In re: C.B., D.B. , 245 N.C. App. 65 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-644
Filed: 19 January 2016
Madison County, No. 13 JT 13-15
IN THE MATTER OF: C.R.B, D.G.B., and C.M.B.
Appeal by respondent-mother from orders entered 24 February 2015 by Judge
Hal G. Harrison in Madison County District Court. Heard in the Court of Appeals 16
December 2015.
Leake & Stokes, by Larry Leake, for petitioner-appellee Madison County
Department of Social Services.
Parker Poe Adams & Bernstein LLP, by Jason R. Benton, for Guardian ad
Litem.
Michael E. Casterline, for respondent-appellant mother.
CALABRIA, Judge.
Respondent-mother (“Mother”) appeals from the trial court’s orders
terminating her parental rights to the minor children C.B., D.B., and C.B. (“the
children”). For the reasons that follow, we affirm.
I. Background
In January 2013, petitioner Madison County Department of Social Services
(“DSS”) conducted a “family assessment” of Mother and the children after six-year-
old D.G.B. was discovered unattended in a car. During the assessment, “other
concerns regarding the family became apparent.” Specifically, Mother suffers from
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numerous debilitating mental illnesses as well as substance dependence and an
“[e]xtremely [l]ow” intellectual capacity. The majority of Mother’s infirmities stem
from years of sexual and physical abuse that she suffered at the hands of her father.
Due to this myriad of mental and physical health issues, Mother was unable to
provide proper care for the children.
Although the children’s maternal grandmother had been assisting in their
care, DSS expressed concern over her ability to appropriately supervise the children.
Consequently, after DSS filed petitions alleging neglect and dependency, it obtained
non-secure custody of the children in March 2013 and placed them in foster care.
Shortly thereafter, Mother consented to the entry of an order that adjudicated the
children to be neglected. Mother then signed a case plan formulated to address, inter
alia, her mental health, substance abuse, and intellectual disability issues. As part
of the plan toward Mother’s reunification with the children, DSS worked “directly
with [the] October Road-Assertive Community Treatment Team to insure that all [of
Mother’s] medical and mental needs [were] met.” By attending all scheduled DSS
meetings, completing a domestic violence education program, and undergoing a
parenting capacity evaluation, Mother accomplished certain goals contained in her
case plan. She also attended weekly supervised visits with the children. However,
Mother failed to complete a substance abuse assessment. Mother’s visitation was
suspended in September 2013 upon recommendation of the children’s therapist. At
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that time, Mother had not completed the October Road program, and in January
2014, the permanent plan was changed from reunification to adoption.
In March 2014, DSS filed petitions to terminate Mother’s and the unknown
father(s)’ parental rights to the children. The petitions alleged that five statutory
grounds existed to terminate Mother’s parental rights. When the trial court
conducted its termination hearing on 12 January 2015, Mother was in Georgia and
claimed she was unable to secure transportation back to North Carolina. Her counsel
moved the court for a continuance, but the motion was denied.
At the termination hearing, social worker Shanna Young (“Young”) testified on
behalf of DSS. Her testimony was based, in part, on the DSS report (“the report”)
filed with the trial court on 6 January 2015 in anticipation of the 12 January hearing.
The report contained other DSS updates which had been addressed to and filed with
the trial court at previous hearings on this matter. Mother repeatedly objected to
Young’s testimony from the case file as hearsay, but the trial court overruled each of
those objections. The trial court also denied Mother’s motion to strike the portions of
Young’s testimony regarding events and circumstances that occurred before August
2014, the time at which Young was assigned to work on the children’s cases.
On 24 February 2015, the trial court entered adjudication and disposition
orders terminating Mother’s parental rights. The court concluded that two grounds
existed to terminate Mother’s parental rights: (1) her failure to make reasonable
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progress to correct the conditions that led to the children’s removal from her care,
and (2) her inability to provide the proper care or supervision for the children coupled
with a reasonable probability that such inability would continue for the foreseeable
future. See N.C. Gen. Stat. § 7B-1111(a)(2), (6) (2013). As a result, the court
determined that terminating Mother’s parental rights was in the children’s best
interests. Mother appeals from these orders.
II. Analysis
Trial courts conduct termination of parental rights proceedings in two distinct
stages: adjudication and disposition. In re Montgomery, 311 N.C. 101, 110, 316
S.E.2d 246, 252 (1984). At “the adjudication stage, the trial court must determine
whether there exists one or more grounds for termination of parental rights under
N.C. Gen. Stat. § 7B–1111(a).” In re D.H., ___ N.C. App. ___, ___, 753 S.E.2d 732, 734
(2014); see also N.C. Gen. Stat. § 7B–1109(e) (2013). Our appellate review of the
adjudication is limited to determining whether clear, cogent, and convincing evidence
exists to support the court’s findings of fact, and whether the findings of fact support
the court’s conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838,
840 (2000). Even if there is evidence to the contrary, the trial court’s findings are
binding on appeal when “supported by ample, competent evidence[.]” In re S.C.R.,
198 N.C. App. 525, 531, 679 S.E.2d 905, 909 (2009). However, we review conclusions
of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
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“If the trial court determines that at least one ground for termination exists, it
then proceeds to the disposition stage where it must determine whether terminating
the rights of the parent is in the best interest[s] of the child, in accordance with N.C.
Gen.[]Stat. § 7B–1110(a).” D.H., ___ N.C. App. at ___, 753 S.E.2d at 734. We review
the trial court’s determination of the child’s best interests for an abuse of discretion,
In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002), which occurs only
when “the court’s ruling is manifestly unsupported by reason or is so arbitrary that
it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C.
279, 285, 372 S.E.2d 523, 527 (1988).
Pursuant to N.C. Gen. Stat. § 7B–1111(a)(2), a court may terminate parental
rights when “[t]he parent has willfully left the juvenile in foster care or placement
outside the home for more than [twelve] 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.” N.C. Gen. Stat.
§ 7–1111(a)(2).
A finding of willfulness here does not require proof of
parental fault. On the contrary, [w]illfulness is established
when the respondent had the ability to show reasonable
progress, but was unwilling to make the effort. A finding
of willfulness is not precluded even if the respondent has
made some efforts to regain custody of [her child].
In re A.W, ___ N.C. App. ___, ___, 765 S.E.2d 111, 115 (2014) (internal quotation
marks and citations omitted). “This standard operates as a safeguard for children. If
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parents were not required to show both positive efforts and positive results, ‘a parent
could forestall termination proceedings indefinitely by making sporadic efforts for
that purpose.’ ” In re B.S.D.S., 163 N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004)
(quoting In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995)).
Mother first argues that the following two findings in the trial court’s
adjudication order are based on improperly admitted hearsay testimony:
19. [Mother] did have diagnostic testing, showing the IQ of
53, with very little ability to function. The record reflects
that [Mother] had a parental capacity evaluation by Dr.
Mary DeBeus, which reported that due to her low
functioning level, additional testing could not be
completed. During the twenty-two (22) months that the
juveniles have been in the custody of [DSS], [Mother] has
failed to complete her Court Ordered case plan, in large
part due to [Mother’s] mental health diagnoses of cyclical
mood disorder involving psychotic features, post-traumatic
stress disorder, poly-substance dependence, bipolar
disorder, borderline personality disorder, and traumatic
brain injury. Her mental health status has resulted in
cycles of hospitalization, with stabilization of her
symptoms after hospitalization, then digression upon her
return home. [Mother] is unable to care for herself or her
hygiene; is unable to provide adequate care for her
children; and her symptoms are triggered by the stress of
being around the juvenile and his siblings.
...
21. There was no documentation of a substance abuse
assessment, and at the time of [DSS] being relieved of its
efforts in the fall of 2013, . . . Mother had not completed
the October Road Program.
Specifically, Mother contends the trial court erred by admitting the portions of
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Young’s testimony in which she relied on information contained in DSS’s report.
In Mother’s view, because Young read from the report and testified “to
circumstances and events about which she had no first-hand knowledge,” a
significant amount of her testimony constituted inadmissible hearsay and provided
the evidentiary support for findings of fact 19 and 21. According to Mother, since
these findings were “critical” to the trial court’s conclusion that her parental rights
should be terminated based, in part, on her failure “to show progress in alleviating
the causes of the children’s removal” pursuant to subdivision 7B–1111(a)(2), there
would have been “insufficient competent evidence to support th[is] ground[] for
termination” if the court had properly sustained Mother’s hearsay objections to
Young’s testimony. We disagree.
Generally, a “witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that he has personal knowledge of the matter.” N.C.
Gen. Stat. § 8C–1, Rule 602 (2013). Furthermore, “ ‘[h]earsay’ is a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C–1, Rule
801(c) (2013). Unless allowed by statute or the Rules of Evidence, hearsay evidence
is not admissible in court. N.C. Gen. Stat. § 8C–1, Rule 802 (2013). This Court has
previously determined that even though a witness’s knowledge was “limited to the
contents of [the] plaintiff’s file with which he had familiarized himself, he could
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properly testify about the records and their significance so long as the records
themselves were admissible under the business records exception to the hearsay
rule[.]” U.S. Leasing Corp. v. Everett, Creech, Hancock and Herzig, 88 N.C. App. 418,
423, 363 S.E.2d 665, 667 (1988).
Pursuant to the business records exception, the following items of evidence are
not excluded by the hearsay rule, even though the declarant is unavailable as a
witness:
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness.
N.C. Gen. Stat. § 8C–1, Rule 803(6) (2013). Qualifying business records are
admissible under Rule 803(6) “when a proper foundation . . . is laid by testimony of a
witness who is familiar with the . . . records and the methods under which they were
made so as to satisfy the court that the methods, the sources of information, and the
time of preparation render such evidence trustworthy.” In re S.D.J., 192 N.C. App.
478, 482, 665 S.E.2d 818, 821 (2008) (citations and internal quotation marks omitted).
In the instant case, Mother is wrong to suggest that Young was not qualified
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to introduce and testify to the report, which was comprised of the DSS business
records in question. “While the foundation must be laid by a person familiar with the
records and the system under which they are made, there is ‘no requirement that the
records be authenticated by the person who made them.’ ” Id. at 482–83, 665 S.E.2d
at 821 (citation omitted); see also Barber v. Babcock & Wilcox Constr. Co., 98 N.C.
App. 203, 208, 390 S.E.2d 341, 344 (1990) (under Rule 803(6), safety specialist for
defendant-employer was qualified to authenticate and introduce the results of a test
performed by a private laboratory because “he was familiar with the system used by
his company in obtaining tests and filing the results with his office”), reversed on
other grounds on reh’g, 101 N.C. App. 564, 400 S.E.2d 735 (1991). Not only was Young
familiar with the report, she personally signed it and appears to be one of its authors.
Furthermore, although the report was never offered into evidence at the
termination hearing, the majority of its contents—previous DSS updates addressed
to the trial court—had been admitted at prior hearings, and the report as a whole
would have been admissible under the business records exception to the hearsay rule.
Specifically, Young testified that she had reviewed and was familiar with DSS’s case
file on this matter, that she had kept and maintained the file since her employment
with DSS, and that the file’s contents were maintained during the “regular, ordinary
course of [DSS’s] business.” Given this foundation, Young’s testimony regarding
matters contained in DSS’s business records—namely, the circumstances and events
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underlying the petition to terminate Mother’s parental rights—was clearly
admissible under the rule announced in U.S. Leasing Corp. It is equally clear that
Young’s testimony amply supported the challenged findings.
III. Conclusion
In sum, we conclude that findings 19 and 21 were fully supported by Young’s
testimony, which was admissible under the business records exception to the hearsay
rule. These findings, which are based on clear, cogent, and convincing evidence,
support the trial court’s conclusion that a sufficient ground pursuant to subdivision
7B-1111(a)(2) existed to terminate Mother’s parental rights to the children based on
her willfulness in leaving the children in foster care for at least twelve months and
her failure to make reasonable progress in correcting the conditions that led to the
their removal from her care. Finding 21 specifically demonstrates that Mother failed
to complete vital portions of her case plan while the children were in foster care.
Accordingly, the trial court did not abuse its discretion by determining that the
termination of Mother’s parental rights was in the best interests of the children.
Since “[a] valid finding on one statutorily enumerated ground is sufficient to support
an order terminating parental rights[,]” we need not address Mother’s remaining
arguments challenging the other ground for termination found by the trial court. In
re Greene, 152 N.C. App. 410, 416, 568 S.E.2d 634, 638 (2002) (citations omitted;
second alteration added).
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AFFIRMED.
Judges ELMORE and ZACHARY concur.
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