Opinion
No. COA02-778
Filed 5 August 2003 This case not for publication
Appeal by respondent from judgment entered 9 August 2001 by Judge Gary S. Cash in Buncombe County District Court. Heard in the Court of Appeals 12 May 2003.
Charlotte Wade, for the petitioner. Hall Hall, P.C., by Douglas L. Hall, for respondent.
Buncombe County No. 00 J 260.
This action arises out of a petition for the termination of parental rights of the respondent, Anita Wyatt Redmon Roberts, mother of Jennifer Camille Redmon ("the minor child"). The father of the minor child filed a petition to terminate respondent's parental rights alleging multiple grounds for termination, including: (1) neglect, (2) dependency, and (3) abandonment. A hearing on the petition was conducted, and on 9 August 2001, the trial court terminated respondent's parental rights in the minor child. Respondent mother did not attend the termination proceedings.
The trial court found, in pertinent part, the following:
11. The respondent mother has a significant history of involvement with the Buncombe County Department of Social Services over issues of neglect and abuse of her minor children, including this minor child. . . .
12. [Respondent mother has] significant mental health issues and prior suicide attempts, which led to the neglect of this minor child and all of her siblings.
13. [On] January 16, 1996, . . . the respondent mother left the petitioner and this minor child. . . . The respondent mother later stated that she did not take [the minor child] because she didn't know where she would be staying.
14. When the respondent mother left on January 16, 1996, she moved with her other two children into a house with two men, one of which was a convicted, untreated child molester, and the respondent mother was aware of this individual[']s criminal history.
. . . .
18. [T]he respondent mother [made] false accusations of abuse and neglect against the petitioner all of which subjected the minor child to numerous investigations and interviews by the Buncombe County Department of Social Services. . . . The reports . . . were attempts by her to harass the petitioner and an attempt to have this minor child removed from the care of the petitioner, which would have been extremely detrimental to the welfare of this minor child.
19. After the minor child was placed in the custody of the petitioner in 1996, the respondent mother had very little contact with the minor child. . . .
20. . . . The respondent mother has had one telephone contact with the minor child, on Christmas day, 1999, which was the last contact she had with the minor child. [She] has not provided any cards, letters, gifts, etc. . . . [T]he respondent mother has not made much effort in maintaining contact with the minor child. . . .
21. . . . [R]espondent mother acknowledged . . . that she was not bonded to [the minor child]. . . .
22. . . . The Department has a long history of involvement with the respondent mother, and became involved again with the respondent mother in August, 2000, based upon allegations that the mother was using crack cocaine, was involved in domestic violence with her boyfriend, Terry Anders, and that she was not providing appropriate supervision of the two siblings of the minor children. The Department substantiated these allegations, based upon an investigation which indicated that a 13 year old sibling of this minor child was not attending school on a regular basis, she was abusing substances, specifically marijuana, and that the respondent mother was aware of the use and abuse of illegal substances by the minor child, but the respondent mother was allowing the child to use these substances. Further, the Department substantiated neglect in that the respondent mother was not providing supervision for the 4 year old sibling of this minor child, and the respondent mother was exposing both children to her substance abuse use and domestic violence.
23. Two further protective service (CPS) investigations were done by the Buncombe County Department of Social Services. The allegations of the CPS investigation of January 31, 2001, were that the respondent mother was observed buying crack cocaine for her 13 year old daughter, that the 13 year old daughter was cutting on her wrist, and that the mother was abusing drugs. The respondent mother and the 13 year old daughter denied all allegations. Before the Department finished its investigation, it received another CPS report.
24. The second CPS report was received on February 14, 2001, which alleged that the mother was using crack cocaine and at 4:14 a.m. law enforcement was called to her home due to a violent fight she was having with her boyfriend, Terry Rhodes, and that the respondent mother was threatening to beat up and kick her 13 year old daughter out of the house. The social worker for the Department requested that both the respondent mother and the 13 year old daughter have drug tests to determine whether either of them was using drugs, but neither party would submit to a drug test. The Department substantiated neglect in that the 13 year old was hit during a fight between her mother and Terry Rhodes.
. . . .
[27]. The respondent mother has a history of mental health problems and suicide attempts. On August 7, 1999, the respondent mother was admitted to Pardee Memorial Hospital at her own request. The records from this admission were admitted into evidence and indicate that the respondent mother is a chronically mentally ill, disabled adult, who has had many psychiatric admissions beginning in the late 1980[']s. In the opinion of the psychiatrist who saw her on that occasion, Dr. Frank Miller, the respondent mother's reason for getting herself admitted to the hospital at that time was for drugs, that she was seeking to obtain drugs she could abuse, specifically benzodiazepines. . . . When the respondent mother was advised that she would not be admitted, she "continued to spiral nearly to the point of out of control behavior, yelling and demanding admission and began to state that she was then suicidal."
The respondent mother's past psychiatric history given at this admission indicated that the respondent mother had been married and divorced twice, that she had at least 6 to 10 abusive relationships with drug addicted and alcoholic men, . . . that two of [her] children had been permanently removed from her care for neglect, failure to supply these children with adequate food nutrition, proper environment, support and medical care; and the respondent mother admitted to a long history of substance abuse which she herself refused to describe or characterize.
. . . .
In Dr. Miller's opinion, at that time of this admission, the respondent mother had a chronic borderline personality disorder of the highest level, that she requires structured psychiatric follow-up care, that she is not a competent and fit mother; her behavioral issues continue to be chaotic and socially primitive, that her prognosis overall is quite poor; and that without consistent treatment by the respondent mother to seriously address her underlying mental condition [it] would not improve. The court finds that the opinion of Dr. Miller was credible and accurately reflects the respondent mother's mental health condition throughout the history of this case.
[28]. The respondent mother has continued to have psychiatric admissions to various hospitals, she has continued to make suicide gestures, she has continued to abuse illegal and prescription drugs, and she has never seriously or consistently addressed her many mental health issues. . . . The respondent mother has not made progress in treating her disorders, and she has not participated in pscyho-therapy as recommended by Dr. Roberts. . . .
I. CHALLENGES TO THE TRIAL COURT'S FINDINGS OF FACT
Respondent assigns as error certain findings of fact by the trial court.
We review the trial court's judgment to determine "whether the court's `findings of fact are based upon clear, cogent and convincing evidence' and whether the `findings support the conclusions of law.'" In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (quoting In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996)), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). Furthermore, "to obtain relief on appeal, an appellant must not only show error, but that appellant must also show that the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action." Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996).
First, respondent argues the trial court erred in Finding of Fact Number 17, in which the trial court found, in pertinent part, "the respondent mother made a false report to the Buncombe County Department of Social Services, accusing the petitioner of sexually abusing this minor child and her siblings." We agree with respondent that her objection to the admission of this evidence was sustained by the trial court and that it erroneously included the evidence in its findings. On this record, however, we do not find this error to have been materially prejudicial to respondent. See Starco, 124 N.C. App. at 335, 477 S.E.2d at 214.
Second, respondent argues the trial court, in Finding of Fact Number 22, erroneously "[found] that the Buncombe County Department of Social Services substantiated" allegations regarding respondent's use of "crack cocaine" and involvement in "domestic violence." An examination of the transcript reveals DSS substantiated neglect as a result of lack of supervision and "issues with pills." Specifically, DSS found respondent failed to adequately supervise the medication regimen for one of the other children. Further, at the time of the hearing, a DSS investigation was continuing related to substance abuse and domestic violence. In short, Finding of Fact Number 22 fairly memorializes some of the department's involvement with respondent and her children but does not accurately document it all. However, this did not prejudice respondent. The trial court specifically disallowed the testimony of the social worker for the truth of the matter asserted; the evidence was received for the trial court to understand the department's involvement and actions with respect to respondent and the minor children.
Third, respondent argues the trial court erred in Finding of Fact Number [27], which states that after respondent was admitted to Pardee Memorial Hospital for psychiatric evaluation, Dr. Miller, her treating psychiatrist, "contacted the respondent mother's therapists at Copestone and discovered that the staff at Copestone had tried to set therapeutic limits with the respondent mother during her last two hospitalizations which she reacted to adversely." Although we agree with respondent that this portion of the trial court's findings does not appear to be supported by record evidence, in light of the overwhelming multitude of evidence regarding respondent's mental health and drug abuse problems, we do not find this error materially prejudicial to the respondent. See Starco, 124 N.C. App. at 335, 477 S.E.2d at 214.
Fourth, respondent argues the trial court also erred in Finding of Fact Number [27] by finding "the opinion of Dr. Miller was credible and accurately reflects the respondent mother's mental health condition throughout the history of this case." The trial court simply observed that it had heard evidence consistent with Dr. Miller's testimony that respondent had a personality disorder which, without structured and consistent psychiatric treatment, would not improve. We find the trial court's statement a fair summary of the evidence presented. Specifically, competent evidence was presented to the trial court, through numerous physicians and agents of DSS, that respondent had a significant history of mental health and drug abuse problems and of suicide attempts. At the time of the hearing, she had "continued to make suicide gestures," "continued to abuse illegal and prescription drugs," and had never "seriously or consistently addressed her many mental health issues." We find respondent's argument without merit.
Sixth, respondent argues the trial court made two errors in Finding of Fact Number [28]. Concerning the trial court's summary of the testimony of Dr. Joseph Roberts, respondent's treating psychiatrist since 1995, the trial court's findings state respondent attempted suicide by overdose six months prior to the hearing. Respondent asserts this finding is not supported by the evidence as Dr. Roberts testified that he thought she might have attempted suicide after her father died, and he testified that he was not sure when that attempt might have occurred, though it may have been six (6) months prior to the trial. However, the trial court's finding is clearly supported by the testimony of Dr. Roberts wherein he stated, in response to petitioner's counsel's question as to when respondent last attempted suicide, "It must have been six months ago." (emphasis added).
Next, also with respect to Finding Number [28], respondent argues the trial court erred in finding that respondent's disorders adversely affected her "ability to function, and limited her ability to parent any child in that she cannot give her children the love, attention or security they need." Respondent asserts Dr. Roberts did not testify to such a conclusion. However, the record manifestly supports the trial court's finding. Specifically, the following exchange, in reference to respondent's disorders, occurred between petitioner's counsel and Dr. Roberts:
Q. And has that adversely affected her ability to function?
A. Oh, yes, it does at times, yes.
Q. In what way?
A. It prevents you from being able to concentrate and adapting. It makes you more difficult.
Q. Does it cause her problems in being able to parent children, her children?
A. It would cause some problems, of course.
Q. In what way?
A. The same way. They just aren't quite able to give what the children need totally.
Q. When you say "give the children what they need," is that like attention or —
A. Love, attention, security, time.
Lastly, respondent argues the trial court erred in Findings of Fact Numbers 22, 23, and 24. Specifically, she argues the trial court adopted allegations in the DSS reports for the truth of the matter for which they were asserted. This, however, is incorrect. On an objection by respondent, the trial court ruled it would allow evidence of allegations made to DSS only as "to what position the Department has taken and what they do as a result of those allegations, certainly not as to any truth as to whether the acts occurred." The trial court specifically states in each of the findings to which respondent assigns error that the statements in the DSS reports were merely "allegations." The findings do not comment upon the truth or falsity of the allegations complained of, but only state that they were made and what actions the department took in response to the same. Specifically, the trial court found that DSS investigated respondent "based upon allegations that the mother was using crack cocaine," and " allegations . . . that the respondent mother was observed buying crack cocaine for her 13 year old daughter, that the 13 year old daughter was cutting on her wrist, and that the mother was abusing drugs." (emphasis added). Respondent's argument is without merit.
II. PHYSICIAN-PATIENT PRIVILEGE
Defendant contends the trial court erred in allowing the testimony of respondent's treating physicians and allowing their records to be introduced into evidence. While we recognize the importance of the physician-patient privilege, see N.C.G.S. § 8-53 (2001), we also recognize "[t]he patient has the burden of establishing the existence of the privilege and objecting to the discovery of such privileged information in the first instance." Jones v. Asheville Radiological Group, 129 N.C. App. 449, 458, 500 S.E.2d 740, 745 (1998), overruled on other grounds, 350 N.C. 654, 517 S.E.2d 380 (1999). Where a patient fails to object to the admission of otherwise inadmissible evidence, the patient implicitly waives the privilege. Adams v. Lovette, 105 N.C. App. 23, 28-29, 411 S.E.2d 620, 624, aff'd, 332 N.C. 659, 422 S.E.2d 575 (1992). "Waiver by implication will be found `where [the] patient fails to object when the opposing party causes the physician to testify.'" Cates v. Wilson, 321 N.C. 1, 14, 361 S.E.2d 734, 742 (1987) (quoting Capps v. Lynch, 253 N.C. 18, 23, 116 S.E.2d 137, 141 (1960)). As respondent failed to object to the testimony of her treating physicians or to the admission of her medical records, she waived her right to the physician-patient privilege. Moreover, N.C.G.S. § 7B-1109(f) (2001), explicitly provides, in pertinent part, "no . . . physician-patient privilege shall be grounds for excluding any evidence regarding the existence or nonexistence of any circumstance authorizing the termination of parental rights."
III. CHALLENGES TO THE TRIAL COURT'S CONCLUSIONS OF LAW
A proceeding for termination of parental rights involves a two part inquiry. First, the trial court "shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. § 7B-1111 which authorize the termination of parental rights of the respondent." N.C.G.S. § 7B-1109(e) (2001).
Second, upon a finding "that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated." N.C.G.S. § 7B-1110(a) (2001).
Respondent contends the trial court erred in concluding: [B]y clear, cogent and convincing evidence that grounds exist to terminate the parental rights of the respondent mother pursuant to N.C.G.S 7B-1111(a)(1), in that she has neglected the minor child in that the respondent mother has failed and is unable to adequately provide for the minor child's physical and economic needs due to her own willful conduct and mental problems, and it appears that the respondent mother has not and will not correct these inadequate conditions as she has been unable to correct these inadequate conditions since the minor child was placed into the custody of the petitioner in 1996. Therefore, since the same conditions exist currently as when the minor child was first determined to be neglected by the respondent mother, there is a probability of a repetition of neglect.
Specifically, respondent argues the grounds cited by the trial court as supporting termination pursuant to N.C.G.S. § 7B-1111(a)(1) (2001) do not meet the statutory definition of a "neglected juvenile."
G.S. § 7B-1111(a) provides, in pertinent part, a trial court may terminate parental rights upon finding:
(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-101(15) (2001) defines a "neglected juvenile" as one:
[W]ho 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 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. . . . Contrary to respondent's assertion, we find the trial court's conclusion that respondent "neglected the minor child in that" she failed to "provide for the minor child's physical and economic needs" to be within the parameters of G.S. § 7B-101(15), which defines a "neglected juvenile" as one "who does not receive proper care, supervision, or discipline from the juvenile's parent." Many of the trial court's findings of fact supporting neglect were unchallenged and, simply put, the record evidence of neglect is compelling.
Although respondent assigns as error additional conclusions by the trial court regarding grounds under G.S. § 7B-1111 sufficient to warrant termination of respondent's parental rights, "any one or more of the conditions authorizing a termination of the parental rights" is sufficient to warrant termination. G.S. § 7B-1110(a); see also In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81, 86 (2002). It follows, then, if a conclusion that any one of the grounds in G.S. § 7B-1111 is supported by findings of fact based on clear, cogent, and convincing evidence, then the order terminating parental rights must be affirmed. In re Swisher, 74 N.C. App. 239, 328 S.E.2d 33 (1985). Therefore, we need not address respondent's remaining assignments of error addressing this issue.
Respondent also contends the trial court abused its discretion in finding that it was in the best interests of the minor child that respondent have her parental rights terminated. Specifically, respondent argues that because "[n]one of the grounds stated in the order terminating the parental rights of the Respondent Mother were, in fact, shown by clear, cogent, and convincing evidence," it was not in the best interest of the minor child that the respondent mother's parental rights be terminated.
G.S. § 7B-1110(a) provides, in pertinent part:
Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the [child] unless the court shall further determine that the best interests of the [child] require that the parental rights of the parent not be terminated.
In Pierce, 356 N.C. at 76, 565 S.E.2d 86-87, the Court stated:
upon finding adequate grounds for termination of parental rights, the trial court is empowered to terminate such rights, but it is not obligated to do so if it further determines that it is not in the child's best interests to do so. This determination of best interests is more in the nature of an inquisition, with the trial court having the obligation to secure whatever evidence, if any, it deems necessary to make this, decision. Either party may offer relevant evidence as to the child's best interests.
(citation omitteds).
With the exceptions discussed herein, the trial court's findings are supported by sufficient evidence. Furthermore, based upon evidence contained in the record including, but not limited to, respondent's medical history and prognosis, her history of drug abuse, and the desire by and opportunity for the step-mother to adopt the minor child, the trial court did not abuse its discretion in concluding that termination of respondent's parental rights was in the minor child's best interests. This assignment of error is overruled.
Upon careful review, we find respondent's remaining assignments of error without merit. They are, therefore, overruled.
Affirmed.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).