An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .




                                 NO. COA13-855

                       NORTH CAROLINA COURT OF APPEALS

                           Filed: 18 February 2014




IN THE MATTER OF:                           New Hanover County
                                            Nos. 11 JT 128, 130
T.M.M., N.D.M.



      Appeal by respondent-mother from orders entered 15 November

2012 and 22 May 2013 by Judge J.H. Corpening, II, in New Hanover

County District Court.         Heard in the Court of Appeals 27 January

2014.


      Staff Attorney Gail Carelli for petitioner-appellee                    New
      Hanover County Department of Social Services.

      Richard Croutharmel for respondent-appellant mother.

      Troutman Sanders LLP, by Jennifer M. Hall, for guardian ad
      litem.


      BRYANT, Judge.


      Respondent-mother      appeals    from    the   trial   court’s   22   May

2013 order terminating her parental rights to T.M.M. and N.D.M.,

as   well   as   the   trial    court’s    16   November      2012   permanency
                                      -2-
planning order ceasing reunification efforts.             We affirm in part

and dismiss in part.

    On 9 May 2011, the New Hanover County Department of Social

Services (“DSS”) obtained nonsecure custody of T.M.M. (“Tom”),

N.D.M.   (“Nancy”)     and   C.D.M.    (“Cody”)   and    filed    a    juvenile

petition    alleging   abuse   and    neglect.1    DSS    filed   an   amended

petition on 17 May 2011.       The petition alleged that one-year-old

Cody was presented to his daycare with cuts and bruises on his

face and lip, as well as hand-shaped bruising on his back and

buttocks.      Neither   respondent,     nor   Cody’s    father   (“Herman”),

offered a plausible explanation for the injuries.             The petitions

further alleged that based on the injuries sustained by Cody,

Tom and Nancy were living in an environment injurious to their

welfare and not receiving proper care or supervision.

    In an order entered on 21 September 2011, the trial court

adjudicated all three children neglected, based on respondent’s

stipulation.     The trial court found as fact the allegations

contained in the petitions and continued custody of the children

with DSS.

    In a permanency planning order entered 16 November 2012,

the trial court relieved DSS of reasonable reunification efforts

1
   Tom, Nancy and Cody are pseudonyms used to protect the
identities of the juveniles pursuant to N.C.R. App. P. 3.1(b).
                                        -3-
and changed the permanent plan for the children to adoption.

The trial court found that the children had “been in foster care

for seventeen (17) months without any parent demonstrating a

consistent long-term commitment to addressing the issues which

caused the children to come into the Department’s custody[.]”

The court further found that during a trial home placement with

Tom, DSS received a report that Herman was back in respondent’s

home; that respondent admitted he had been in her home on three

occasions;     that   Tom   had    witnessed        domestic    violence    between

Herman   and   his    mother;     and   that   by    exposing    Tom   to   Herman,

respondent acted in contravention of prior court orders.

    On 14 December 2012, DSS filed a petition to terminate

respondent’s parental rights to Tom and Nancy, alleging neglect

as the sole ground for termination.                 See N.C. Gen. Stat. § 7B-

1111(a)(1) (2011).       Prior to the petition, respondent and Herman

relinquished their parental rights to Cody.                     The trial court

conducted a termination of parental rights hearing on 22 and 25

April 2013.     In an order entered on 22 May 2013, the trial court

found the existence of neglect as a ground for termination.                     The

trial court also concluded that it was in the juveniles’ best
                                          -4-
interest to terminate respondent’s parental rights.2                       Respondent

appeals.

                                           I.

       In her first argument on appeal, respondent challenges the

trial    court’s       cessation    of    reunification        efforts    in   its    16

November 2012 permanency planning order.                  Because respondent has

not properly preserved this issue for appeal, we dismiss her

argument.

       Pursuant to N.C. Gen. Stat. § 7B-507(c), “[a]t any hearing

at    which     the    court    orders    that    reunification        efforts    shall

cease,    the    affected       parent,   guardian,       or   custodian    may    give

notice to preserve the right to appeal that order in accordance

with G.S. 7B-1001.”             N.C.G.S. § 7B-507(c) (2013).             Furthermore,

such an order may be appealed only if it is “properly preserved”

in accordance with N.C. Gen. Stat. 7B-1001(a)(5).

       Here,     respondent      failed   to     give   notice    to    preserve     her

right to appeal the order ceasing reunification efforts.                             She

neither objected at the hearing, nor filed a written notice of

intent to appeal the order at any time during the pendency of

the     case.         Because    respondent      failed    to    comply    with      the

statutory requirements of N.C.G.S. §§ 7B-507(c) and 1001(b)(5),

2
  The trial court also terminated the parental rights of Tom and
Nancy’s fathers, but they are not parties to this appeal.
                                              -5-
she has not preserved this issue for appellate review.                               In re

S.C.R.,    198    N.C.    App.    525,     530,      679    S.E.2d    905,    908   (2009)

(declining to address the respondent’s challenge to an order

ceasing    reunification         efforts       where   the       respondent   failed     to

give    notice    of     intent    to    preserve          his   right   to   appeal    in

accordance with a prior version of the statute).

                                              II.

       In her second argument on appeal, respondent challenges the

trial    court’s       termination       of    her     parental      rights    based    on

neglect.      North      Carolina       General      Statutes,        section       7B-1111

provides, in pertinent part:

            (a)    The court may terminate the parental
                   rights upon a finding of one or more of
                   the following:

                   (1)     The parent has abused or neglected
                           the juvenile. The juvenile shall
                           be   deemed   to   be   abused  or
                           neglected if the court finds the
                           juvenile to be an abused juvenile
                           within the meaning of G.S. 7B-101
                           or a neglected juvenile within the
                           meaning of G.S. 7B-101.

N.C.G.S. § 7B-1111(a)(1) (2013).                    Neglect, in turn, is defined

as follows:

            Neglected juvenile. — A juvenile who does
            not receive proper care, supervision, or
            discipline  from   the  juvenile’s parent,
            guardian, custodian, or caretaker; or who
            has been abandoned; or who is not provided
                                 -6-
          necessary medical care; or who is not
          provided necessary remedial care; or who
          lives in an environment injurious to the
          juvenile’s welfare; or who has been placed
          for care or adoption in violation of law.

N.C. Gen. Stat. § 7B-101(15) (2013).

    The   following   findings   of   fact   address   this   ground   for

termination:

          6.   That   the    Department    first    became
               involved with [respondent] due to her
               child [Cody] presenting to daycare with
               intentionally inflicted bruises on his
               face, thigh, and buttocks.          Neither
               [respondent]      or    [Cody’s]     father
               [Herman]    could    offer    a  plausible
               explanation as to how those bruises
               occurred.    All three [] children were
               adjudicated neglected on August 24,
               2011.    Both [Herman] and [respondent]
               subsequently       relinquished       their
               parental rights to [Cody] on October
               15,   2012    and     October   31,    2012
               respectively.

          7.   That [Tom] has been in therapy with
               Shelley   Chambers  continuously   since
               October 2012.     He is diagnosed with
               Adjustment Disorder with mixed emotions
               and conduct, Post Traumatic Stress
               Disorder, and is a Child Victim of
               Abuse. That he has had multiple foster
               care    placements   due    to    severe
               behavioral problems.   That he suffers
               from anxiety, guilt and trauma related
               to witnessing domestic violence in the
               home.     That he has disclosed to
               therapist Chambers that he witnessed
               his mother being assaulted by [Herman]
               on more than one occasion.      That he
               remains fearful of [Herman].        That
                    -7-
     exposure to [Herman] is traumatizing to
     him, and is a significant trigger to an
     adverse    emotional    reaction    and
     regression in behavior.    That he has
     also had some emotional conflict in
     attaching to his current foster parent,
     as his mother has made him feel
     disloyal if he forms a bond with his
     foster mother.   That he has expressed
     feeling safe in his current foster
     placement.

8.   That [Herman] did assault [respondent]
     on more than one occasion, that he has
     left visible marks including bruises
     and   scratches,   and   that   he has
     assaulted [respondent] in the presence
     of [Tom] on more than one occasion.
     That this Court finds [respondent’s]
     often contradictory testimony to the
     contrary, in light of all the evidence
     presented, to lack credibility.

9.   That notwithstanding the completion of
     parenting classes, empowerment classes,
     and individual therapy for over a year,
     [respondent] has yet to demonstrate any
     understanding   of    the   effects   of
     domestic violence on her children.
     That the testimony of her therapist and
     her own testimony illustrates to this
     Court   that   [respondent]    does  not
     understand the cycle of abuse or how it
     pertains to her.    That during a trial
     home placement of [Tom] in June and
     July of 2012, [respondent] sought out
     [Herman] and invited him to her home on
     more   than   one    occasion.      That
     [respondent’s] pattern of engaging in
     abusive relationships and the failure
     to understand how to avoid them poses a
     significant and ongoing risk of neglect
     to her children should they be returned
     to her care.
                                       -8-


    We review the trial court’s order to determine “whether the

trial court’s findings of fact were based on clear, cogent, and

convincing evidence, and whether those findings of fact support

a conclusion that parental termination should occur[.]”                    In re

Oghenekevebe, 123 N.C. App. 434, 435—36, 473 S.E.2d 393, 395

(1996) (citation omitted).             Respondent specifically challenges

portions of finding of fact numbers 7 through 9.                  The remaining

findings of fact remain uncontested because respondent does not

challenge them.       See In re M.D., 200 N.C. App. 35, 43, 682

S.E.2d 780, 785 (2009).          We address each challenged finding in

turn.

    Respondent    disputes       the    portion   of   finding    number   7   in

which the trial court found that Tom’s exposure to Herman is

traumatizing    and    is    a    significant      trigger   to    an   adverse

emotional   reaction    and      regression   in    behavior.        Respondent

essentially argues that this finding is not supported by the

testimony of Tom’s therapist.           We disagree.     Shelley Chambers, a

licensed clinical social worker, testified at the termination

hearing.    Chambers was Tom’s therapist and had seen him 17 times

since October 2012.         Chambers testified that Tom was “diagnosed

with an adjustment disorder with mixed disturbance of emotions

and conduct, and he has symptoms as well with post-traumatic
                               -9-
stress, and he’s a child victim of abuse.”    Chambers elaborated

on Tom’s diagnoses, indicating that he was holding onto the

memories of domestic violence, that his behavioral issues were

related to post-traumatic stress, and that there were certain

triggers to his behaviors.   Chambers also provided the following

testimony:

         Q.   Could you comment on what the impact on
              [Tom] might be if he were returned home
              to his mother and she did engage in
              another -- if [Herman] did come around
              or another person who was abusive
              towards her was around?

         A.   Well, it could -- it could stunt his
              emotional growth. You know, due to the
              experience that he’s had very early,
              he’s already, you know, at great risk
              for    anxiety   and    depression.    So,
              encountering        another        violent
              relationship could be very consuming to
              him and it could put a lot of energy
              into protecting his mom. It could
              impede    his  social,    emotional,   and
              academic success for sure.

              . . .

         Q.   And just to be clear, if [Tom] were
              ever exposed to [Herman], even just to
              see him, whether or not he was behaving
              in a violent manner towards his mother,
              would that be a traumatizing thing for
              him?

         A.   It would be a very significant trigger
              for a traumatic reaction.
                                           -10-
This    testimony       directly       supports        the      finding    disputed   by

respondent.         We therefore reject her argument to the contrary.

       In finding of fact number 8, the trial court found that

Herman assaulted respondent in the presence of Tom on more than

one occasion and that respondent’s testimony to the contrary

lacked credibility.          Respondent appears to challenge the trial

court’s finding regarding her credibility.                        However, it is not

our    duty    to     re-weigh   the    credibility          of   the     witnesses   and

substitute our judgment for that of the trial court.                          See In re

Hughes, 74 N.C. App. 751, 759, 330 S.E.2d 213, 218 (1985) (“The

trial judge determines the weight to be given the testimony and

the reasonable inferences to be drawn therefrom.                          If a different

inference may be drawn from the evidence, he alone determines

which inferences to draw and which to reject.”).                           We therefore

reject respondent’s argument.

       In    finding    of   fact    number       9,    respondent      challenges    the

trial       court’s    finding      that    she        failed     to    demonstrate    an

understanding of the effects of domestic violence.                          She disputes

this finding for a number of reasons: she completed domestic

violence classes, entered into a safety plan, and has developed

relationships in the community; she testified that she did not

understand the implications of allowing Herman into her home and
                                               -11-
that it would not happen again; that the finding was based on

events    that    happened      in       the   summer       of     2012;    and    that    DSS’s

evidence was speculative.                We disagree.             Several of respondent’s

arguments overlook the crux of the finding: that she failed to

demonstrate an understanding of the effects of domestic violence

despite having completed several components of her case plan.

       Furthermore, after reviewing the record, we find the trial

court’s finding to be supported by the evidence.                                  The evidence

shows that Herman was physically abusive to respondent, and that

Tom    witnessed         at   least       some        of     the     domestic       violence.3

Respondent admitted that she allowed Herman in her home in the

summer    of     2012    on   at     least      three       occasions.            Furthermore,

respondent’s       foster       mother         testified          that     Herman    was    not

respondent’s first abusive relationship.                           Tom’s father was also

violent    towards        respondent.             Respondent’s             therapist,      Dawn

Richard, testified that she was aware of both of respondent’s

abusive relationships.               Although she and respondent discussed

Herman, Richard found out that Herman was back in respondent’s

home   only      after    Tom      was    removed          from    the     trial    placement.



3
  Respondent also asserts that the child protective services
(“CPS”) investigator’s testimony on this matter is impermissible
hearsay.   Respondent, however, offers no argument or   citation
to legal authority in support of her assertion.     We therefore
decline to address this contention. See N.C.R. App. P. 28(6).
                                  -12-
Richard testified that the incident concerned her “[b]ecause he

wasn’t supposed to be coming around because of the concern of

having   [Herman]   around   [respondent]    due    to   the    history    of

domestic violence and because of the concern of having [Tom]

exposed to the domestic violence.”

    Richard confirmed that she discussed with respondent the

effect of having Herman around Tom.         Nonetheless, when asked if

respondent   understood   the   consequences,      Richard     testified   as

follows:

           Q.   Do you feel that [respondent] ever
                really demonstrated to you a true
                understanding of the impact of having
                [Herman] around [Tom] would have on
                [Tom]? Did she -- did she really under
                -- did she ever get that? Do you feel
                like she got that?

           A.   I don’t think so. I think -- I think
                she wanted to at times, but I don’t --
                I don’t think she really understood how
                that correlated.

           Q.   And with respect to -- I know -- when
                was the last interaction you had or the
                last therapy you had with [respondent]?

           A.   Late October of 2012.

           Q.   And at that time would you           say that
                there   was   still  a  risk          of   her
                potentially    engaging   in           abusive
                relationships?

           A.   Yes.
                                                -13-
Additionally, Maureen Murphy, the DSS social worker assigned to

respondent’s          case,     testified       that      respondent       had    been    making

progress on her case plan but that she did not understand the

impact    of     domestic        violence       on     her    children      absent      physical

harm.     We find the foregoing evidence sufficient to support the

trial court’s finding.

       Respondent also challenges the trial court’s conclusion of

law in which it found neglect as a ground for termination.                                     It

is well-established that “[a] finding of neglect sufficient to

terminate       parental        rights     must      be      based    on   evidence      showing

neglect    at    the      time     of     the   termination          proceeding.”         In   re

Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citation

omitted); see also In re Ballard, 311 N.C. 708, 715, 319 S.E.2d

227, 232 (1984) (“The determinative factors must be the best

interests of the child and the fitness of the parent to care for

the     child        at   the      time    of     the     termination           proceeding.”).

However, where the child is not in the custody of the parents at

the    time     of    the     termination        hearing,        trial     courts      generally

“employ a different kind of analysis to determine whether the

evidence supports a finding of neglect.”                               In re Shermer, 156

N.C.    App.     281,       286,    576     S.E.2d        403,       407   (2003)      (citation

omitted).            Because     the    determinative           factor     is    the    parent’s
                                              -14-
ability to care for the child at the time of the hearing, we

previously have explained that “requiring the petitioner in such

circumstances to show that the child is currently neglected by

the    parent       would        make     termination          of     parental     rights

impossible.”        Id.

       Under such circumstances, “a prior adjudication of neglect

may be admitted and considered by the trial court in ruling upon

a later petition to terminate parental rights on the ground of

neglect.”       Ballard,         311    N.C.   at    713—14,    319    S.E.2d    at    231.

However,      the    prior       adjudication,        standing        alone,    does    not

support termination based on neglect.                       “The trial court must

also consider any evidence of changed conditions in light of the

evidence of prior neglect and the probability of a repetition of

neglect.”       Id. at 715, 319 S.E.2d at 232 (citation omitted).

Thus, a trial court may find either that neglect existed at the

time of the hearing or “that grounds for termination exist upon

a   showing    of    a    ‘history       of    neglect   by     the    parent    and   the

probability of a repetition of neglect.’”                           In re L.O.K., 174

N.C.   App.     426,      435,    621     S.E.2d     236,     242     (2005)    (citation

omitted).

       Respondent argues that the trial court failed to specify

the time period in which Tom observed domestic violence between
                                             -15-
his mother and Herman.4                Therefore, respondent argues, it is

unclear    as    to    whether       the   trial    court       relied    solely       on    the

underlying       adjudication          of     neglect        instead        of       properly

considering      evidence       of    changed       circumstances.              We    are    not

persuaded by respondent’s argument.                     The trial court concluded

that respondent “[has] neglected the children and that there is

ongoing neglect and a likelihood of repetition of neglect[.]”

Thus, the trial court’s conclusion of law explicitly shows that

it   did   not    base    its    decision       on    the       past     adjudication        of

neglect.        Furthermore,         the     findings      of    fact     show       that   the

likelihood of repetition was based on the events that happened

after Tom’s trial placement in the summer of 2012 — nearly a

year after the adjudication.                  Lastly, we must again point out

that   respondent’s       argument         overlooks       the    root     of    the       trial

court’s conclusion.         Respondent admitted that she allowed Herman

into   her      home   during        Tom’s    trial       placement,      and        that    Tom

witnessed domestic violence.                 Regardless of whether the domestic

violence     occurred     in     the       summer    of    2012     or    prior       to    the

children’s removal, it is clear that Tom was exposed to domestic



4
  Respondent also raises this same argument in her challenges to
the findings of fact.        Because we are addressing it in
connection with her challenge to the trial court’s conclusion of
law, we need not address it in connection with each of the
challenged findings of fact.
                                    -16-
violence and witnessed Herman abuse his mother.            The findings

also establish that Tom’s exposure to Herman was emotionally

damaging.     Because respondent readily invited Herman into her

home,   the   trial   court   was   justified   in   concluding   that   a

repetition of neglect was likely in the future.            We therefore

hold that the trial court’s conclusion of neglect was supported

by its findings of fact, and we affirm the trial court’s order

terminating respondent’s parental rights.

    Affirmed in part; dismissed in part.

    Judges HUNTER, Robert C., and STEELMAN concur.

    Report per Rule 30(e).
