{ "id": 8351618, "name": "IN THE MATTER OF: B.D.", "name_abbreviation": "In re B.D.", "decision_date": "2005-11-01", "docket_number": "No. COA03-1599-2", "first_page": "234", "last_page": "251", "citations": [ { "type": "official", "cite": "174 N.C. App. 234" } ], "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": "614 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633155 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/se2d/614/0489-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "year": 2005, "opinion_index": -1, "case_paths": [ "/nc/359/0539-01" ] }, { "cite": "603 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631960, 12631959 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/603/0884-01", "/se2d/603/0884-02" ] }, { "cite": "616 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633515 ], "year": 2005, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0300-01" ] }, { "cite": "611 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632623 ], "year": 2005, "pin_cites": [ { "parenthetical": "\"B.D. 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II\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0803-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"." } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"." } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "170 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11917956 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0468-01" ] }, { "cite": "387 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "97 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519469 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/97/0057-01" ] }, { "cite": "281 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521385 ], "year": 1981, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0373-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-271", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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Stat. \u00a7 1-271" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0624-01" ] }, { "cite": "359 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804066 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0539-01" ] } ], "analysis": { "cardinality": 1270, "char_count": 44351, "ocr_confidence": 0.752, "pagerank": { "raw": 2.8120458945428217e-07, "percentile": 0.8376629293831417 }, "sha256": "fa1e59bf25f0552a6b0c97b86103d3f20b8edf5a929fa4783a39f61c75e7701d", "simhash": "1:ab79c78a364f2cd6", "word_count": 6925 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge HUDSON concur.", "Judge TIMMONS-GOODSON submitted this opinion for filing prior to 31 October 2005." ], "parties": [ "IN THE MATTER OF: B.D." ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nRespondent-mother and respondent-father (collectively, \u201crespondents\u201d) appeal the trial court order terminating their parental rights to their adopted son, Brian. For the reasons discussed herein, we affirm the order of the trial court.\nThe facts and procedural history pertinent to the instant appeal are as follows: On 8 November 2000, Buncombe County Department of Social Services (\u201cpetitioner\u201d) filed a petition against respondents, alleging that respondent-father was allowing Brian to sit on his lap while he drove a motorized and reflector-less wheelchair on Highway 70 in Asheville, North Carolina, in the dark hours of early morning. Following an adjudication and disposition hearing, the trial court entered an order on 19 March 2001 adjudicating Brian neglected and granting custody to petitioner. On 19 June 2001, petitioner filed a second petition against respondents, alleging that respondents engaged in \u201csexual games\u201d with Brian and encouraged him to urinate and defecate upon them, their cats, and their residence. Following an adjudication and disposition hearing, the trial court entered an order on 20 February 2002 adjudicating Brian neglected and abused.\nRespondents appealed the 20 February 2002 order to this Court. In an unpublished opinion filed 2 September 2003 QB.D. /\u201d), this Court affirmed the trial court order. On 1 November 2002, while B.D I was pending, petitioner filed a petition to terminate respondents\u2019 parental rights, alleging that Brian was neglected'and that respondents had willfully left Brian in foster care for more than twelve months without showing any reasonable progress under the circumstances to correct those conditions which led to his removal.\nThe trial court held a hearing on the matter in February 2003. On 19 May 2003, the trial court entered an order terminating respondents\u2019 parental rights. After recapitulating the evidence and findings from the prior adjudication hearings as well as the evidence from the termination hearing, the trial court found as fact that (i) respondents had failed to comply with court orders and recommended services, (ii) there had been no change in the circumstances since the 20 February 2002 adjudication of neglect, (iii) there is a reasonable probability of continuing neglect if Brian were returned to respondent\u2019s care, and (iv) respondents had failed to demonstrate any reasonable progress to correct those conditions which led to Brian\u2019s removal from their home. Based upon its findings of fact, the trial court concluded as a matter of law that sufficient grounds exist to terminate respondents\u2019 parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(l) and (2). After concluding that it was in Brian\u2019s best interests to do so, the trial court ordered the release of Brian for adoption and the termination of respondents\u2019 parental rights. Respondents appeal.\nWe note initially that, although their rights were terminated concurrently, respondents have filed separate appellate briefs with this Court. To the extent that their individual assignments of error present the same issue, we have chosen to address respondents\u2019 arguments together. Furthermore, where either respondent has failed to provide argument in their brief supporting an original assignment of error, we have deemed the omitted assignment of error abandoned pursuant to N.C.R. App. P. 28(b)(6) (2005). Accordingly, we limit our present review to those assignments of error properly preserved by respondents for appeal.\nRespondents\u2019 Jurisdictional Arguments\nBoth respondents argue that because Brian was not served with a summons, the trial court lacked jurisdiction to proceed with the termination hearing. We disagree.\nUpon the filing of a petition to terminate parental rights, N.C. Gen. Stat. \u00a7 7B-1106(a)(5) (2003) requires that a summons regarding the proceeding be issued to the juvenile whose rights are to be terminated. \u201c[T]he summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile\u2019s guardian ad litem if one has been appointed[.]\u201d Id. In the instant case, the record reflects that the summons required by N.C. Gen. Stat. \u00a7 7B-1106(a)(5) was served upon the guardian ad litem\u2019s attorney advocate rather than the guardian ad litem. Assuming arguendo that this was error, we note that the guardian ad litem did not object at trial to the sufficiency of service, nor does the guardian ad litem argue on appeal that the trial court lacked jurisdiction over Brian. Instead, respondents object to the sufficiency of the service, arguing that the failure to properly serve Brian necessitates reversal of the trial court\u2019s termination order.\n\u201cOnly a \u2018party aggrieved\u2019 may appeal from an order or judgment of the trial division.\u201d Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990) (quoting N.C. Gen. Stat. \u00a7 1-271). \u201cAn aggrieved party is one whose rights have been directly and injuriously affected by the action of the court.\u201d Culton, 327 N.C. at 625, 398 S.E.2d at 324. In the instant case, respondents are unable to demonstrate any prejudice arising from the alleged failure to properly serve Brian. Therefore, we are unable to conclude that respondents were \u201cdirectly and injuriously\u201d affected by the alleged error, and accordingly, we overrule this argument.\nRespondents also argue that the trial court erred by holding the special proceeding required by'N.C. Gen. Stat. \u00a7 7B-1108(b) immediately prior to commencement of the termination hearing. Respondents assert that the failure to notify them of the special hearing ten days prior to its commencement was reversible error. We disagree.\nWhen a respondent denies via answer any material allegation contained within a petition to terminate parental rights, N.C. Gen. Stat. \u00a7 7B-1108(b) (2003) requires that the trial court conduct a \u201cspecial hearing ... to determine the issues raised by the petition and answer . . . .\u201d While we recognize that the statute provides that \u201cnotice of not less than 10 days nor more than 30 days\u201d shall proceed the special hearing, Id., we note that this Court has held that similar requirements under former N.C. Gen. Stat. \u00a7 7A-289.29(b) were \u201cgeneral,\u201d and \u201c[t]he fact that the hearing [i]s brief and held just prior to the trial does not conflict with the statutory requirements.\u201d In re Peirce, 53 N.C. App. 373, 383, 281 S.E.2d 198, 204 (1981).\nIn the instant case, the record reveals that both respondents denied all the material allegations of the petition in their answers, thereby indicating that each of the grounds for termination alleged in the petition were in dispute. As there were no issues remaining for the trial court to dispose of at the special hearing, we are not persuaded that either respondent suffered prejudice as a result of the failure to notify respondents of the special hearing ten days prior to its commencement. Furthermore, we note that at the special hearing, respondent-mother\u2019s counsel stated: \u201cI did represent this morning that I am prepared for this hearing. I\u2019ve read this file. I\u2019ve been involved in this case for sometime, Your Honor, and know what the petition alleges.\u201d Likewise, respondent-father\u2019s counsel stated: \u201cI can\u2019t represent that we are harmed by it in any particular way by not having a special notice . . . .\u201d These comments were elicited by the trial court, which; citing In re Taylor, 97 N.C. App. 57, 387 S.E.2d 230 (1990), inquired as to the parties\u2019 \u201csurprise\u201d and ability to prepare an adequate defense considering the absence of notice regarding the special hearing. In light of the foregoing, we conclude that the trial court did not commit reversible error by holding the special hearing immediately prior to the termination hearing. Accordingly, this argument is overruled.\nRespondents also argue that the trial court was without jurisdiction to proceed with the termination hearing because petitioner failed to attach a copy of the custody order regarding Brian to the petition. We disagree.\nWhere a trial court places custody of the juvenile in some agency or person other than the parent, N.C. Gen. Stat. \u00a7 7B-1104(5) (2003) requires that a copy of the custody order be attached to a subsequent petition to terminate parental rights. In In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996), the respondent assigned as error the petitioner\u2019s failure to attach a custody order to the petition and failure to satisfy the notice requirements of the termination statute. On appeal, this Court reviewed the record before it and determined that, because the petition satisfied the general notice requirements of N.C. Gen. Stat. \u00a7 1A-1, Rule 4(jl), \u201cthe discrepancy\u201d in the petition was not so \u201cmaterial... as to result in any prejudice to the respondent.\u201d Id. at 471, 470 S.E.2d at 541. Similarly, in In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003), the respondent argued that the trial court lacked subject matter jurisdiction because the petitioner failed to comply with N.C. Gen. Stat. \u00a7 7B-1104(7), which requires that a petition state that it \u201chas not been filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act.\u201d On appeal, this Court concluded as follows:\n[W]e find no authority that compelled dismissal of the action solely because petitioner failed to include this statement of fact in the petition. While it is a better practice to include the factual statement as stated in the statute, under the facts in this case we find that respondent has failed to demonstrate that she was prejudiced as a result of the omission.\n156 N.C. App. at 539, 577 S.E.2d at 426. Although we note that this Court has more recently concluded that failure to attach a custody order results in a \u201cfacially defective\u201d petition which \u201cfail[s] to confer subject matter jurisdiction upon the trial court[,]\u201d In re Z.T.B., 170 N.C. App. 564, 570, 613 S.E.2d 298, 301 (2005), we are persuaded by the reasoning as well as precedential authority of our prior decisions regarding the statute. See In re Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d.); see also In re R.T.W., 359 N.C. 539, 542 n.3, 614 S.E.2d 489, 491 n.3 (2005) (citing Civil Penalty in resolving conflict in this Court regarding jurisdiction over termination proceedings and noting that a second panel of this Court should have followed a prior panel\u2019s decision, \u201cwhich [wa]s the older of the two cases. Had it done so, we would not have two conflicting lines of cases to resolve.\u201d).\nIn the instant case, there is no indication that petitioner attached a copy of the custody order to the petition to terminate respondents\u2019 parental rights. However, there is also no indication that respondents were unaware of Brian\u2019s placement at any point during the case. The petition noted that \u201ccustody of [Brian] was given by prior orders\u201d of the trial court, and it referenced the court file wherein those orders were entered. In his answer, respondent-father admitted that Brian was \u201cin the legal custody of the Buncombe County Department of Social Services.\u201d As detailed above, counsel for both respondents indicated at the termination hearing that they had been involved in the case for some time and had reviewed the trial court\u2019s orders prior to the hearing. Various trial court orders in the record note that respondents were present at pre-termination hearings in which custody was granted to and continued with petitioner as well as those hearings in which visitation options were discussed and determined. In light of the foregoing, we conclude that respondents are unable to demonstrate any prejudice arising from petitioner\u2019s failure to attach the pertinent custody order to the petition. Accordingly, we overrule this argument.\nRespondents further argue that the trial court was without jurisdiction to proceed with the termination hearing because issues arising out of a prior adjudication and disposition of abuse and neglect were currently pending before this Court. In a previous opinion in this case, In re B.D., 169 N.C. App. 803, 611 S.E.2d 187 (2005) (\u201cB.D. II\"), this Court concluded that the trial court was without jurisdiction to terminate respondents\u2019 parental rights while B.D. I was pending. However, our Supreme Court has recently concluded that \u201cthe pending appeal of a custody order does not deprive a trial court of jurisdiction over termination proceedings.\u201d R.T.W., 359 N.C. at 542, 614 S.E.2d at 491. In so concluding, the Supreme Court upheld this Court\u2019s opinion in In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323, disc. review denied, 357 N.C. 506, 588 S.E.2d 472 (2003), in which the respondent\u2019s appeal of a'neglect adjudication was dismissed as moot where a subsequent termination order was entered while the appeal was pending. In light of R.T.W., we overrule respondents\u2019 final jurisdictional argument.\nRespondents\u2019 Evidentiary Arguments\nBoth respondents argue that the trial court erred by allowing a pediatric doctor and nurse practitioner to testify regarding Brian\u2019s alleged sexual abuse. Respondents assert that the witnesses\u2019 testimony and conclusions relied on improper bases and were thus inadmissible. We disagree.\nThe record in the instant case reflects that both Dr. Cynthia Brown (\u201cDr. Brown\u201d) and Certified Nurse Practitioner Elizabeth Osbahr (\u201cNurse Osbahr\u201d) testified at the termination hearing. Dr. Brown was received as an expert in pediatric medicine, and she testified that Brian\u2019s medical history, sexualized behavior, poor social boundaries, and use of sexualized language \u201cfit a child who has been sexually abused.\u201d Nurse Osbahr testified that it was her \u201cimpression\u201d that Brian had been \u201csexual[ly] abused, that he had bruising on his lower legs, and that there were behavior concerns.\u201d\nWe note that respondent-mother contends that Brian\u2019s statements to Dr. Brown and Nurse Osbahr were \u201chearsay statements,\u201d and that reference to the statements during their testimony violated her rights under the Confrontation Clause. Respondent-mother also contends that because Nurse Osbahr\u2019s testimony was received in order to corroborate Brian\u2019s later testimony, her testimony was inadmissible when petitioner failed to thereafter elicit testimony from Brian. This Court has recently concluded that the Confrontation Clause is inapplicable to termination proceedings, in that such proceedings are civil actions where \u201c \u2018the right to be present, to testify, and to confront witnesses [is] subject to \u201cdue limitations.\u201d \u2019 \u201d In re D.R., 172 N.C. App. 300, 303, 616 S.E.2d 300, 303 (2005). Furthermore, in the instant case, the trial court continually reminded trial counsel that it would not consider Brian\u2019s statements to Dr. Brown and Nurse Osbahr for the purpose of establishing the truth of the matter asserted therein, but rather for the purpose of establishing the basis of their determinations. Although the trial court initially mentioned the possibility of \u201cshifting gears\u201d to allow Nurse Osbahr\u2019s testimony to be \u201ccorroborative as opposed to for the purpose of diagnosis and treatment,\u201d following extensive voir dire from all parties regarding the foundation for Nurse Osbahr\u2019s testimony, the trial court ruled only upon the admissibility of her testimony for substantive purposes and made no mention regarding its admissibility for corroborative purposes. Accordingly, we overrule these arguments from respondent-mother.\nRespondents also contend that because Dr. Brown was not present when Brian was being interviewed and examined, her opinion regarding his potential abuse was based on an improper foundation. This Court has recently rejected a similar argument by the respondent in In re Mashburn, 162 N.C. App. 386, 591 S.E.2d 584, appeal dismissed, 359 N.C. 68, 603 S.E.2d 884 (2004). In Mashbum, the respondent-mother argued that an expert pediatrician\u2019s testimony was inadmissible because the child\u2019s statements forming the basis of her medical diagnosis were not made directly to her. This Court stated that \u201c[w]hile [the witness] did not personally conduct the interviews of the children, and she testified to the content of both these interviews, [the petitioner] offered and this Court accepts that these statements are admissible under the ordinary course of business hearsay exception.\u201d 162 N.C. App. at 394-95, 591 S.E.2d at 590 (citing In re Smith, 56 N.C. App. 142, 148, 287 S.E.2d 440, 444 (\u201cWhile it is true that the witnesses had no firsthand knowledge . . . when they assumed responsibility of the case, each had familiarized herself with the case history of the client based on the records kept by the department of social services . . . admissible under the business records exception to the hearsay rule.\u201d), cert. denied, 306 N.C. 385, 294 S.E.2d 212 (1982)).\nIn the instant case, the record indicates that rather than relying upon the business records excpetion, the trial court relied upon N.C. Gen. Stat. \u00a7 8C-1, Rule 703 in allowing Dr. Brown to testify. Rule 703 provides that an expert may testify regarding inadmissible facts and data made known to him or her \u201cat or before the hearing\u201d if. the facts and data are \u201cof a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 703 (2003). Here, Dr. Brown testified on voir dire regarding the \u201cnormal way\u201d she reaches her conclusions regarding potentially abused children, indicating that she reaches her decision after receiving information and data reported by several agencies and individuals, including social workers, guardians ad litem, nurse practitioners, and in some cases, the children themselves. Dr. Brown testified that such methods are \u201ctrue of medical evaluations in general,\u201d and that after compiling the pertinent inf or-mation from various sources, she routinely fills out a form provided by the State which requires her to \u201cuse all the information provided\u201d to reach a conclusion. In light of the foregoing, we conclude that, despite her absence from Brian\u2019s examination, the trial court did not err by allowing Dr. Brown to testify regarding her determination.\nRespondents maintain that because the conclusions of Dr. Brown and Nurse Osbahr were based solely upon Brian\u2019s statements, they were inadmissible at the termination hearing. In support of this assertion, respondents cite State v. Grover, 142 N.C. App. 411, 543 S.E.2d 179, aff\u2019d per curiam, 354 N.C. 354, 553 S.E.2d 679 (2001) and State v. Bates, 140 N.C. App. 743, 538 S.E.2d 597 (2000), disc. review denied, 353 N.C. 383, 547 S.E.2d 19 (2001), in which this Court concluded that where a medical professional\u2019s determination is based solely upon a juvenile\u2019s statements that he or she has been abused, the determination lacks a sufficient foundation and should not be admissible. Assuming arguendo that Grover and Bates apply to termination proceedings in addition to child sexual abuse trials, we conclude that their holdings are inapplicable to the instant case. Here, the record reflects that neither Dr. Brown nor Nurse Osbahr based their determinations solely upon what Brian stated in his interviews. Instead, both witnesses described the various bases used in reaching their determinations, including reports from other sources which detailed Brian\u2019s sexualized behavior, poor social boundaries, and medical history. Accordingly, we overrule this argument.\nRespondent-mother\u2019s Individual Argument\nIn addition to those arguments she shares with respondent-father, respondent-mother argues that the trial court erred by \u201crepeatedly and very specifically instruct[ing] the attorney for [petitioner] during her case in chief on how to elicit evidence or admissible testimony].]\u201d Respondent-mother asserts that by \u201cessentially hijack[ing] and trfying] the adjudication for [petitioner],\u201d the trial court committed plain error. However, we note that to date, the plain error rule has not been expanded to civil cases in general or to child custody cases in particular. See In re Gleisner, 141 N.C. App. 475, 479, 539 S.E.2d 362, 365 (2000); Raynor v. Odom, 124 N.C. App. 724, 732, 478 S.E.2d 655, 660 (1996). Furthermore, in the instant case, there is no indication that respondent-mother ever objected at trial to the alleged biased or prejudicial actions of the trial court, and our review of the record reveals no such bias or prejudice. Accordingly, we overrule this argument.\nRespondent-father\u2019s Individual Arguments\nIn addition to those arguments he shares with respondent-mother, respondent-father argues that the trial court erred by: (I) finding as fact that he refused to sign a release form related to his treatment at a local hospital; (II) concluding that sufficient grounds exist to terminate his parental rights; and (III) concluding that it was in Brian\u2019s best interests to terminate his parental rights.\nRespondent-father first argues that the trial court erred by finding that he refused to sign a release form related to his treatment at a local hospital. Respondent-father asserts that the trial court\u2019s finding is not supported by sufficient evidence in the record. We disagree.\nWhere a respondent challenges the sufficiency of the evidence relied upon by a trial court in terminating his or her parental rights, \u201cwe look to see whether there is clear, cogent and convincing competent evidence to support the findings. If there is such competent evidence, the findings are binding upon us on appeal.\u201d In re Allen, 58 N.C. App. 322, 325, 293 S.E.2d 607, 609 (1982) (citations omitted). In the instant case, the trial court made the following pertinent finding of fact:\n31. That after [respondents] completed their psychological evaluations, Ms. Rothard, Social Worker for the Department of Social Services, made referrals to Blue Ridge Mental Health Center for therapy. . . . [Respondent-father] refused to go to the intake appointment until after the second adjudication when he was reordered by the Court. When the second intake appointment was scheduled [respondent-father] attended [but] spent the first half hour refusing to be seen at Blue Ridge Adult Services. [Respondent-father] did not follow up with any therapy sessions thereafter with Blue Ridge. From 2001 to present, neither parent had received counseling through Blue Ridge. [Respondent-father] refused to go to Blue Ridge Mental Health because the records would be available to the Court. [Respondent-father] reported that he was being treated at the VA Hospital, however when he was asked to sign a release in order to verify the information, he refused. Ms. Rothard was never able to ascertain whether he received therapy at the VA Hospital. . . .\nAfter reviewing the record in the instant case, we conclude that competent evidence supports this finding of fact. At the termination hearing, Janet Rothard (\u201cRothard\u201d) testified that she was a social worker assigned to Brian\u2019s case. Rothard testified that she accompanied respondent-father to Blue Ridge Adult Services following a prior neglect adjudication. Rothard testified that while at Blue Ridge Adult Services, respondent-father \u201cspent about a half an hour refusing to be seen,\u201d but nevertheless subsequently \u201cdid an about-face and agreed that he would be willing to be seen.\u201d Rothard further testified that respondent-father did not attend the scheduled follow-up appointments, and in response to a question regarding the nature of \u201cthe VA support group,\u201d Rothard testified that respondent-father \u201cmade it very clear that the reason he did not choose to go to Blue Ridge and be a client there was because Blue Ridge records are available to the courts.\u201d Rothafd explained as follows:\nAccording to [respondent-father], the records from therapy at the Veteran\u2019s Administration Hospital are not available to the court. I requested several times that [respondent-father] would sign a release with the VA giving me the ability to speak with his therapist about his treatment. He gave me the name of the therapist. I called the therapist repeatedly. That therapist would never return my calls, and I never had the ability to talk to anyone at the VA. So whether he went or didn\u2019t go is not something I ever had the ability to know.\nRespondent contends that this testimony does not support the trial court\u2019s finding of fact, in that it establishes \u201conly\u201d that Rothard requested that he sign a release and not that Rothard was unable to determine the nature and extent of the treatment. However, we note that Rothard further testified that respondent-father \u201cmade it very clear that we could never subpoena [his] records\u201d from the Veteran\u2019s Administration Hospital, that there was no indication respondent-father was receiving \u201cthe type of counseling . .. ordered\u201d by the trial court, and that she was unable to ascertain the type of counseling respondent-father allegedly received at the Veteran\u2019s Administration Hospital because her \u201cefforts to contact... the doctor who was treating him met with a stone wall.\u201d In light of the foregoing, we conclude that sufficient evidence supports the trial court\u2019s finding of fact on this issue. Accordingly, we overrule this argument.\nRespondent-father next argues that the trial court erred by concluding that sufficient grounds exist to terminate his parental rights to Brian. Although respondent-father asserts that the trial court was without ample evidence to reach its ultimate conclusions regarding petitioner\u2019s allegations, notwithstanding that finding of fact discussed above, respondent-father fails to assign error to any specific findings of fact made by the trial court. \u201cAn order terminating parental rights will be upheld if there is clear, cogent, and convincing evidence to support the findings of fact and those findings of fact support the trial court\u2019s conclusions of law.\u201d In re Clark, 159 N.C. App. 75, 83, 582 S.E.2d 657, 662 (2003) (citation omitted). \u201c[A] broadside exception that the trial court\u2019s conclusion of law is not supported by the evidence [] does not present for review the sufficiency of the evidence to support the entire body of the findings of fact. Instead, the trial court\u2019s findings of fact are binding on appeal, and we are left to determine whether the trial court\u2019s findings support its conclusion of law.\u201d In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001) (citations omitted).\nIn the instant case, the trial court concluded that sufficient grounds exist to terminate respondent-father\u2019s parental rights pursuant to N.C. Gen. Stat. \u00a7 7B-llll(a)(l) and (2). N.C. Gen. Stat. \u00a7 7B-llll(a)(2) (2003) provides that a trial court may terminate a respondent\u2019s parental rights upon concluding that the respondent \u201chas willfully left the juvenile in foster care or placement outside the home for more than 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 removal of the juvenile.\u201d A determination of willfulness does not require a showing that the parent was at fault. In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). Instead, \u201c[willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.\u201d In re McMillon, 143 N.C. App. 402, 410, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001).\nHere, it is undisputed that Brian has been in petitioner\u2019s custody with placement outside respondents\u2019 home since April 2001. Along with finding of fact thirty-one, the trial court made the following pertinent findings of fact in its termination order:\n29. That Dr. Grandis performed a psychological evaluation on [respondent-father] on May 4, 2001. . . .\n30. Dr. Grandis recommended that [respondent-father\u2019s] mental health be monitored closely. He further added that reunification should be contingent upon supports. Dr. Grandis believes it is important to rule out the possible disorders for safe parenting. Ruling out such disorders would require follow up therapy.\n43. Ms. Rothard reported that following the allegations of sexual abuse in June 2001 [petitioner\u2019s] plan changed from reunification to adoption. . . . The Court continued to order [respondents] to comply with treatment recommendations.\n49. Ms. Rothard\u2019s last contact with [respondents] was in November 2002 at an agency review hearing. No changes by [respondents] had been made to ameliorate the risks outlined in the Risk Assessment.\n55. [Respondents] have a history of failing to comply with court orders and failing to cooperate with the services offered by [petitioner] and the Guardian ad Litem. Not only have services been recommended by [petitioner], but on numerous occasions the Court has ordered, repeatedly, as evidenced by the above outline of prior Court orders involving [Brian]. Counseling for [respondents] was deemed necessary for reunification efforts. The Court has repeatedly determined that counseling for [respondents] was in the best interests of [Brian].... [Respondents] have repeatedly been defiant and uncooperative with Court orders and with [petitioner] beginning with the initial petition alleging child abuse and neglect, through the first and second adjudication orders, and later after each permanency and planning hearing.\n56. Both [respondents] were ordered by the Court to obtain psychological evaluations and to follow all recommendations of the evaluations over two years ago on February 19, 2001, following the initial adjudication hearing. . . . The initial report made to [petitioner] involved [respondent-father] transporting [Brian] on his motorized wheelchair on Highway 70. Although that was the incident that led to the initial investigation and ultimate finding of neglect, the Court heard evidence and made findings that [respondents] refused to cooperate with the protection plan. The Court found that [respondent-father] became irate and threatened to get his gun in order to make a citizen[\u2019]s arrest. . . . [Respondents] refused to cooperate with obtaining psychological evaluations for themselves and for [Brian], As well, [respondents] refused to cooperate with the referral for [Brian\u2019s] [developmental evaluation]. . . . The Court specifically found that [Brian] was removed from the home of [respondents] and placed in foster care because [Brian] was not enrolled in school, was not involved in counseling, had not had a psychological evaluation, [respondents] had failed to cooperate with [petitioner] in obtaining a psychological evaluation or enrolling [Brian] in counseling, and both parents refused to participate in psychological evaluations for themselves. . . . The Court ordered [respondents] to cooperate with the process to obtain psychological assessments and to comply with any recommendations of the assessments. Although [respondents] eventually had the psychological performed, neither has complied with treatment recommendations to date. Treatment was recommended in order to address [respondents\u2019] ability to make proper parenting decisions and to address the anger and frustration directed toward [petitioner] and other authority figures. There is no evidence [respondents] have addressed their mental health diagnos[e]s. There is no evidence to support advancement in their mental health needs supporting their fitness to care for [Brian], as of the date of the termination hearing. [Respondents\u2019] defiance in their own mental health needs strongly suggests their unwillingness and defiance to facilitate the necessary special treatment needs of [Brian].\nThese findings of fact establish that respondent-father had the ability as well as several opportunities to comply with trial court orders and demonstrate that he was willing to make an effort to correct those conditions leading to Brian\u2019s removal. Nevertheless, as noted by the trial court, respondent-father was instead \u201chostile and non-cooperative for the duration of the underlying juvenile case,\u201d and he failed to \u201cfollow through with individual therapy or other additional treatment for his mental health diagnosis in order for reunification efforts to move forward or [to show] the Court his ability to exercise good judgment. . . .\u201d Respondent-father further \u201cfailed to accept any responsibility for [Brian\u2019s] behavior problems or for failing to obtain counseling for the minor child.\u201d In light of the foregoing, we conclude that the trial court\u2019s findings of fact support its determination that respondent willfully left Brian in foster care for more than twelve months without demonstrating any reasonable progress under the circumstances to correct those conditions which led to Brian\u2019s removal. As such a determination is sufficient in and of itself to justify termination of parental rights, we need not address respondent-father\u2019s arguments regarding the trial court\u2019s conclusion that he neglected Brian. Clark, 159 N.C. App. at 84, 582 S.E.2d at 663. Accordingly, we overrule this argument.\nRespondent-father\u2019s final argument is that the trial court erred by concluding that it was in Brian\u2019s best interests to terminate his parental rights. We disagree.\nWhen the petitioner succeeds in establishing the existence of any one of the statutory grounds listed in N.C. Gen. Stat. \u00a7 7B-1111, \u201cthe court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.\u201d N.C. Gen. Stat. \u00a7 7B-1110(a) (2003). Our review of the trial court\u2019s decision regarding the best interests of the child is limited to determining whether the trial court abused its discretion. In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).\nIn the instant case, as detailed above, the allegations against petitioners involved particularly disturbing acts of neglect and abuse. After receiving evidence and hearing argument from both parties, the trial court determined that Brian has \u201cspecial treatment needs\u201d and requires placement \u201cwith custodians who recognize his needs for treatment and are willing to accept and follow through with recommendations.\u201d Recognizing that \u201c[i]n order for [Brian] to succeed personally and academically he needs to be in an environment that encourages mental health treatment and structure\u201d and that respondents \u201chave failed to demonstrate that they will provide care that promotes [Brian\u2019s] healthy and orderly physical and emotional well-being[,]\u201d the trial court concluded that it was in Brian\u2019s best interests to terminate respondents\u2019 parental rights and release Brian for adoption. After reviewing the record, we are not persuaded that the trial court abused its discretion in reaching its decision. Accordingly, we overrule respondent-father\u2019s final argument.\nConclusion\nIn light of the foregoing conclusions, we affirm the trial court order terminating respondents\u2019 parental rights to Brian.\nAffirmed.\nChief Judge MARTIN and Judge HUDSON concur.\nJudge TIMMONS-GOODSON submitted this opinion for filing prior to 31 October 2005.\n. For the purposes of this opinion, we will refer to the minor child by the pseudonym \u201cBrian.\u201d", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Renea S. Alt for petitioner-appellee Buncombe County Department of Social Services.", "Judy N. Rudolph for guardian ad litem-appellee.", "Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for respondent-appellant mother.", "David A. Perez for respondent-appellant father." ], "corrections": "", "head_matter": "IN THE MATTER OF: B.D.\nNo. COA03-1599-2\n(Filed 1 November 2005)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAll original assignments of error not argued in either respondent\u2019s brief are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6).\n2. Termination of Parental Rights\u2014 jurisdiction \u2014 failure to serve summons on minor child\nThe trial court did not lack jurisdiction in a termination of parental rights case based on an alleged failure to serve a summons on the minor child when the summons required by N.C.G.S. \u00a7 7B-1106(a) (5) was served upon the guardian ad litem\u2019s attorney advocate rather than the guardian ad litem, because: (1) assuming arguendo that this procedure was error, the guardian ad litem did not object at trial to the sufficiency of service, nor does the guardian ad litem argue on appeal that the trial court lacked jurisdiction over the minor child; and (2) respondent parents are unable to demonstrate any prejudice arising from the alleged failure to properly serve the minor child.\n3. Termination of Parental Rights\u2014 holding special proceeding immediately prior to termination hearing \u2014 notice\nThe trial court did not err in a termination of parental rights case by holding the special hearing required by N.C.G.S. \u00a7 7B-1108(b) immediately prior to commencement of the termination hearing without giving respondents notice ten days prior to the hearing, because: (1) both respondents denied all the material allegations of the petition in their answers thereby indicating that each of the grounds for termination alleged in the petition were in dispute; (2) as there were no issues remaining for the trial court to dispose of at the special hearing, neither respondent suffered prejudice as a result of the failure to notify respondents of the special hearing ten days prior to its commencement; and (3) the trial court inquired as to the parties\u2019 surprise and ability to prepare an adequate defense considering the absence of notice regarding the special hearing, and both parties indicated they were ready to proceed.\n4. Termination of Parental Rights\u2014 jurisdiction \u2014 failure to attach copy of custody order to petition \u2014 notice\nThe trial court did not lack jurisdiction in a termination of parental rights case based on petitioner\u2019s failure to attach to the petition a copy of the custody order regarding the minor child, because: (1) although the Court of Appeals has recently concluded that a failure to attach a custody order results in a facially defective petition which fails to confer subject matter jurisdiction upon the trial court, the Court of Appeals is bound by preceden-tial authority of its prior decisions and should not have created a conflicting line of cases to resolve; (2) there was no indication that respondent parents were unaware of the minor child\u2019s placement at any point during the case; and (3) respondents were unable to demonstrate any prejudice arising from petitioner\u2019s failure to attach the pertinent custody order to the petition.\n5. Termination of Parental Rights\u2014 jurisdiction \u2014 pending appeal of a custody order\nThe trial court did not lack jurisdiction in a termination of parental rights case even though issues arising out of a prior adjudication and disposition of abuse and neglect were currently pending before the Court of Appeals, because our Supreme Court has recently concluded that the pending appeal of a custody order does not deprive a trial court of jurisdiction of termination proceedings.\n6. Evidence\u2014 testimony \u2014 pediatric doctor \u2014 nurse practitioner \u2014 sexual abuse\nThe trial court did not err in a termination of parental rights case by allowing a pediatric doctor and nurse practitioner to testify regarding the minor child\u2019s alleged sexual abuse, because: (1) the Confrontation Clause is inapplicable to termination proceedings since such proceedings are civil actions where the right to be present, to testify, and to confront witnesses is subject to due limitations; (2) the trial court continually reminded counsel that it would not consider the minor child\u2019s statements to the doctor and nurse for the purpose of establishing the truth of the matter asserted therein, but rather for the purpose of establishing the basis of their determinations; (3) despite her absence from the minor child\u2019s examination, the trial court did not err by allowing the doctor to testify regarding her determination; and (4) the record reflects that neither the doctor or nurse based their deter-ruinations solely upon what the minor child stated in his interviews, but instead both witnesses described the various bases used in reaching their determinations including reports from other sources which detailed the minor child\u2019s sexualized behavior, poor social boundaries, and medical history.\n7. Evidence\u2014 trial court instruction to attorney on how to elicit evidence or admissible testimony \u2014 plain error analysis inapplicable \u2014 failure to object\nThe trial court did not err in a termination of parental rights case by repeatedly and very specifically instructing petitioner\u2019s attorney during her case-in-chief on how to elicit evidence or admissible testimony, because: (1) the plain error rule has not been expanded to civil cases in general or to child custody cases in particular; and (2) there is no indication that respondent mother ever objected at trial to the alleged biased or prejudicial actions of the trial court, and a review of the record revealed no such bias or prejudice.\n8. Termination of Parental Rights\u2014 findings of fact \u2014 refusal to sign release form related to treatment\nThe trial court did not err in a termination of parental rights case by finding as fact that respondent father refused to sign a release form related to his treatment at a local hospital, because there was sufficient evidence supporting this finding including that the social worker assigned to this case testified that: (1) respondent father made it very clear that nobody could subpoena his records from the Veteran\u2019s Administration Hospital; (2) there was no indication respondent was receiving the type of counseling ordered by the trial court; and (3) the social worker was unable to ascertain the type of counseling respondent allegedly received at the hospital since her efforts to contact the doctor who was treating respondent were met with a stone wall.\n9. Termination of Parental Rights\u2014 grounds \u2014 willfully left child in foster care without demonstrating reasonable progress\nThe trial court did not err by concluding that sufficient grounds existed to terminate respondent father\u2019s parental rights including that respondent willfully left the minor child in foster care for more than twelve months without demonstrating any reasonable progress under the circumstances to correct those conditions which led to the minor child\u2019s removal, because: (1) the findings of fact establish that respondent had the ability as well as several opportunities to comply with trial court orders to demonstrate that he was willing to make an effort to correct those conditions leading to the minor child\u2019s removal, but respondent was instead hostile and noncooperative for the duration of the underlying juvenile case and he failed to follow through with individual therapy or other additional treatment for his mental health diagnosis in order for reunification efforts to move forward or to show the court his ability to exercise good judgment; and (2) respondent failed to accept any responsibility for the minor child\u2019s behavior problems or for failing to obtain counseling for the minor child.\n10. Termination of Parental Rights\u2014 best interests of child\u2014 no showing of abuse of discretion\nThe trial court did not abuse its discretion in a termination of parental rights case by concluding that it was in the minor child\u2019s best interests to terminate parental rights, because respondents failed to demonstrate that they would provide care that promotes the minor child\u2019s healthy and orderly physical and emotional well-being.\nJudge Timmons-Goodson submitted this opinion for filing prior to 31 October 2005.\nOn remand based upon an order of the Supreme Court filed 18 August 2005 which remanded this case to this Court for reconsideration of its prior decision in light of In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005). Appeal by respondents from order entered 20 January 2003 by Judge Patricia Kaufmann Young in Buncombe County District Court. Originally heard in the Court of Appeals 20 September 2004. The following opinion supercedes and replaces the opinion filed 19 April 2005.\nRenea S. Alt for petitioner-appellee Buncombe County Department of Social Services.\nJudy N. Rudolph for guardian ad litem-appellee.\nHall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for respondent-appellant mother.\nDavid A. Perez for respondent-appellant father." }, "file_name": "0234-01", "first_page_order": 264, "last_page_order": 281 }