In re B.A.J., ___ N.C. App. ___ (September 17, 2024)

Held: 
Affirmed
  • Facts: Juvenile was adjudicated neglected based on the severe physical abuse and torture of an older half-sibling (juvenile’s half-siblings are not the subject of this TPR) for which Mother was charged with felony child abuse. The court ordered custody to DSS and did not order reunification efforts be made after finding Mother and Father (who is the father of the juvenile subject to this TPR) committed or encouraged chronic physical abuse and torture of the sibling which the juvenile observed. The trial court adopted a primary plan of adoption. Several permanency planning hearings were held with findings showing the parents were not making progress on their case plans, were not cooperating with DSS or the GAL, and refused to admit or acknowledge the abuse and neglect they imposed on the juveniles. Mother and Father had another child and continued to reside together. Father was later incarcerated following a severe domestic violence incident with Mother where she was struck on the head with a gun and choked, and the home was shot into at least eight times. Mother failed to file a DVPO, continued to engage in calls with Father from jail, and stated her intent to reunify the family. DSS filed a motion to terminate the parents’ rights based on neglect and willful failure to make reasonable progress to correct the conditions which led to the child’s removal. Mother appeals the adjudication, arguing seven adjudicatory findings are unsupported by the evidence and the remaining findings are insufficient to adjudicate the TPR grounds. Mother’s and Father’s appeal of the disposition is summarized separately.
  • The adjudication of termination grounds is reviewed to determine whether the conclusions of law are supported by adequate findings and whether the findings are supported by clear, cogent, and convincing evidence. Conclusions of law are reviewed de novo.
  • The trial court can take judicial notice of findings made in prior orders “even when those findings are based on a lower evidentiary standard because where a judge sits without a jury, the trial court is presumed to have disregarded any incompetent evidence and relied upon the competent evidence.” Sl. Op. at 8 (citation omitted). However, judicially noticed prior court orders and reports alone are insufficient to conclude a TPR ground exists. There must be some oral testimony at the hearing and an independent determination of the evidence presented. “[A]ppellate courts may not reweigh the underlying evidence presented at trial.” Sl. Op. at 11 (citation omitted).
  • Challenged findings are supported by clear, cogent, and convincing evidence. In addition to taking judicial notice of findings of fact in the dispositional and permanency planning orders (without objection), the trial court received social worker testimony, the GAL report, and twenty exhibits at the TPR hearing regarding Mother’s progress and current circumstances which demonstrate that the court made an independent determination regarding the evidence presented. The court properly admitted social worker testimony of the social worker’s personal recollections of Mother’s statements made in a previous permanency planning hearing. The social worker was present at the hearing and heard Mother’s statements regarding her engagement and truthfulness in therapy. Mother conceded the statements were admissible as statements of a party.  The weight given to this testimony cannot be re-examined by the appellate court. The social worker testimony is not the same as a court relying on its own personal memory of a prior proceeding, which is not evidence a court may consider. The social worker’s testimony is competent evidence.
  • A trial court may infer that a parent’s answer would be damaging to their claims when the parent invokes their Fifth Amendment right in a civil proceeding. A parent may not use the right as “both a shield and a sword”. Sl. Op. at 13 (citation omitted). The trial court was permitted to draw an adverse inference against Mother for invoking the Fifth Amendment and refusing to answer questions at prior hearings relating to the parents’ acts of torture and physical abuse. Rejecting Mother’s argument that the TPR was based solely on her refusal to testify, the court held that the unchallenged, binding findings on appeal show the trial court did not terminate Mother’s parental rights solely because of her refusal to answer questions about the parents’ torture and abuse at prior hearings.
  • G.S. 7B-1101(a)(1) allows for the termination of a parent’s rights if the parent has neglected juvenile as defined in the Juvenile Code. G.S. 7B-101(15) defines a neglected juvenile to include a juvenile whose parent “ ‘[d]oes not provide proper care, supervision, or discipline[,]’ or ‘[c]reates or allows to be created a living environment that is injurious to the juvenile’s welfare.’ ” Sl. Op. at 14-15, quoting G.S. 7B-101(15)(a), (e). The circumstances of neglect “must exist at the time of the termination hearing.” Sl. Op. at 15. When the child and parent have been separated for a period of time, neglect can be established by evidence of past neglect and the likelihood of future neglect by the parent. Failure to make progress on the case plan or to show behavioral changes necessary to ensure the safety of the juvenile can support a conclusion that there is a likelihood of future neglect.
  • The findings support the conclusion that the juvenile was previously adjudicated neglected and there was a likelihood of future neglect if the child were returned to Mother’s care. Though Mother completed components of her case plan, including DV services, mental health treatment, and parenting classes, and demonstrated that she had employment and housing at the time of the hearing, Mother did not admit or recognize her role in the juvenile and his siblings’ abuse or neglect, acknowledge the impact of the abuse or neglect on her children, or show that she was able to rehabilitate herself from the circumstances that caused the juvenile’s neglect. Mother continued to engage in a violent relationship with Father, chose not to file a DVPO after a severe domestic violence incident with Father, failed to be honest with her therapist about the parents’ severe abusive and neglectful behavior that led to the juvenile’s removal, and had expressed her intent to reunify the family in the home together with Father and their younger child despite the court concluding Father committed acts of physical and emotional abuse, including torture, on the children. At two years old and not yet potty-trained, there is a substantial risk that the juvenile’s bed wetting could result in the parents’ severe and torturous discipline used against the half-sibling that was the reason for the juvenile entering DSS. The trial court did not err in adjudicating the ground of neglect.
Category:
Termination of Parental Rights
Stage:
Adjudication
Topic:
Neglect
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