An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Proced ure.

NO. COA02-577


Filed: 7 January 2003

    Juvenile.                             Cumberland County
                                     No. 01 J 358

    Appeal by respondent from order entered 1 November 2001 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 23 December 2002.

    David Kennedy for petitioner appellee Cumberland County Department of Social Services.

    Mary March Exum for respondent appellant.

    McCULLOUGH, Judge.

    Respondent Luis Almario is the putative father of the minor child Jonathan Taylor Betts born on 20 February 1998. Cumberland County Department of Social Services (DSS) filed a petition to terminate respondent's parental rights on 28 June 2001. This matter was heard by the district court on 16 October 2001. The evidence tends to show that the minor child came into the care of DSS immediately after his mother, Shelia Betts, died in an automobile accident on 19 November 2000. Respondent was never married to Betts, was not named as father on the child's birth certificate, and has never taken any judicial action to establish paternity of the minor child. At the time of Betts' death, respondent was incarcerated for convictions of various sex offensesinvolving an older sibling of the minor child. Respondent's projected release date is in 2021, at which time the minor child will be 23 years old. Prior to his incarceration in September 1998, respondent testified that he supported the minor child by “buying diapers, medication, and giving [Betts] some . . . money, whatever she need[ed] to buy him.” Respondent testified that he was working for a meat plant while incarcerated, and earned $6.00 per week. Respondent had not, however, sent any money to assist in the care for the minor child. Respondent also testified that he had completed the DART and PRE-SOAR programs while incarcerated. Moreover, respondent stated that he was scheduled to take the SWORD and “Thinking for Change” programs to assist him in changing previous negative behaviors. Respondent did not have any family who could care for the minor child. Respondent had, however, found a couple through a fellow inmate, who agreed to adopt the child. The minor child's foster parents were also interested in adopting the child.
    After hearing the evidence and arguments of counsel, the trial court found the existence of the following grounds for termination: (1) that respondent had willfully left the minor child in foster care for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made to correct the conditions which led to the minor child's removal; (2) that respondent failed to establish paternity judicially or to legitimate the minor child or file a petition for that purpose, or to legitimate the child by marriage to the child'smother, or to provide substantial financial support or consistent care for the child and mother; and (3) that respondent is incapable of providing proper care and supervision of the minor child and there is a reasonable probability that such incapability will continue. The trial court, therefore, concluded that it was in the best interest of the minor child to terminate the parental rights of respondent. Respondent appeals.
    On appeal, respondent argues that the trial court erred in finding and concluding that DSS had proved by clear, cogent and convincing evidence that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(2), (5), and (6) to terminate his parental rights. We disagree.
    North Carolina's statutory scheme provides a two-step process for the termination of parental rights. In re Mitchell, 148 N.C. App. 483, 488, 559 S.E.2d 237, 241 (2002). During the adjudicatory stage, the petitioner must prove, by clear, cogent and convincing evidence, that at least one ground for the termination of parental rights under N.C. Gen. Stat. § 7B-1111(a) exists. In re Nolen, 117 N.C. App. 693, 698, 453 S.E.2d 220, 223 (1995). Once at least one of the grounds for termination is established, the trial court proceeds to the dispositional stage where the best interests of the child are taken into consideration. In re Hardesty, 150 N.C. App. 380, 385, 563 S.E.2d 79, 83 (2002). If the trial court determines that it is in the child's best interests to terminate parental rights, the trial court has the discretion to do so, and the court's decision in this regard is reviewable only for an abuse ofthat discretion. In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).
    In reviewing a trial court's decision to terminate a parent's rights as to his/her minor child(ren), this Court must determine whether the trial court's findings of fact were based on clear, cogent and convincing evidence, and whether those findings support a conclusion that parental termination should occur on the grounds stated. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). If so, the order terminating parental rights must be affirmed. In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985).
    Here, the evidence, as presented by DSS through the testimony of respondent, showed that the minor child was born out of wedlock to his now deceased mother; that respondent, his putative father, was presently incarcerated and would be so until the minor child was 23 years old; that respondent was incarcerated as the result of being convicted of taking indecent liberties with the minor child's older brother; that respondent failed to establish paternity of the child judicially or by affidavit, or to legitimate the minor child prior to, or after his incarceration; that prior to his incarceration, he bought diapers and medications for the minor child, and gave the deceased mother money for various other expenses, but after incarceration, despite having a work release assignment, had failed to provide any support for the minor child's care in foster care; that respondent did not have any relatives inthe area, and attempts to have his mother in Nevada take the minor child failed; that respondent has participated in a prison drug treatment program and has been scheduled to participate in a prison sex offenders program.
    We would note that the trial court did not make extensive findings in its order of termination. Instead, the court “took judicial notice of the underlying file in this matter, 98J727.” The record does not reveal the matters contained in that file, because respondent has failed to include any document from the file outside of a “Permanency Planning Review Order.” It is well settled that there is a presumption of regularity and correctness in the trial court proceedings. Coppley v. Coppley, 128 N.C. App. 658, 663, 496 S.E.2d 611, 616, disc. review denied, 348 N.C. 281, 502 S.E.2d 846 (1998). It is equally well settled that “'[i]t is the appellant's responsibility to make sure that the record on appeal is complete and in proper form.'” Id. (quoting Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988)).
    While it would certainly have been a better practice for the court to make specific findings regarding those matters it was taking judicial notice of in the underlying case file, on this record, the absence of such findings is not fatal. Counsel has failed to identify error on the face of this record. Indeed, the evidence, as presented through respondent's own testimony, establishes the grounds for the termination of respondent's parental rights by clear, cogent and convincing evidence. Moreover, although respondent testified as to his love of the childand his wish to be a part of his child's life, he also testified to his willingness to have the child adopted since he would be incarcerated until the child's majority. Even assuming that respondent was not willing to have the child adopted, there was still ample evidence before the trial court upon which the court could properly conclude that it was in the best interests of the minor child to terminate respondent's parental rights. The trial court, therefore, did not abuse its discretion in this regard.
    Having so concluded, the order of the trial court is affirmed.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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