Matter of Caldwell

330 S.E.2d 513 (1985)

In the Matter of Bianca Laprena CALDWELL, minor child, Mecklenburg County Department of Social Services, Petitioner; and Teresa Valay Caldwell, and Romero Clark, Respondents.

No. 8426DC1138.

Court of Appeals of North Carolina.

June 18, 1985.

*515 Ruff, Bond, Cobb, Wade & McNair by Robert S. Adden, Jr. and William H. McNair, joining on the brief Ronald L. Chapman, guardian ad litem, Charlotte, for petitioner Dept. of Social Services.

Harper, Connette & Stovall by Lois H. Grace Stovall, Charlotte, for respondent Caldwell.

WELLS, Judge.

Respondent attempted to appeal in forma pauperis pursuant to N.C.Gen.Stat. § 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 forma 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. § 1-288 and struck its order allowing appeal in forma pauperis. Respondent assigns error.

G.S. § 1-228 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.

The trial court found that respondent's parental rights should be terminated under N.C.Gen.Stat. § 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's argument that because she has excepted to the court's 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 *516 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, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). The finder's decision will not ordinarily be reviewable. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh'g denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979). The sufficiency of the evidence to support the findings is accordingly not before us. In re Apa, supra.

In 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. § 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's condition. We conclude that these findings support the court's conclusion that respondent's parental rights should be terminated under G.S. § 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.

Respondent 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. § 7A-289.32(7) (1981), but erroneously ignored that section's requirement that the court find a reasonable probability that the incapability to provide proper care will continue throughout the child's 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's own condition was necessary to determine that this neglect probably would recur. In re Ballard, supra; see In re Castillo, 73 N.C. App. 539, 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, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983).

Recent 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' 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 *517 were proper and supported the court's order in accord with the law.

Respondent 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. § 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.

Finally, 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. § 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.

The order appealed from is therefore

Affirmed.

JOHNSON and COZORT, JJ., concur.