In re R.B.B.

• Decision Date: 18 December 2007
• Docket Number: No. COA07-727.,COA07-727.
• Citation: 654 S.E.2d 514
• Court: North Carolina Court of Appeals
• Parties: In The Matter of R.B.B., Minor.

654 S.E.2d 514

In The Matter of R.B.B., Minor.

No. COA07-727.

Court of Appeals of North Carolina.

December 18, 2007.

Appeal by respondent from order filed 5 April 2007 by Judge William G. Stewart in Nash County District Court. Heard in the Court of Appeals 14 November 2007.

Jayne B. Norwood, Nashville, for petitioner-appellee Nash County Department of Social Services, for petitioner-appellee.

North Carolina Guardian ad Litem Program, by Pamela Newell Williams, Raleigh, for the juvenile.

Annick Lenoir-Peek, for respondent-appellant.

BRYANT, Judge.

A.C.¹ (respondent) appeals from a 5 April 2007 order of adjudication of abuse and neglect and termination of parental rights as to her minor son, R.B.B. For the reasons stated herein, we affirm.

R.B.B. was born in early 2006. In the first seven months of his life, respondent had taken R.B.B. to numerous medical appointments for wellness checkups and for physical conditions, including vomiting, colds and bleeding gums. In July 2006, Dr. Shandal Emanuel, a pediatrician, examined R.B.B. for the first time at his six-month wellness checkup. At that time, R.B.B. weighed below the fifth percentile on the pediatric growth chart after a continual decline from a normal weight at his three-month checkup. On 14 August 2006, R.B.B. had a fever and was vomiting. Respondent took him to see Dr. Emanuel who noticed R.B.B. "had a bruise on the left temple area as well as two 1/2cm ulcerated lesions on the right lower abdomen that was suspicious for a burn." Dr. Emanuel prescribed antibiotics; however R.B.B.'s condition did not improve, he continued to lose weight, and on 18 August 2006, Dr. Emanuel admitted R.B.B to the hospital for "evaluation of dehydration, fever and vomiting." While at the hospital, a chest x-ray revealed R.B.B. had broken ribs. A full skeletal survey revealed "multiple healed fractures including [right and left] healed [] spiral tibia fracture[s]."

On 18 August 2006, based on the investigation of R.B.B.'s injuries, a non-secure custody order of R.B.B. was obtained by Nash County Department of Social Services (DSS-petitioner-appellee). On 21 August 2006, DSS filed a juvenile petition alleging R.B.B. to be abused and neglected. DSS gained non-secure custody of R.B.B. on 21 August 2006 and R.B.B. was placed in foster care the next day. Based upon the Nash County Sheriff Department's investigation of R.B.B.'s injuries, respondent and her live-in boyfriend (Josh Robles) were each charged with three counts of felonious child abuse.

At a 19 September 2006 hearing, the trial court determined R.B.B. would remain in the custody of DSS. At that hearing, respondent waived future hearings to determine R.B.B.'s custody. During the subsequent three months, multiple continuances were issued for the abuse and neglect adjudication hearing. On 22 December 2006, DSS filed a motion to terminate parental rights. After entering foster care, R.B.B. gained weight began reaching developmental milestones for his age and did not sustain any broken bones. The consolidated hearing for the abuse and neglect proceeding and the termination of parental rights proceeding was held on 8 and 9 February 2007. Specifically, the trial court found:

43. R.B.B. has been in foster care since August 22, 2006 when he was released from Nash General Hospital. He was seen by his Pediatrician Dr. Emmanuel [sic] on September 12, 2006 and by that date had gained ten ounces. When the child was placed in foster care ... he could not roll over and could not sit alone [and] . . . by the age of nine months was sitting alone without support. He is now pulling up, crawling and will take a few steps if his hands are held. The child initially had no facial expression and had a flat effect. He has now "blossomed" and responds as a normal thirteen month old. He continues to gain weight, is no longer on special formula and is not experiencing gastrointestinal problems. He has had no broken bones while in foster care. He is bonded to his foster parents.

44. The Court heard and considered evidence put forth by the Respondent mother as to the steps she has taken since the child was removed from her care to demonstrate that she earnestly desires to be reunited with her child, however, the age of the child, the detailed admission of her frustration with the baby's crying, the number of injuries, the extent of the injuries, her knowledge of the danger of leaving the baby with [her boyfriend] and her insistence on continuing to do so when friends and family members encouraged her not to do so outweigh any potential benefits that this Court can find to the reunification process. The Court is equally [as] concerned by the mother's recent minimization to the mental health therapist of the seriousness of the injuries and their origin.

The trial court concluded R.B.B. to be neglected and abused and ordered respondent's parental rights terminated. From this 5 April 2007 order, respondent appeals.

Respondent argues the trial court erred by: (I) simultaneously conducting all adjudicatory and dispositional hearings related to both the abuse and neglect petition and the termination of parental rights petition; (II) failing to require DSS to use reasonable efforts for reunification; (III) failing to pursue a separate disposition other than termination of parental rights; (IV) finding and concluding respondent's parental rights should be terminated; (V) basing the termination of parental rights on a felonious child abuse charge; and (VI) finding and concluding termination of respondent's parental rights was in the best interest of R.B.B.

I & III

Respondent argues that the trial court erred by simultaneously conducting all adjudicatory and dispositional hearings related to both the abuse and neglect petition and the termination of parental rights petition. We disagree.

After an appropriate party files a juvenile petition alleging that a minor is abused, neglected, or dependent, the trial court must hold an adjudicatory hearing "designed to adjudicate the existence or nonexistence of any of the conditions alleged in [the] petition." N.C. Gen.Stat. § 7B-802 (2005). The allegations in the petition must be proved by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2005). If the trial court finds the allegations proved by clear and convincing evidence, it must issue an adjudicatory order containing an affirmative statement of the standard of proof used. N.C. Gen.Stat. § 7B-807 (2005). The trial court will then hold a dispositional hearing and has broad discretion to craft a disposition designed to serve the juvenile's best interests. N.C. Gen.Stat. §§ 7B-901,-903,-905 (2005).

Likewise, a termination of parental rights action involves a two-step process. After an appropriate party files a termination petition, the trial court must hold an adjudicatory hearing to determine whether grounds for termination exist. N.C. Gen. Stat. § 7B-1109(e) (2005); see N.C. Gen.Stat. § 7B-1111(a) (listing the various findings that may serve as grounds for termination). A finding that the parent has either abused or neglected the juvenile may serve as grounds for termination. Id. However, the trial court may make such a finding in the N.C.G.S. § 7B-1109 adjudicatory hearing without having previously adjudicated the juvenile abused or neglected in a prior abuse, neglect, or dependency action. See In re Faircloth, 153 N.C.App. 565, 571, 571 S.E.2d 65, 69 (2002) ("An adjudicatory hearing on abuse and neglect allegations is not a condition precedent to a termination hearing.... [S]uch a hearing on abuse and neglect may well [be] merely redundant with parts of [a] termination hearing."). The burden is on the petitioner to prove the allegations of the termination petition by clear, cogent, and convincing evidence. N.C.G.S. § 7B-1109(f) (2005). If the trial court finds the allegations proved by clear and convincing evidence, it must issue an adjudicatory order containing an affirmative statement of the standard of proof used. See In re Church, 136 N.C.App. 654, 657, 525 S.E.2d 478, 480 (2000) (holding "we read [section N.C.G.S. § 1109(f)] to require the trial court to affirmatively state in its order the standard of proof utilized in the termination proceeding"). The trial court then proceeds to the disposition stage where it must determine whether termination of parental rights is in the best interests of the child. N.C. Gen.Stat. § 7B-1110 (2005). If the trial court so determines, it may issue a termination of parental rights order. Id.

While the juvenile code contemplates two different stages in a termination action, it does not explicitly require that the two stages be conducted at two separate hearings. Indeed, our Court has previously held that a trial court may combine the N.C.G.S. § 7B-1109 adjudicatory stage and the N.C.G.S. § 7B-1110 dispositional stage into one hearing, so long as the trial court applies the correct evidentiary standard at each stage and the trial court's orders associated with the termination action contain the appropriate standard-of-proof recitations:

[A]lthough the court is required to apply different evidentiary standards at each of the two stages, we discern no requirement from the statutes . . . that the stages be conducted at two separate hearings. 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. 82, 85, 344 S.E.2d 36, 38 (1986); see In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6 (2004) ("However, so long as the [trial] court applies the different evidentiary standards at each of the two...