007, the trial court again found "[t]here is no evidence presented to the court which would tend to show that [Respondents] have improved their parental skills so as to be able to safely parent the juveniles herein."
DSS filed a motion to terminate Respondents' parental rights on 20 November 2006. The trial court conducted a hearing on the motion on 18 May 2007, and filed a written order terminating Respondents' parental rights on 1 June 2007. Respondents appeal.
A.
Termination of parental rights is a two-step procedure. During the adjudication stage of the trial, the petitioner seeking termination must show by clear, cogent, and convincing evidence that grounds exist to terminate parental rights. See N.C. Gen. Stat. § 7B-1109(f) (2007); N.C. Gen. Stat. § 7B-1111(b) (2007). A finding of any one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111(a) is sufficient to support termination of parental rights. In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322-23 (1988). If the petitioner succeeds in establishing the existence of any one of the statutory grounds, the trial court moves to the dispositional stage, where it determines whether termination of parental rights is in the best interests of the child. See N.C. Gen. Stat. § 7B-1110(a) (2007). "`The standard of review in termination of parental rights cases is whether the [trial court's] findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the [trial court's] conclusions of law.'" In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004) (quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)). We then consider whether the trial court abused its discretion in finding termination to be in the best interests of the child. See In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).
B.
Respondent-Mother and Respondent-Father argue that the trial court erroneously terminated their parental rights on the basis of neglect pursuant to N.C.G.S. § 7B-1111(a)(1). Respondents assert that in concluding that J.G. was neglected, the trial court improperly relied upon the prior termination of Respondents' parental rights to J.G.'s older sibling, L.G. Specifically, Respondents contend that the trial court failed to consider the changed circumstances since the prior termination.
The statutory definition of "neglected juvenile" includes as a relevant consideration "whether [the] juvenile . . . lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home." N.C. Gen. Stat. § 7B-101(15) (2007). However, Respondents are correct that "the fact of prior abuse, standing alone, is not sufficient to support an adjudication of neglect." In re N.G., ___ N.C. App. ___, ___, 650 S.E.2d 45, 51 (2007). Further, where a child was removed as a newborn or infant and, consequently, was not in the home for a significant period of time, "the decision of the trial court must of necessity be predictive in nature, as the trial court must assess whether there is a substantial risk of future abuse or neglect of a child based on the historical facts of the case." In re McLean, 135 N.C. App. 387, 396, 521 S.E.2d 121, 127 (1999).
In this case, the trial court's determination of neglect was not based solely on the prior abuse of L.G. The trial court made numerous other detailed findings on the issue of neglect. For example, the trial court found that Respondents failed to substantially comply with the case plan which was designed to assure that they could provide a safe environment for J.G. Even more significant is the trial court's finding, based on expert testimony, that the continued failure of a family member to acknowledge culpability for a child's injuries would put any child living in the home at high risk for future abuse. These and other findings made by the trial court, if supported by the evidence, would have justified a conclusion that J.G. was a neglected child. We must therefore determine whether the trial court's findings are supported by clear and convincing evidence.
Respondent-Mother first asserts that there is insufficient evidence to support the trial court's finding of fact number sixteen that "[a]n older sibling [L.G.] was abused and neglected while in the care of [Respondents]." However, Respondent-Mother is precluded from challenging this finding as it is essentially the same finding made by the trial court in a 2002 order terminating Respondents' parental rights to L.G. "The doctrine of collateral estoppel operates to preclude parties `from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination.'" In re Wheeler, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987) (quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Accordingly, this assignment of error is overruled.
Respondent-Mother next challenges finding of fact number eighteen, which states that "[Respondents] failed to take or accept any responsibility for the injuries to juvenile [L.G.], they gave no explanation for the injuries to the juvenile." Respondent-Mother contends that the evidence shows that Respondents did provide an explanation for the injuries. Specifically, Respondent-Mother contends that Respondents believed that the injuries occurred while L.G. was hospitalized. However, the trial court found that Respondents' allegation that "the injuries to juvenile [L.G.] were caused at or by personnel at the hospital or through immunizations is not reasonable, conceivable or logical." (R p. 56) The trial court's finding is supported by the expert testimony of a pediatrician who testified at trial that Respondents' allegation was inconceivable and illogical. Further, we note that the trial court found that Respondents' failure to acknowledge responsibility for L.G.'s injuries greatly increased J.G.'s own risk of injury. This finding was also directly supported by expert testimony that when a child (here, L.G.) suffers abusive head trauma, and the family member who caused the injury fails to acknowledge responsibility for the injury, the incidence of recidivism greatly increases.
Respondent-Mother next contends that there was insufficient evidence to support findings number twenty-five and thirty-seven regarding Respondents' failure to comply with the family services agreement. Respondent-Mother argues that these findings are erroneous in light of Respondents' partial compliance in the form of attending an unapproved parenting class, visiting weekly with J.G., and completing psychological evaluations. However, the trial court found, and Respondent-Mother does not dispute, that Respondents failed to complete an anger management program, a "parents as teachers" program, and Harnett County's twenty-six-week intensive PRIDE parenting program or a DSS-approved alternative, as ordered by the trial court. These unfulfilled requirements of the family services plan were key components in a plan aimed at creating a safe environment for J.G. Therefore, we conclude that Respondents' failure to comply with these specific components is sufficient to support the trial court's finding that Respondents did not substantially comply with the plan.
We next address Respondent-Mother's challenge to the trial court's finding number forty-three, that Respondents were not likely to pursue additional suggested services. The trial court based its finding on a child forensic evaluation that concluded that the suggested additional services would be more invasive and require a "more active role" than the services that Respondents had already failed to fully utilize. This finding is directly supported by the testimony of the expert witness in the field of pediatrics. We therefore find that the trial court's finding is supported by the evidence, and Respondent-Mother's contention is without merit.
The above findings demonstrate that the trial court relied on a number of factors when making its determination that J.G. was neglected. These factors included, but were not limited to, the circumstances surrounding the prior termination of Respondents' rights to L.G. Further, the trial court specifically considered evidence regarding changed circumstances since the prior termination, as well as the likelihood that J.G. would suffer future neglect in Respondents' home. As set out above, we find that the trial court's findings were supported by clear, cogent, and convincing evidence. Further, we find that the trial court's conclusion that J.G. was neglected was supported by the trial court's findings of fact.
We therefore find that grounds for termination of Respondents' parental rights existed pursuant to N.C.G.S. § 7B-1111(a)(1). Because we conclude that a ground for termination has been established, we do not address Respondents' remaining arguments regarding the trial court's additional findings of fact, or the additional grounds for termination relied upon by the trial court. See In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984) (stating that a finding of one statutory ground is sufficient to support a termination of parental rights).
C.
Respondents next argue that the trial court abused its discretion by finding that termination was in J.G.'s best interests. Under N.C.G.S. § 7B-1110(a), when making a determination of whether termination is in a juvenile's best interests, a trial court must consider:
(1) The age of the juvenile[;] (2) The likelihood of adoption of the juvenile[;] (3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile[;] (4) The bond between the juvenile and the parent[;] (5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement[;] (6) Any relevant consideration.
Respondent-Mother argues that at the time DSS took custody of J.G., J.G. was in perfect health and had no injuries. Further, Respondent-Mother also notes that Respondents had made some progress since the prior termination of their rights to their first child, and neither parent suffered from mental illness or substance abuse problems. Respondent-Father reiterates Respondent-Mother's arguments, and adds that he can provide appropriate housing, and that he has tried to comply with his obligations with respect to J.G.
"An abuse of discretion occurs when the trial court's ruling `is so arbitrary that it could not have been the result of a reasoned decision.'" Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802 (1997), disc. review denied, 347 N.C. 670, 500 S.E.2d 84 (1998) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). The trial court found that J.G. had been in foster care for over two years, and that he had been placed in the same foster home as his siblings. The trial court also found that J.G. had a positive relationship with his foster family, that the likelihood of his adoption was good, and that J.G. had not had any contact with Respondents since September 2006. Further, the trial court found that terminating Respondents' parental rights would aid in the accomplishment of the permanent plan of adoption. We recognize that Respondents have offered reasons why termination would not be in J.G.'s best interests. However, in light of the factors listed in N.C.G.S. § 7B-1110(a) and the trial court's findings of fact, we cannot say that the trial court abused its discretion by reaching a contrary result.
Affirmed.
Judges HUNTER and ARROWOOD concur.
Report per Rule 30(e).