{ "id": 8525708, "name": "IN THE MATTER OF: BIANCA LAPRENA CALDWELL, minor child, MECKLENBURG COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and TERESA VALAY CALDWELL, and ROMERO CLARK, Respondents", "name_abbreviation": "In re Caldwell", "decision_date": "1985-06-18", "docket_number": "No. 8426DC1138", "first_page": "299", "last_page": "304", "citations": [ { "type": "official", "cite": "75 N.C. App. 299" } ], "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": "281 S.E. 2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521385 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0373-01" ] }, { "cite": "324 S.E. 2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526538 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0234-01" ] }, { "cite": "316 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "459 U.S. 1139", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6528068, 6528196, 6528138, 6528010, 6528267 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/1139-02", "/us/459/1139-04", "/us/459/1139-03", "/us/459/1139-01", "/us/459/1139-05" ] }, { "cite": "293 S.E. 2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "violent, likely sexual, abuse" } ], "opinion_index": 0 }, { "cite": "306 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571007 ], "year": 1982, "pin_cites": [ { "parenthetical": "violent, likely sexual, abuse" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0394-01" ] }, { "cite": "327 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "court must consider all evidence of neglect and probability of repetition" } ], "opinion_index": 0 }, { "cite": "320 S.E. 2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "70 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522409 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/70/0383-01" ] }, { "cite": "319 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0708-01" ] }, { "cite": "444 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11378056, 11377949, 11377893, 11378007 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0890-04", "/us/444/0890-02", "/us/444/0890-01", "/us/444/0890-03" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "441 U.S. 418", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1780484 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/441/0418-01" ] }, { "cite": "296 S.E. 2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526361 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0322-01" ] }, { "cite": "315 S.E. 2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527649 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0561-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-288", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 } ], "analysis": { "cardinality": 634, "char_count": 13323, "ocr_confidence": 0.816, "pagerank": { "raw": 2.4990646477176505e-07, "percentile": 0.8093280727949776 }, "sha256": "e451e857aa62960b3f47f4ed2f1f15c6f1d6f7a034a827d7515fe4b4eafddcf3", "simhash": "1:a639708b802aec26", "word_count": 2137 }, "last_updated": "2023-07-14T16:03:29.490718+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and Cozort concur." ], "parties": [ "IN THE MATTER OF: BIANCA LAPRENA CALDWELL, minor child, MECKLENBURG COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and TERESA VALAY CALDWELL, and ROMERO CLARK, Respondents" ], "opinions": [ { "text": "WELLS, Judge.\nRespondent attempted to appeal in forma pauperis pursuant to N.C. Gen. Stat. \u00a7 1-288 (1983). Notice of appeal was given 7 June 1984, and trial counsel moved to withdraw the same day. Present counsel was appointed 18 June 1984, and filed appeal entries 5 July 1984, followed by a motion for leave to appeal in for-ma pauperis and for an extension of time to file same on 11 July 1984. The motion was allowed the same day. Petitioner DSS filed a motion to dismiss the appeal on 31 July 1984, alleging lack of notice and lateness. Relying on In re Shields, 68 N.C. App. 561, 315 S.E. 2d 797 (1984), the trial court ruled that respondent had failed to comply with G.S. \u00a7 1-288 and struck its order allowing appeal in forma pauperis. Respondent assigns error.\nG.S. \u00a7 1-288 requires that motions to appeal in forma pauperis be made at the latest within ten days after the expiration of the session at which judgment is rendered. This requirement is mandatory. In re Shields, supra. Even assuming that the ten day limit began to run as of the time counsel was appointed for appeal, no motion was filed within ten days. The late filing of appeal entries has no bearing on the question; appeal entries are simply a convenient means of providing a record entry of the fact that an appeal has been taken, and do not constitute the taking of the appeal itself. See Commentary, Rule 3 of the Rules of Appellate Procedure. The court correctly denied respondent leave to proceed in forma pauperis. The docket of this court indicates that all fees and printing charges have nevertheless been paid; therefore this court has jurisdiction over the cause and we proceed to the merits.\nThe trial court found that respondent\u2019s parental rights should be terminated under N.C. Gen. Stat. \u00a7 7A-289.32(2) (Cum. Supp. 1983). If this judgment is supported by the evidence and findings of fact, it must be affirmed. Respondent has failed to except to any of the findings of fact, they are therefore conclusive on appeal. In re Apa, 59 N.C. App. 322, 296 S.E. 2d 811 (1982). We reject respondent\u2019s argument that because she has excepted to the court\u2019s conclusion of law that the findings are supported by clear, cogent and convincing evidence, the sufficiency of the evidence to support the entire body of the findings is thus presented for review. Such broadside exceptions have always been considered ineffective by our appellate courts. Once substantial evidence has been introduced, whether that evidence reaches the level necessary to support a finding, whether beyond a reasonable doubt or clear, cogent and convincing, rests essentially with the finder of fact. See Addington v. Texas, 441 U.S. 418 (1979). The finder\u2019s decision will not ordinarily be reviewable. See Jackson v. Virginia, 443 U.S. 307, reh\u2019g denied, 444 U.S. 890 (1979). The sufficiency of the evidence to support the findings is accordingly not before us. In re Apa, supra.\nIn cases such as this, to determine neglect the trial court may consider the original adjudication of neglect, and must also consider evidence of changed conditions to the time of hearing in light of the evidence of prior neglect and the probability of repetition of neglect. In re Ballard, 311 N.C. 708, 319 S.E. 2d 227 (1984). It is not essential that there be evidence of culpable neglect following the initial adjudication. See In re Johnson, 70 N.C. App. 383, 320 S.E. 2d 301 (1984). Here the court found that the child was in the bottom five percent of children in her age group in weight, that respondent failed to supervise her properly, that the child was allowed to remain in dirty diapers and drink out of discarded bottles, and that the child, while with respondent, lived in an environment injurious to her health and welfare. See N.C. Gen. Stat. \u00a7 7A-517(21) (1981). In addition, the court found that respondent suffered mental problems resulting in inability to care for herself and adversely affecting her ability to care for a child. The court found that the various social service workers that had seen respondent up to the time of hearing found her ability to deal with reality diminished and that the social workers still took care of her affairs for her; significantly, nothing in the order suggests any real improvement in respondent\u2019s condition. We conclude that these findings support the court\u2019s conclusion that respondent\u2019s parental rights should be terminated under G.S. \u00a7 7A-289.32(2); In re Ballard, supra. The evidence clearly showed that the problems which caused the injurious environment had continued and probably would recur.\nRespondent argues that in its focus on her mental condition, the trial court attempted to in fact terminate her parental rights for mental illness, see N.C. Gen. Stat. \u00a7 7A-289.32(7) (1981), but erroneously ignored that section\u2019s requirement that the court find a reasonable probability that the incapability to provide proper care will continue throughout the child\u2019s minority. We disagree. The ground for termination was neglect. Facts evidencing physical neglect were properly found, sufficient to support a determination that the child was neglected. The review of respondent\u2019s own condition was necessary to determine that this neglect probably would recur. In re Ballard, supra; see In re Castillo, -- N.C. App. ---, 327 S.E. 2d 38 (1985) (court must consider all evidence of neglect and probability of repetition). Absent such evidence showing likelihood of repetition, it is doubtful that individual instances of neglect will support termination, except in exceptional cases. See e.g., In re Moore, 306 N.C. 394, 293 S.E. 2d 127 (1982) (violent, likely sexual, abuse), appeal dismissed sub nom., Moore v. Guilford County Dept. of Social Services, 459 U.S. 1139 (1983).\nRecent decisions support our result on this issue. In In re Montgomery, 311 N.C. 101, 316 S.E. 2d 246 (1984) the supreme court affirmed termination on grounds of neglect where there was little evidence of deleterious physical conditions, although the parents did have a history of poverty and failure to get the children to school. The parents\u2019 mental retardation apparently swayed the court to conclude that erratic attention to education and basic material needs would continue, sufficient to support termination for neglect. Similarly, in In re McDonald, 72 N.C. App. 234, 324 S.E. 2d 847 (1985), we affirmed termination where the only instance of active neglect involved smoking near gasoline. However, general inadequate care, and, more importantly, chronic alcoholism, supported termination of parental rights. The findings of neglect were proper and supported the court\u2019s order in accord with the law.\nRespondent assigns error because the tape device used to record the trial did not work (the record was subsequently reconstructed with the help of trial counsel). Tape recording of trials in district court is permitted by law. N.C. Gen. Stat. \u00a7 7A-198 (1981). Absent contemporaneous objection to the use of tape devices, to show prejudicial error an appellant must at least indicate the import of some specific testimony or other proceeding that has been lost. In re Peirce, 53 N.C. App. 373, 281 S.E. 2d 198 (1981). Simply conjecturing, as respondent has done, that there may have been objections to critical testimony, without showing why any such testimony ought to have been excluded, will not support reversal, particularly when as here trial counsel assists in reconstructing the record.\nFinally, respondent contends that the trial court erred in refusing to exercise its discretion not to terminate and in failing to find facts for this refusal. Irrespective of the existence of grounds for termination, the court retains discretionary authority to dismiss the petition in the best interests of the child. N.C. Gen. Stat. \u00a7 7A-289.31(b) (1981); In re Montgomery, supra. The statute only requires findings of fact when the court chooses to exercise this discretion. We are aware of no requirement that the court find facts in declining to do so. The order terminating rights must itself provide the legal basis, including requisite findings, for termination. The legislature has determined as a policy matter, in the interest of the child, that an order so supported will suffice to terminate parental rights. No further findings are required.\nThe order appealed from is therefore\nAffirmed.\nJudges JOHNSON and Cozort concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Ruff Bond, Cobb, Wade & McNair, by Robert S. Adden, Jr. and William H. McNair, joining on the brief Ronald L. Chapman, guardian ad litem, for petitioner Department of Social Services.", "Harper, Connette & Stovall, by Lois H. Grace Stovall, for respondent Caldwell." ], "corrections": "", "head_matter": "IN THE MATTER OF: BIANCA LAPRENA CALDWELL, minor child, MECKLENBURG COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner, and TERESA VALAY CALDWELL, and ROMERO CLARK, Respondents\nNo. 8426DC1138\n(Filed 18 June 1985)\n1. Appeal and Error \u00a7 19\u2014 pauper\u2019s appeal \u2014 motion not timely \u2014 fees paid \u2014 heard on the merits\nThe trial court correctly denied respondent leave to proceed on appeal in forma pauperis where respondent did not file her motion within ten days of the expiration of the session at which judgment was rendered; however, all fees and printing charges were paid, the Court of Appeals therefore had jurisdiction, and the case was heard on the merits. G.S. 1-288 (1983).\n2. Appeal and Error 8 28.2\u2014 sufficiency of evidence to support findings \u2014not raised by broadside exception\nThe sufficiency of the evidence to support the findings was not before the Court of Appeals in a termination of parental rights action where respondent failed to except to any findings of fact. An exception to the court\u2019s conclusion that the findings were supported by clear, cogent and convincing evidence did not present the entire body of findings for review.\n3. Parent and Child \u00a7 1\u2014 termination of parental rights \u2014conclusion supported by findings\nThe court\u2019s findings supported the conclusion that respondent\u2019s parental rights should be terminated under G.S. 7A-289.32(2) where the court found that the child was in the bottom five percent of children in her age group in weight, that respondent failed to supervise her properly, that the child was allowed to remain in dirty diapers and drink out of discarded bottles, that the child lived in an environment injurious to her health and welfare, that respondent suffered from mental problems resulting in inability to care for herself and adversely affecting her ability to care for a child, that social workers who took care of respondent\u2019s affairs for her found her ability to deal with reality diminished, and that nothing suggested any real improvement in respondent\u2019s condition.\n4. Parent and Child \u00a7 1\u2014 termination of parental rights \u2014not based on mental illness\nThe trial court did not attempt to terminate respondent\u2019s parental rights for mental illness without the required finding of a reasonable probability that the inability to provide proper care would continue throughout the child\u2019s minority where facts evidencing physical neglect were found and were sufficient to support a determination that the child was neglected. The review of respondent's condition was necessary to determine that the neglect would probably recur.\n5. Appeal and Error \u00a7 42; Parent and Child \u00a7 1.5\u2014 termination of parental rights \u2014 failure of tape-recording equipment \u2014 no prejudice shown\nIn an action for the termination of parental rights, there was no prejudicial error where the tape device used to record the trial did not work. Simply conjecturing that there may have been objections to critical testimony without showing why any such testimony ought to have been excluded will not support reversal, particularly when trial counsel assists in reconstructing the record. G.S. 7A-198 (1981).\n6. Parent and Child \u00a7 1.5\u2014 termination of parental rights \u2014 refusal to exercise discretion not to terminate \u2014 findings not required\nThe trial court did not err by failing to find facts for the refusal to exercise its discretion not to terminate parental rights. The order terminating rights must itself provide the legal basis for termination and include requisite findings; no further findings are required.\nAppeal by respondent Teresa Valay Caldwell from Matus, Patrick, Judge. Order entered 7 June 1984 in MECKLENBURG County District Court. Heard in the Court of Appeals 14 May 1985.\nThis is a parental rights action concerning Bianca LaPrena Caldwell, born in March 1982. Respondent Romero Clark, the child\u2019s father, consented to termination of his parental rights. Respondent Caldwell (hereinafter respondent) contested termination. The evidence at hearing showed that while in respondent\u2019s care the child weighed only seventeen pounds at thirteen months, in the fifth percentile for her age group. The child was always dirty and lived in unsanitary conditions. Respondent suffered from severe emotional and mental problems, including psychosis and schizophrenia, and had difficulty dealing with reality. She stipulated the child was neglected in May 1983. The child was placed in foster care. The Department of Social Services (hereinafter DSS) filed a petition to terminate parental rights in November 1983; upon hearing and further psychological evaluation, respondent\u2019s parental rights were terminated. She appealed.\nRuff Bond, Cobb, Wade & McNair, by Robert S. Adden, Jr. and William H. McNair, joining on the brief Ronald L. Chapman, guardian ad litem, for petitioner Department of Social Services.\nHarper, Connette & Stovall, by Lois H. Grace Stovall, for respondent Caldwell." }, "file_name": "0299-01", "first_page_order": 331, "last_page_order": 336 }