IN RE:
JONATHAN TAYLOR BETTS,
Juvenile. Cumberland County
No. 01 J 358
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.
Affirmed.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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