In Re: Sims, (02-692) 04/01/2003

Appeal by respondent Chevy Jeremy Sims, Sr. from an order entered 26 February 2002 by Judge Joseph Williams in Union County District Court. Heard in the Court of Appeals 23 January 2003.

Perry, Bundy, Plyler & Long, LLP, by Dale Ann Plyler, for petitioner-appellee; William L. McGuirt for Guardian Ad Litem.

Duncan B. McCormick for respondent-appellant Chevy Jeremy Sims, Sr.

    HUNTER, Judge.

    Chevy Jeremy Sims, Sr. (“respondent Sims”) appeals from an order terminating his parental rights to his son, Chevy Jeremy Sims, Jr. (“C.J.”). For the reasons set forth herein, we conclude there was clear, cogent, and convincing evidence to support groundsfor terminating respondent Sims' parental rights and that termination was in the minor child's best interests.
    On 23 April 2001, the Union County Department of Social Services (“Union County DSS”) filed a petition seeking to terminate the parental rights of Denise Ann Knotts and respondent Sims as to C.J. and Denise Ann Knotts and Pierre Collins as to C.J.'s half sister, Tietana Nicole Williams (“Tietana”). A hearing was held on 2 January 2002 and 31 January 2002 in Union County District Court. The trial court filed an order terminating respondent Sims' parental rights on 26 February 2002.
    Respondent Sims and Denise Ann Knotts are the parents of C.J., who was born 10 October 1995. A trial court placed the minor child with Union County DSS on 9 September 1999, and DSS retained legal and physical custody of the child from that date through January 2002, when the hearing was held on the petition to terminate respondent Sims' parental rights. On 20 October 1999, C.J. was adjudicated as a neglected and dependent juvenile.
    The evidence at trial tended to show that during the term of the custody proceedings concerning C.J., respondent Sims never asked to be considered as a placement for his child due to the fact that he was living with a girlfriend, or at a hotel, during the time this matter was pending. However, respondent Sims suggested several times that his mother, Debbie Sims (“Ms. Sims”), be considered as a placement for C.J. Ms. Sims indicated that she was willing to accept placement of C.J. but not C.J.'s half sister, Tietana. In addition, on 26 September 2001, the date of apermanency planning hearing, Ms. Sims had two children of her own, was unemployed, and had not visited with C.J. for over two years.
At this permanency planning hearing and the termination hearing, Union County DSS recommended that C.J. and Tietana stay together because they had developed a substantial bond. C.J. told the judge presiding over the permanency planning hearing that he wanted to visit with his grandmother, Ms. Sims, but that he wanted to stay in placement with his sister.
    After C.J. was placed in the custody of Union County DSS on 9 September 1999, respondent Sims first visited C.J. in April 2001. Between April 2001 and January 2002, respondent had approximately seven or eight visits with C.J. All of these visitations were supervised. While C.J. was in the custody of Union County DSS, respondent Sims did not provide C.J. with Christmas or birthday presents. Further, respondent Sims did not participate in the numerous Permanency Outcome Review Team (“PORT”) meetings concerning the custody or permanency arrangements for C.J.
    The cost to maintain C.J. in foster care was $400.00 per month. Respondent Sims has not paid any child support or any reasonable portion of the cost of care for C.J. There was also evidence that respondent Sims never reported to the Union County Child Support Enforcement Agency to begin paying child support for his child. At the time of the termination hearing, respondent Sims had been employed for approximately seven months with Charlotte Cab and had been in the cab driving business for two years. Respondent Sims was earning approximately $250.00 per week after expenses andwas living in a hotel which cost him $175.00 per week. Respondent Sims had saved $800.00 in a six month period and indicated that he planned to use this money to obtain housing for him and his child. Respondent Sims testified that he thought he would have the total needed within two months of the termination hearing.
    After hearing the evidence, the trial court made extensive findings of fact and concluded the following: (1) respondent Sims had willfully failed to provide for his child's physical and economic needs while having the ability to do so; (2) respondent Sims neglected his minor child; (3) respondent Sims willfully failed to pay a reasonable portion of the cost of care for his child for a period of six months preceding the filing of the petition, although physically and financially able to do so; (4) respondent Sims was incapable of providing for the proper care and supervision of his child and there is a reasonable probability that such incapability will continue for the foreseeable future; and (5) respondent Sims willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition for termination of parental rights. The court further concluded that the best interests of the child required termination of parental rights, and therefore, ordered that the parental rights of respondent Sims be terminated. Respondent Sims appeals.
    Respondent Sims contends that Union County DSS has not proven by clear, cogent, and convincing evidence that a statutory ground for termination of parental rights exists. Respondent Sims additionally argues that the trial court abused its discretion byconcluding that terminating respondent Sims' parental rights was in the best interests of the minor child. We will address each in turn.
    At the outset, a termination of parental rights proceeding consists of two stages -- the adjudicatory stage and the dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence that a statutory ground for termination exists. Id. The grounds for termination of parental rights are listed in N.C. Gen. Stat. § 7B-1111 (2001). “This Court reviews the adjudicatory phase to determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence, and, if so, whether these findings in turn support the trial court's conclusions of law.” In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166, 169 (2002). If the trial court finds that a ground for termination exists, the trial court then moves to the dispositional stage to determine whether it is in the best interests of the child to terminate the parental rights. In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81, 86 (2002).
    In the case sub judice, the court found neglect as one of the grounds for terminating respondent Sims' parental rights. Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), a court may terminate parental rights upon a finding that the parent has neglected the juvenile. A “neglected juvenile” is defined as:
        A juvenile who does not receive proper care, supervision, or discipline from the juvenile'sparent, 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. . . .

N.C. Gen. Stat. § 7B-101(15) (2001). “When the court's findings of neglect are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary.” In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). In order for a court's finding of neglect to be sufficient to terminate parental rights, such finding 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). The trial court may consider a prior adjudication of neglect when ruling upon a later petition to terminate parental rights on the ground of neglect. In re Ballard, 311 N.C. 708, 713- 14, 319 S.E.2d 227, 231 (1984). However, “[t]he 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. In determining whether neglect has occurred, “the trial judge may consider . . . a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.” In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982).
    Respondent Sims asserts that no clear, cogent, and convincing evidence exists to support the trial court's finding that he neglected his minor child. We disagree.    The trial court found the following, to which respondent Sims takes no exception, to support its conclusion that respondent Sims had neglected his son: Respondent Sims' child was adjudicated as a neglected and dependent juvenile by Order dated 20 October 1999. In addition, during the term of the custody proceedings, respondent Sims has not requested to be considered as a placement for his child due to the fact that he was living with a girlfriend, or at a hotel, during the time the matter was pending. On 26 September 2001, respondent Sims requested that his mother, Ms. Sims, be considered as a placement for his child. However, at the 26 September 2001 hearing regarding custody of C.J. and Tietana, Union County DSS recommended that the siblings stay together. Respondent Sims' mother was only willing to accept the placement of C.J. In addition, respondent Sims did not attend any of the numerous PORT meetings concerning the custody of his minor child nor had he given his son Christmas or birthday presents since the child's placement in the custody of Union County DSS on 9 September 1999. Further, respondent Sims had not paid any child support or any reasonable portion of the cost of care for his child during the term of this action nor had he reported to the Union County Child Support Enforcement Agency to begin paying child support for his child. The trial court also found that respondent Sims had visited his child approximately seven or eight times between April 2001 and January 2002. All of these visitations had been supervised. Although not noted in the trial court's findings, respondent Sims testified that his first visit after his son was placed in thecustody of Union County DSS on 9 September 1999, occurred in April 2001.
    Since respondent Sims has taken no exception to the findings of fact listed above, they are presumed to be correct and supported by the evidence. See In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982). Nevertheless, we have reviewed the transcript and conclude that these findings are supported by competent evidence. Thus, we conclude there is clear, cogent, and convincing evidence supporting the trial court's determination that respondent Sims had neglected his minor child.
    This Court has held that “[a] valid finding on one statutorily enumerated ground is sufficient to support an order terminating parental rights.” In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986). Therefore, since we have concluded that there is clear, cogent, and convincing evidence supporting the trial court's finding of neglect, it is unnecessary for us to address the remaining assignments of error challenging the sufficiency of the evidence to terminate, based on other statutory grounds. However, we note that the following additional grounds for termination found by the trial court were also established by clear, cogent, and convincing evidence: (1) respondent Sims has willfully failed to provide for his child's physical and economic needs while having the ability to do so; (2) respondent Sims' child has been placed in the custody of Union County DSS for a continuous period of six months preceding the filing of the petition and respondent Sims has willfully failed for such period to pay areasonable portion of the cost of care for his child, although physically and financially able to do so; and (3) respondent Sims has willfully abandoned the minor child for at least six consecutive months immediately preceding the filing of the petition.
    We now turn to the dispositional stage. Respondent Sims contends the trial court abused its discretion in finding that it was in the best interests of the minor child to terminate respondent Sims' parental rights.
    When the trial court finds one or more grounds exist authorizing the termination of parental rights, the court shall issue an order of termination unless it determines that it would not be in the best interests of the child to terminate parental rights. N.C. Gen. Stat. § 7B-1110(a) (2001). “The trial court's decision to terminate parental rights, if based upon a finding of one or more of the statutory grounds supported by evidence in the record, is reviewed on an abuse of discretion standard.” In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). “[W]here there is a reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is given discretion not to terminate rights.” In re Montgomery, 311 N.C. 101, 108, 316 S.E.2d 246, 251 (1984).
    Respondent Sims argues that the evidence established a reasonable hope that the family unit would be able to reunitewithin a reasonable period of time since (1) respondent Sims' mother was willing to provide a home for the minor child, and (2) respondent Sims testified that he had saved $800.00 over the six- month period preceding the termination hearing and would be able to save sufficient funds to obtain housing suitable for his child within two months from the termination hearing date.
    We conclude the trial court did not abuse its discretion in determining that it was in the child's best interests to terminate respondent Sims' parental rights based on the following evidence: While the minor child was in foster care from September 1999 until the date of the hearing in January 2002, respondent Sims did not begin visiting the child until April 2001 and had only visited the child seven or eight times between April 2001 and January 2002. A home study was conducted on the home of respondent Sims' mother, Ms. Sims, by Mecklenburg County DSS. Following the study, Ms. Sims' home was not recommended as a placement for the child due to Ms. Sims' financial obligations and the amount of living space in her home. At the time of the permanency planning hearing on 26 September 2001, Ms. Sims had not visited with her grandson for over two years. In addition, it was determined from the home study that there was insufficient room in Ms. Sims' home for two additional children. Further, at the 26 September 2001 hearing, the child indicated that he wished to remain in foster care with his half sister and only wanted to visit with his grandmother, Ms. Sims. Union County DSS maintained that it was important to keep the children together due to the bond they had developed. The fosterparents, who are physically and mentally in good condition and are financially able to care for the children, are interested in adopting both children. Based on this evidence, we conclude that the trial court's termination of respondent Sims' parental rights was in the minor child's best interests.
    Our review of the record shows that there was clear, cogent, and convincing evidence to support grounds for terminating respondent Sims' parental rights and it was in the minor child's best interests to do so. Accordingly, we affirm the trial court's order terminating respondent Sims' parental rights.
    Affirmed.
    Judges McGEE and CALABRIA concur.
    Report per Rule 30(e).

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