An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-373
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
IN THE MATTER OF:
L.N.P.H. and C.J.E.H. New Hanover County
Nos. 11 JT 201-02
Appeal by respondent from orders entered 20 November 2012
and 14 January 2014 by Judge J. H. Corpening, II in New Hanover
County District Court. Heard in the Court of Appeals 18 August
2014.
Dean W. Hollandsworth for petitioner-appellee New Hanover
County Department of Social Services.
Ryan McKaig for respondent-appellant mother.
Parker Poe Adams & Bernstein LLP, by Jason R. Benton, for
guardian ad litem.
DILLON, Judge.
Respondent, the mother of L.H. (“Lara”) and C.H. (“Chloe”)1
(“the juveniles”), appeals from orders ceasing reunification
1
Pseudonyms.
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efforts and terminating her parental rights. After careful
review, we affirm.
I. Background
The New Hanover Department of Social Services (“DSS”)
became involved with the juveniles after Lara made statements
indicating she had been sexually abused by her step-father and
threatened with physical harm by both parents for disclosing the
abuse. On 30 August 2011, DSS took non-secure custody of the
juveniles and filed a juvenile petition alleging sexual abuse of
Lara by her step-father and neglect of Lara and Chloe, based
upon lack of proper care, supervision, and discipline, and
exposure to an environment injurious to their welfare.
On 17 November 2011, the trial court held an adjudication
and disposition hearing at which it heard testimony from Lara.
The trial court found as facts that Lara had been sexually
abused by her step-father, that during a medical examination a
foreign object was found embedded in her vagina, that seminal
fluid was found on her bed sheets, and that her step-father had
previously been convicted of indecent liberties with a minor
under the age of ten. The trial court also found that Lara’s
disclosures to her therapist regarding her sexual abuse were
consistent with the accounts she gave to law enforcement, DSS
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social workers, and a physician, and that the sexual abuse was
witnessed by Chloe, causing her emotional distress.
Additionally, the trial court found that after Lara disclosed
the sexual abuse, respondent threatened her with physical and
emotional abuse and continued to deny any knowledge of the
sexual abuse. The trial court adjudicated Lara abused and both
juveniles neglected, but denied DSS’s request to cease
reunification efforts with respondent. The trial court ordered
respondent to attend parenting classes and undergo a
psychological evaluation “that addresses her capacity to parent
her children and focus[es] on her disbelief of her daughter when
informed of the ongoing sexual abuse and her threatening to
punish for disclosure of same.”
After review hearings on 17 and 18 October 2012, the trial
court entered an order on 20 November 2012 changing the
permanent plan to adoption and ordering that DSS cease
reunification efforts with respondent. The trial court found
that the juveniles’ description of Lara’s sexual abuse was
consistent and unchanging; that respondent was aware of it and
had on more than one occasion “witnessed” it; and that she had
threatened to physically harm the juveniles if they continued to
speak of it. The trial court reviewed respondent’s
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psychological evaluation, which stated that respondent had low
cognitive functioning which could interfere with her ability to
parent, and noted the psychologist’s conclusion that if
respondent was unaware of the sexual abuse, that would indicate
that she did not have the ability to detect it or perhaps
prevent it in the future. Respondent filed timely notice to
preserve her right to appeal from the order ceasing
reunification efforts.
On 14 December 2012, DSS filed a petition seeking
termination of the parental rights of respondent and the fathers
of Lara and Chloe. The petition alleged the following grounds
to terminate parental rights: (1) neglect; (2) leaving the
juveniles in DSS custody for twelve months with no reasonable
progress to correct the conditions which led to their removal
from their home; and (3) dependency. See N.C. Gen. Stat. § 7B-
1111(a)(1),(2),(6) (2013). The trial court held hearings on 21
and 29 October 2013 on DSS’s petition, and on 14 January 2014,
entered an order terminating respondent’s parental rights on all
three grounds alleged in the petition. Respondent appeals from
the order ceasing reunification efforts and the order
terminating her parental rights.
II. Review Hearing Order
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Respondent first argues the trial court erred in ceasing
reunification efforts because she complied with her case plan
and made reasonable progress towards reunification.
Specifically, respondent contends the trial court improperly
relied on the negative testimony of the psychologist who
conducted her psychological evaluation and not the positive
testimony and progress report of her therapist. We disagree.
The trial court may authorize the cessation of efforts to
reunify children with a parent when it makes written findings of
fact to the effect that “[s]uch efforts clearly would be futile
or would be inconsistent with the juvenile’s health, safety, and
need for a safe, permanent home within a reasonable period of
time[.]” N.C. Gen. Stat. § 7B-507(b)(1) (2013). As our Supreme
Court recently held, however, a trial court’s findings of fact
“need not recite the statutory language [of N.C. Gen. Stat. §
7B-507] verbatim[,]” In re L.M.T., 367 N.C. 165, 165-66, 752
S.E.2d 453, 454 (2013), so that the ultimate task faced by this
Court when reviewing a challenge to an order authorizing the
cessation of reunification efforts is determining “whether the
trial court’s findings of fact address the substance of the
statutory requirements.” Id. at 166, 752 S.E.2d at 454.
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In this case, the trial court found as fact that (1)
respondent never testified as to why she did not “know of the
[sexual] abuse despite the consistent reports to the contrary
from both her daughters[;]” (2) the opinion of respondent’s
therapist contradicting the low cognitive functioning results
from respondent’s psychological evaluation was without merit;
(3) the court had “100% confidence” in the psychologist’s
evaluation results; (4) family therapy was unproductive; (5)
both girls disclosed the sexual abuse to respondent prior to DSS
involvement, and respondent witnessed the sexual abuse herself;
and (6) respondent “beat” Lara in response to the disclosure.
The trial court also found specifically that
[P]ursuant to North Carolina General Statutes 7B-
507(b)(1), the Department is no longer required
to make reasonable efforts in this matter to
reunify these juveniles with their mother as such
efforts clearly would be futile and would be
inconsistent with the juveniles’ health and
safety, and need for a safe, permanent home
within a reasonable period of time.
Respondent does not challenge the trial court’s findings of
fact and they are binding on appeal. Koufman v. Koufman, 330
N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Rather, respondent is
asking this Court to re-weigh the evidence and substitute our
judgment for that of the trial court. However, the trial court
“is empowered to assign weight to the evidence presented at the
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trial as it deems appropriate[,]” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996), and “[f]indings of
fact made by the trial court . . . are conclusive on appeal if
there is evidence to support them.” In re H.S.F., 182 N.C. App.
739, 742, 645 S.E.2d 383, 384 (2007) (citation and internal
quotation marks omitted). In light of the trial court’s
findings, we conclude that the court adequately addressed the
mandates of N.C. Gen. Stat. § 7B-507(b) and did not err in
ceasing reunification efforts with respondent.
III. Termination of Parental Rights
Respondent next argues that the trial court erred in
concluding grounds existed pursuant to N.C. Gen. Stat. § 7B-
1111(a)(1) (neglect) to terminate her parental rights.
Termination of parental rights cases are conducted in two
stages. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 908 (2001). At the adjudicatory stage of a termination of
parental rights hearing, the burden is on the petitioner to
prove by clear, cogent, and convincing evidence that at least
one ground for termination exists. N.C. Gen. Stat. § 7B-1109(f)
(2013); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
“Once one or more of the grounds for termination are
established, the trial court must proceed to the dispositional
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stage where the best interests of the child are considered.”
Id. Review in the appellate courts is limited to determining
whether clear and convincing evidence exists to support the
findings of fact, and whether the findings of fact support the
conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000), appeal dismissed and disc. review
denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
A. Grounds for Termination of Parental Rights
Grounds exist to terminate parental rights when the parent
has neglected the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1). A
neglected juvenile is defined as “[a] juvenile who does not
receive proper care, supervision, or discipline . . . or who
lives in an environment injurious to the juvenile’s welfare[.]”
N.C. Gen. Stat. § 7B-101 (15) (2013). Moreover, when
determining that a child is neglected, “it is relevant whether
that juvenile lives in a home where . . . another juvenile has
been subjected to abuse or neglect by an adult who regularly
lives in the home.” Id. “‘The determinative factors must be
the best interests of the child and the fitness of the parent to
care for the child at the time of the termination proceeding.’”
In re Manus, 82 N.C. App. 340, 348, 346 S.E.2d 289, 294 (1986)
(quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232
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(1984)) (emphasis in original). However, where a child has not
been in the custody of the parent for a significant period of
time prior to the termination hearing, “[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.” Ballard, 311 N.C. at 715, 319 S.E.2d at 232.
Here, the trial court concluded that respondent neglected
the juveniles and there was “ongoing neglect and a likelihood of
repetition of neglect[.]” As evidence of neglect, the trial
court found as fact:
8. That [Charles2] [(Lara’s step-father;
Chloe’s father)] had previously pled guilty
to felony Indecent Liberties with a Minor in
2003 . . . . That he was deported to Mexico
and later re-entered the United States
illegally. . . . [H]e pled guilty in August
2013 to Felony Sexual Offense in the Second
Degree and is serving a sentence of eight
(8) years. His projected release date is
May 28, 2018.
9. That this Court has previously found as a
fact that both [Lara] and [Chloe] were
threatened with physical harm by both
[respondent] and [Charles] for disclosing
the sexual abuse of [Lara]. The Court also
finds as fact that [respondent] knew that
the abuse was occurring but did nothing to
stop it. That she continues to claim she
did not know the abuse was occurring, but
based on the testimony of the children,
their therapist, and the disclosures made to
2
Pseudonym.
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various individuals including Department
social workers, therapist . . ., and the
Guardian ad Litem, this Court finds
[respondent]’s claims that she did not know
to be without merit. That [respondent] lied
to the Department, to law enforcement, and
to this Court about her knowledge of the
abuse.
10. That by her own testimony, [respondent]
claims to believe that her daughter was
sexually abused by [Charles]. That
notwithstanding this purported belief, she
maintained a relationship with [Charles] and
was not truthful with the Department or this
Court about this ongoing contact. That both
[respondent] and [Charles] went to lengths
to conceal their ongoing contact. . . . that
[respondent] lied under oath about her
continuing contact with the man who sexually
abused her daughter. That [respondent]
demonstrates a complete lack of insight into
her role in the abuse and neglect of her
daughters and her complete failure to
protect them from harm. . . .
. . . .
12. That [respondent]’s psychological
evaluation reveals low cognitive
functioning, poor insight, and compromised
problem-solving abilities. That her mental
health diagnosis, low functioning and her
demonstrated inability to protect her
children from harm render her incapable of
parenting on her own, and such incapability
will exist for the foreseeable future. . . .
13. That [r]espondent [] was linked with
mental health services designed to correct
the conditions that led to the removal of
her children. That [respondent]’s
visitation with her children never expanded
to unsupervised, and in fact had to be
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closely supervised by the Department due to
her inappropriate communication with the
children during visits. That the
Department’s efforts to reunify [respondent]
with her children were stymied by
[respondent]’s failure to be truthful with
the Department or her service providers.
That rather than take responsibility for her
actions, she actively sought to mislead the
Department, her services providers, and this
Court. . . . That as such the Court finds
that [respondent has] . . . willfully, and
not due solely to poverty, left the children
in foster care or placement outside the home
for more than twelve (12) months without
showing to the satisfaction of the Court
that reasonable progress under the
circumstances has been made in correcting
those conditions which led to the children’s
removal.
Respondent does not challenge these findings of fact and
they are binding on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d
at 731. Respondent does, however, challenge the trial court’s
finding that there is a “likelihood of [respondent] and
[Charles] exposing the children to abuse and/or neglect in the
future is high if the children are returned to their care.”
Respondent contends that she was the non-offending parent
when Lara was abused and that even though she disbelieved her
children initially, at the time of the termination hearing she
had made substantial progress in her case plan. She points out
that her therapist acknowledged her growth and testified that
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she had no concerns about her future ability to parent her
children. She claims that she has disassociated herself from
Charles and maintained stable housing and employment; therefore,
there is no likelihood of repetition of neglect. We are not
persuaded.
By focusing on the fact that she was the non-offending
parent when Lara was abused, respondent ignores her role in the
juveniles’ neglect, as she has done throughout the case. At the
termination hearing, she still maintained that she was unaware
of the sexual abuse, despite the repeated testimony from Lara
and the juveniles’ therapist that she knew and had in fact
witnessed it. Respondent also contended that she did not beat
or threaten to beat the juveniles if they disclosed the sexual
abuse, although Lara, Chloe, and the juveniles’ therapist all
testified that she beat Lara and threatened to beat both
juveniles.
Respondent also asserted that she disassociated herself
from Charles, Lara’s step-father who sexually abused her, and
she testified under oath at the termination hearing that she had
not had contact with Charles in two years. However, her
testimony is contradicted by evidence that she spoke to Charles
on the phone four months prior to the termination hearing, where
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they both discussed when he would be released and stated “Go on,
fight. Take care and hopefully everything will come out good.
All right. I love you. Take care. All right. You too. Me
too. All right. Bye.” At the termination hearing Charles
testified that he had spoken to her while in jail because “she
is [his] only family.” The DSS social worker also stated that
respondent’s roommate had told her that she had heard respondent
and Charles speak on the phone many times regarding respondent
getting the juveniles back and wanting Charles to come home.
While respondent may have been working on aspects of her
case plan by maintaining a job, a home, and attending therapy,
the unchallenged findings show that she has not addressed the
ultimate reasons both children came into foster care: her
failure to protect Lara from sexual abuse and her knowledge of
and participation in creating the injurious environment. By
refusing to acknowledge her role in the abuse and neglect of the
juveniles and maintaining a relationship with Lara’s twice
convicted sexual abuser, it is clear that if the juveniles were
returned to her there is a likelihood of repetition of neglect.
Given the unchallenged findings of fact and plenary evidence in
support of the probability of repetition of neglect, we hold the
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trial court did not err in terminating respondent’s parental
rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect).
Respondent argues further that the trial court erred in
finding evidence to support grounds pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(2) (no reasonable progress), and (6) (dependency).
We do not address those arguments, however, because a finding of
one statutory ground is sufficient to support the termination of
parental rights. In re Humphrey, 156 N.C. App. 533, 540, 577
S.E.2d 421, 426 (2003).
B. Best Interests of the Juveniles
Respondent also argues the trial court erred in determining
that termination of parental rights was in the juveniles’ best
interest, because she had made progress in her case plan and is
able and ready to care for them.
When determining whether it is in the juvenile’s best
interest to terminate the parent’s rights, the trial court is
required to make written findings regarding the juvenile’s age,
likelihood of adoption, permanent plan, bond with biological and
foster parents, and “any [other] relevant consideration.” N.C.
Gen. Stat. § 7B-1110(a) (2013). “We review the trial court’s
decision to terminate parental rights for abuse of discretion.”
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In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002)
(citation omitted).
Here, in support of its conclusion that it was in the
juveniles’ best interest to terminate respondent’s parental
rights, the trial court found as fact:
That [Lara] is nine years old . . . and
[Chloe] is nearly seven years old. . . .
That their likelihood of adoption is strong,
considering that they have been in a stable
residence for over two years with foster
parents who are committed to adopting them;
that termination of parental rights will aid
in the accomplishment of the permanent plan
of adoption for them; that some bond exists
between the Respondent-parents [(respondent
mother)] and [Charles] [Lara’s step-father;
Chloe’s father)] and the children but that
bond has been damaged by the distrust that
the children feel due to their mother’s
failure to protect them, [Charles’] sexual
abuse of [Lara], and the threats of harm
from both parents for disclosing the abuse.
. . . That there is a strong, stable, and
loving bond between the girls and their
foster parents. That [Lara] and [Chloe]
have indicated that they wish to remain with
their foster parents, and have consistently
stated that they feel “safe” with their
foster parents. That the children have been
traumatized by the abuse and neglect and
subsequent removal from their home. That
they have made tremendous progress, with the
intervention of their therapist, the
Department, and caring, stable foster
parents and removing them from this home
would be contrary to their best interests as
it would expose them to further trauma and
delay permanence for them.
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Respondent does not challenge the above findings of fact, and
they are binding on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d
at 731.
Instead, respondent contends that the trial court put undue
weight on the results of her psychological evaluation and
ignored the progress she has made in her case plan. She argues
that she is currently able to be an appropriate caregiver to the
juveniles. We are not persuaded.
Respondent is again asking this Court to re-weigh evidence,
which is the exclusive province of the trial court. See In re
Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984)
(“[W]hen a trial judge sits as both judge and juror, as he or
she does in a non-jury proceeding, it is that judge’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[.]” (quotation marks omitted)). The court’s findings
of fact “are conclusive on appeal if there is evidence to
support them.” In re H.S.F., 182 N.C. App. at 742, 645 S.E.2d
at 384 (citation and internal quotation marks omitted).
We hold the trial court properly considered the evidence
under the best interest factors, and did not rely on or
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reference the results of the psychological evaluation in making
its best interest determination. Given the substantial findings
of fact supporting the trial court’s conclusion, we cannot agree
that the trial court’s best interest determination was
“manifestly unsupported by reason.” In re A.R.H.B., 186 N.C.
App. 211, 218, 651 S.E.2d 247, 253 (2007), appeal dismissed, 362
N.C. 235, 659 S.E.2d 433 (2008). Thus, the trial court did not
abuse its discretion in concluding that it was in the juveniles’
best interest to terminate respondent’s parental rights.
Accordingly, we affirm the trial court’s orders ceasing
reunification efforts and terminating respondent’s parental
rights to Lara and Chloe.
AFFIRMED
Judge HUNTER, Robert C. and Judge DAVIS concur.
Report per Rule 30(e).
In re L.N.P.H.
Combined Opinion