{ "id": 8471708, "name": "IN THE MATTER OF: V.L.B.", "name_abbreviation": "In re V.L.B.", "decision_date": "2005-03-01", "docket_number": "No. COA04-219", "first_page": "679", "last_page": "687", "citations": [ { "type": "official", "cite": "168 N.C. App. 679" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "449 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "915", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523888 ], "year": 1994, "pin_cites": [ { "page": "8", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0001-01" ] }, { "cite": "565 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "246", "parenthetical": "stating \"a finding of any one of [the nine] grounds is sufficient to support the termination of parental rights\"" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080092 ], "year": 2002, "pin_cites": [ { "page": "288", "parenthetical": "stating \"a finding of any one of [the nine] grounds is sufficient to support the termination of parental rights\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0286-01" ] }, { "cite": "562 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128827 ], "year": 2002, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0452-01" ] }, { "cite": "564 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "602" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079405 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "98" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0094-01" ] }, { "cite": "527 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "735" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092737 ], "year": 2000, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0207-01" ] }, { "cite": "555 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "664", "parenthetical": "quoting N.C. State Bar v. Harris, 137 N.C. App. 207, 218, 527 S.E.2d 728, 735 (2000)" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379604 ], "year": 2001, "pin_cites": [ { "page": "355", "parenthetical": "quoting N.C. State Bar v. Harris, 137 N.C. App. 207, 218, 527 S.E.2d 728, 735 (2000)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0349-01" ] }, { "cite": "323 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526281 ], "year": 1984, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0118-01" ] }, { "cite": "591 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "6", "parenthetical": "quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 215", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8916071 ], "year": 2004, "pin_cites": [ { "page": "221", "parenthetical": "quoting In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d 754, 758 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0215-01" ] }, { "cite": "567 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248513 ], "year": 2002, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0001-01" ] } ], "analysis": { "cardinality": 716, "char_count": 19632, "ocr_confidence": 0.734, "pagerank": { "raw": 1.5618459363124177e-07, "percentile": 0.677070362017245 }, "sha256": "ff363bd47ac704dc2def945b8da3dca345827018fb4b6970aac30b1be6ed01df", "simhash": "1:a1eb1a0e37ce0d96", "word_count": 2937 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "IN THE MATTER OF: V.L.B." ], "opinions": [ { "text": "CALABRIA, Judge.\nA.B. (\u201crespondent-mother\u201d) and K.B. (\u201crespondent-father\u201d) (collectively \u201crespondents\u201d) appeal an order of the Burke County District Court terminating their parental rights to the minor child, V.L.B. We affirm.\nThe evidence indicates the termination of parental rights issues in this case arose after the Burke County Department of Social Services (\u201cDSS\u201d) substantiated a report that respondent-mother was living in a house without electricity and that the State of Michigan had terminated respondents\u2019 parental rights to their other children, principally due to abuse committed by respondent-father and respondent-mother\u2019s unwillingness to remain separated from him. Respondents moved from Michigan to North Carolina in June 2002 on V.L.B\u2019s due date. V.L.B. was born approximately one week later on 10 June 2002. She was the seventh child born to respondent-mother and the fifth born to respondents. On 17 June 2002, seven days after birth, V.L.B. was released from the hospital and immediately placed in the custody of DSS. Subsequently, V.L.B. was placed in a foster-to-adopt home under the supervision of DSS. On 15 August 2002, all parties consented to a dependency adjudication based on the State of Michigan\u2019s prior terminations of respondents\u2019 parental rights to their other children, respondents\u2019 psychological diagnoses, and respondents\u2019 lack of psychological treatment. The trial court continued disposition until current psychological evaluations could be completed.\nThe evidence indicates respondents received psychological evaluations on 16 September 2002. Respondent-mother\u2019s psychological evaluation revealed she had: (1) \u201ca very high level of anxiety and tension[,] ... to [a] degree that her ability to concentrate and attend [appeared] significantly compromised\u201d; (2) \u201cdifficulty with anger management\u201d; (3) \u201clow frustration tolerance [and] poor impulse control\u201d; (4) \u201cmany characteristics consistent with persons who have been found substantiated for child abuse\u201d; and (5) \u201c[a] significant likelihood of high levels of anxiety, depression and loss of emotional and behavioral control.\u201d The evaluating psychologist\u2019s clinical impression was that she suffered from an adjustment disorder with anxiety and a borderline personality disorder. The psychologist concluded:\nA review of DSS records, previous psychological evaluations and current circumstances do not provide a positive prognosis for [respondent-mother\u2019s] . . . ability to care for [V.L.B.] Many of the circumstances that led to the termination of parental rights of her children in Michigan continue currently. [She] continues to have chronic mental health problems, as well as more acute anxiety problems. Although she expressed interest in change, her personality problems are not easily amenable to change.\nRespondent-mother met with a counselor one time shortly after giving birth to V.L.B. but sought no further help for her mental health problems and testified that she did not need mental health treatment.\nRespondent-father\u2019s psychological evaluation revealed he had: (1) \u201cchronic mental illness, which [had] not adequately responded to medication\u201d; (2) symptoms of depression; (3) \u201cspeech processes [that were] tangential and circumstantial . . . [and] difficulty answering simple questions\u201d; (4) poor concentration and a high level of dis-tractibility; (5) a history of intermittent psychiatric and psychological treatment but had \u201cnot been able to follow through with a long course of treatment\u201d; (6) a brain injury from a 1999 car accident that exacerbated his mental illness; and (7) a September 2001 commitment to an inpatient psychological institution for threatening to assault respondent-mother. The evaluating psychologist\u2019s clinical impression was that he suffered from psychosis not otherwise specified and personality disorder not otherwise specified with Schizotypal features. Additionally, his record from prior evaluations indicated bipolar disorder, but he showed no significant signs of bipolar disorder in this evaluation. The psychologist concluded:\nBased on the previous evaluations and the current information, it does not appear that [respondent-father] has made any progress [between] the time . . . [his] parental rights [were] terminated [to the other children and this evaluation]. It\u2019s unlikely that he would be capable of constructively parenting an infant at this time, and there are no recommendations, given this finding.\nRespondent-father\u2019s physical condition, as reported by his physician, included a diagnosis of type II diabetes. It appears respondent-father\u2019s physician considered his diabetes in conjunction with his mental illness and memory problems and recommended he receive \u201cround-the-clock care.\u201d\nAfter reviewing the psychological evaluations, the trial court entered an order ceasing reunification efforts and ordered adoption as the permanent plan for V.L.B. On 27 March 2003 and again on 17 July 2003, the trial court reviewed the permanent plan and entered orders maintaining adoption as the permanent plan for V.L.B. On 22 September 2003, a termination hearing was held, and all parties were present with representation, including respondent-mother\u2019s guardian ad litem and respondent-father\u2019s guardian ad litem. At this hearing, the trial court found the parental rights of respondents with respect to their other children had been terminated involuntarily by a court of competent jurisdiction, and although both had the willingness, respondents lacked the ability to establish a safe home for V.L.B. Therefore, the trial court concluded sufficient grounds existed for termination of respondents\u2019 parental rights under N.C. Gen. Stat. \u00a7 7B-llll(a)(9) (2003). The trial court then determined the best interests of V.L.B. would be served by terminating respondents\u2019 parental rights. Respondents appeal.\nA proceeding to terminate parental rights consists of two stages: (1) the adjudicatory stage, under N.C. Gen. Stat. \u00a7 7B-1109 (2003), and (2) the dispositional stage, under N.C. Gen. Stat. \u00a7 7B-1110 (2003). In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166, 169 (2002). At the adjudicatory stage, \u201cthe petitioner must show by \u2018clear, cogent and convincing evidence\u2019 the existence of one or more of the [nine] statutory grounds for termination of parental rights [enumerated in N.C. Gen. Stat. \u00a7 7B-1111 (2003)].\u201d Id. (quoting N.C. Gen. Stat. \u00a7 7B-1109(f)). Accordingly, in reviewing this stage, we must determine \u201c \u2018whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.\u2019 \u201d 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)). \u201c \u2018Clear, cogent and convincing describes an evid\u00e9ntiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.\u2019 And it \u2018has been defined as evidence which should fully convince [the finder of fact].\u2019 \u201d In re Nesbitt, 147 N.C. App. 349, 355, 555 S.E.2d 659, 664 (2001) (quoting N.C. State Bar v. Harris, 137 N.C. App. 207, 218, 527 S.E.2d 728, 735 (2000)). If the trial court finds one or more of the nine statutory grounds for termination, \u201cit proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.\u201d In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). At the dispositional stage, \u201cthe court shall issue an order terminating the parental rights, unless it... determines that the best interests of the child require otherwise.\u201d In re Matherly, 149 N.C. App. 452, 454, 562 S.E.2d 15, 17 (2002). \u201cWe review the trial court\u2019s decision to terminate parental rights for abuse of discretion.\u201d Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602.\nRespondents assert the trial court erred at the adjudicatory-stage by concluding that grounds existed under N.C. Gen. Stat. \u00a7 7B-llll(a)(9) to terminate their parental rights. Under N.C. Gen. Stat. \u00a7 7B-llll(a)(9), a trial court may terminate parental rights when \u201c[t]he parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home.\u201d\nRespondents do not dispute that their parental rights to their other children were terminated by a court of competent jurisdiction. Rather, respondents argue the trial court\u2019s finding that they lacked the ability to establish a safe home for V.L.B. was not supported by clear, cogent, and convincing evidence. We disagree. According to respondent-mother\u2019s psychological evaluation, she suffered from \u201cchronic mental health problems[,]\u201d specifically depression, high levels of anxiety and tension, a low frustration tolerance, poor impulse control, and anger management difficulties, all of which would significantly affect her ability to concentrate and attend to the needs of V.L.B. Moreover, her belief that she did not need mental health treatment and her failure to pursue treatment compounded her problems. Furthermore, at the time of the hearing, respondent-mother had been, and intended to continue, personally caring for respondent-father, who, as detailed above, suffered from \u201cchronic mental illness[,]\u201d memory problems, and type II diabetes, which necessitated that he receive \u201cround-the-clock care\u201d and greatly impaired his ability to care for V.L.B. Accordingly, we hold, the following evidence constituted clear, cogent, and convincing evidence supporting the trial court\u2019s finding that respondents lacked the ability to establish a safe home for V.L.B.: (1) the chronic nature of respondents\u2019 respective mental health conditions; (2) the severity of respondent-father\u2019s mental and physical health problems; (3) his need for a full-time care provider; (4) respondent-mother\u2019s intention to continue providing this care for him; and (5) the stress respondent-father\u2019s mental and physical health problems caused respondents, as evidenced by the daily arguments to which both admitted during their respective psychological evaluations.\nNonetheless, respondents contend the psychological evaluations performed in September 2002 could not have constituted clear, cogent, and convincing evidence of their mental health on 22 September 2003, the date of the termination hearing, especially because respondent-father appeared slightly more stable due to his most recent therapy. However, the severity and chronic nature of respondent-father\u2019s mental illness, as described in the psychological evaluation, constituted clear, cogent, and convincing evidence that respondent-father continued to have debilitating mental health issues despite the fact he appeared somewhat more stable on the date of the hearing. Additionally, although the trial court also relied on a September 2002 psychological evaluation for respondent-mother, the persistence of her personality problems characterized in her psychological evaluation as \u201cnot easily amenable to change[,]\u201d together with her lack of mental health treatment, constituted clear, cogent, and convincing evidence that her mental health problems had not changed significantly since the evaluation. Accordingly, the trial court did not err by relying on their 2002 psychological evaluations in assessing the severity and chronic nature of respondents\u2019 respective mental health conditions. Nor did the trial court err by concluding, based on respondents\u2019 history, that they did not have the ability to provide a safe and appropriate home for the minor child.\nRespondents next assert that absent clear, cogent, and convincing evidence of a probability that past patterns of abuse or neglect would recur, the trial court had insufficient grounds upon which to terminate their parental rights. In essence, respondents contend a finding of abuse or neglect under N.C. Gen. Stat. \u00a7 7B-llll(a)(l) is a prerequisite to terminating parental rights based on N.C. Gen. Stat. \u00a7 7B-llll(a)(9). As mentioned above, however, a trial court may terminate a respondent\u2019s \u201cparental rights upon a finding of one or more of the [nine statutory grounds].\u201d N.C. Gen. Stat. \u00a7 7B-llll(a) (emphasis added). See In re Clark, 151 N.C. App. 286, 288, 565 S.E.2d 245, 246 (2002) (stating \u201ca finding of any one of [the nine] grounds is sufficient to support the termination of parental rights\u201d). Moreover, assuming arguendo evidence of a probability of abuse or neglect was necessary to conclude grounds for termination existed under N.C. Gen. Stat. \u00a7 7B-llll(a)(9), the evidence of respondents\u2019 respective mental and physical health problems and the strain these problems placed on their ability to maintain a stable household living as a couple, constituted clear, cogent, and convincing evidence of their impaired ability to care for a minor child and an accompanying substantial probability of neglect if the minor child was placed in their household.\nRespondents further assert the trial court erred by failing to consider their reasonable progress, and they assign error to the independent clause in one of the trial court\u2019s findings of fact, which states, \u201cthere has been no significant change in [respondents\u2019] understanding of the problems that led to the removal of their previous children and their ability to address those problems.\u201d Contrary to respondents\u2019 assertion, when read in its entirety, the trial court\u2019s finding indicates the trial court considered respondents\u2019 progress but determined the progress was insufficient. In full, the finding states, \u201cAlthough they have established a stable residence and it appears that they are marginally getting by, there has been no significant change in [respondents\u2019] understanding of the problems that led to the removal of their previous children and their ability to address those problems.\u201d Moreover, the finding\u2019s independent clause was supported by the following clear, cogent, and convincing evidence: (1) respondents denied respondent-father had abused the previous children; (2) respondent-father believed the previous children were removed simply because respondents were not \u201cable to take care of their immediate needs . . . [a]nd provide everything safe and nurturing for them\u201d; (3) respondent-mother had chosen her marriage over the needs of her previous children as evidenced by her decision to return to respondent-father rather than maintain custody of the previous children; (4) respondent-mother was unable to recognize her need for mental health treatment and failed to pursue such treatment; and (5) the demands on respondents due to respondent-father\u2019s chronic mental and physical health problems remained substantial.\nRespondents finally assert the trial court abused its discretion by basing the termination of their parental rights in any part on V.L.B.\u2019s positive adjustment to her foster home. This Court has stated \u201ca finding that [a] child[] [is] well settled in [her] new family unit. . . does not alone support a finding that it is in the best interest of the child[] to terminate [a] respondent\u2019s parental rights.\u201d Bost v. Van Nortwick, 117 N.C. App. 1, 8, 449 S.E.2d 911, 915 (1994) (emphasis added). However, the trial co\u00fart here did not base its decision that termination was in the best interests of V.L.B. solely on her positive adjustment to foster care. Rather, the trial court also based its decision on findings that: (1) respondents each had chronic mental health problems; (2) respondents\u2019 daily needs, in particular respondent-father\u2019s mental and physical health problems, required all of their \u201cemotional, physical and financial resources\u201d; (3) respondents made \u201cno significant change in their understanding of the problems that led to the removal of their previous children\u201d; and (4) there was no significant change in their capacity to address the problems that led to the removal of their previous children. Accordingly, the trial court did not abuse its discretion by considering V.L.B.\u2019s positive adjustment to foster care as one factor in determining that termination of respondents\u2019 parental rights was in V.L.B.\u2019s best interests. Furthermore, the trial court did not abuse its discretion by concluding, based on the evidence and its findings of fact, that terminating respondents\u2019 parental rights was in the best interests of V.L.B.\nWe have carefully considered respondents\u2019 remaining arguments and find them to be without merit. For the foregoing reasons, the trial court\u2019s termination of respondents\u2019 parental rights is affirmed.\nAffirmed.\nJudges ELMORE and STEELMAN concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Stephen M. Schoeberle, for the Burke County Department of Social Services-petitioner-appellee.", "Starnes, Teele, Aycock, Haire & Treibert, PA, by Nancy L. Einstein, for Guardian ad Litem-appellee.", "Carlton, Rhodes & Carlton, by Gary C. Rhodes, for respondent-mother-appellant.", "Charlotte Gail Blake, for respondent-father-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: V.L.B.\nNo. COA04-219\n(Filed 1 March 2005)\n1. Termination of Parental Rights\u2014 inability to establish safe home \u2014 sufficiency of evidence\nThere was clear, cogent, and convincing evidence in a termination of parental rights proceeding to support the trial court\u2019s finding that respondents lacked the ability to establish a safe home for the child.\n2. Termination of Parental Rights\u2014 2002 evaluation \u2014 2003 proceeding\nThe trial court did not err in a 2003 termination of parental rights proceeding by relying on a 2002 psychological evaluation in assessing the severity and chronic nature of respondents\u2019 respective mental health conditions. Nor did the trial court err by concluding, based on respondents\u2019 history, that they did not have the ability to provide a safe and appropriate home for the minor child.\n3. Termination of Parental Rights\u2014 mental and physical health problems \u2014 impaired ability to care for child\nA trial court may terminate a respondent\u2019s parental rights upon a finding of one or more of the statutory grounds in N.C. Gen. Stat. \u00a7 7B-llll(a); assuming that evidence of a probability of abuse or neglect was necessary in this case, the evidence of respondents\u2019 respective mental and physical health problems and the strain these problems placed on their ability to maintain a stable household as a couple constituted clear, cogent, and convincing evidence of their impaired ability to care for a minor child and an accompanying substantial probability of neglect if the minor child was placed in their household.\n4. Termination of Parental Rights\u2014 progress of parents\u2014 considered \u2014 insufficient\nAlthough respondents in a termination of parental rights case asserted that the trial court erred by failing to consider their reasonable progress, the trial court\u2019s finding, read in its entirety, indicates that the court considered respondents\u2019 progress but determined that it was insufficient. Moreover, a clause in the findings indicating that there had been no significant change in respondents\u2019 understanding of their problems and their ability to address those problems was supported by the clear, cogent, and convincing evidence.\n5. Termination of Parental Rights\u2014 child\u2019s adjustment to foster care \u2014 one factor in termination\nThe trial court in a termination of parental rights case did not abuse its discretion by considering the child\u2019s positive adjustment to foster care as one factor in determining that termination was in the child\u2019s best interests.\nAppeal by respondents from an order entered 22 September 2003 by Judge L. Suzanne Owsley in Burke County District Court. Heard in the Court of Appeals 16 September 2004.\nStephen M. Schoeberle, for the Burke County Department of Social Services-petitioner-appellee.\nStarnes, Teele, Aycock, Haire & Treibert, PA, by Nancy L. Einstein, for Guardian ad Litem-appellee.\nCarlton, Rhodes & Carlton, by Gary C. Rhodes, for respondent-mother-appellant.\nCharlotte Gail Blake, for respondent-father-appellant." }, "file_name": "0679-01", "first_page_order": 709, "last_page_order": 717 }