An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-858

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2003

In the Matter of:

                                Madison County       &nb sp;
                                No. 00 J 38
S.D.

    Appeal by respondents from judgment entered 11 January 2002 by Judge C. Randy Pool in District Court in Madison County. Heard in the Court of Appeals 13 March 2003.

    Leake & Scott, by Ward D. Scott, for petitioner-appellees.

    Carlton, Rhodes & Carlton, by Gary C. Rhodes, for respondent- mother.

    Elizabeth A. Hansen, for respondent-father.


    HUDSON, Judge.

    Factual Background
    S.D., the minor child named in the Petition to Terminate Parental Rights in the present case, was born to respondent/mother Elisha Dearnley and respondent/father Stoney Pritchard on 26 February 2000. On 26 August 2000, the district court in Madison County entered an order for non-secure custody removing the child from his mother and placing him in the custody of the Madison County Department of Social Services (DSS). Subsequently, on 4 October 2000, the court adjudicated S.D. neglected and dependent, and continued DSS's custody of the child.
    On 30 January 2001, the district court held a dispositionalhearing. By order 3 April 2001, the district court continued DSS's custody of the child and further ordered that DSS cease reunification efforts with the parents. Also on 3 April 2001, the court held a permanency planning hearing and ordered that the permanency plan be adoption of the minor child.
    On 10 August 2001, DSS filed a petition to terminate the parental rights of both the mother and father. Before the 31 October 2001 hearing on the petition to terminate parental rights, upon motion, the court allowed DSS to amend the petition to add an additional ground for termination. At the hearing, both respondents moved to continue the proceedings to allow more time to prepare, which motions were denied. On 11 January 2002, the district court terminated the parental rights of the mother and father. Both now appeal.
Analysis
    Respondents each assign as error the trial court's denial of their individual motions for a continuance made in court on the date of the hearing. Respondent/mother argues that because Petitioner filed a motion to amend the petition to add an additional ground for termination of her parental rights just six days before the hearing, the trial court abused its discretion in denying her motion to continue. Respondent/father argues that he was served with the petition to terminate his parental rights on 22 August 2001, however he did not learn from DSS that he was the father of the child until the following day, although a paternity test was performed approximately fifteen months prior. For thefollowing reasons, we find no abuse of discretion on the part of the trial court.
    A motion to continue a proceeding is addressed to the sound discretion of the trial court and a ruling on a motion to continue will not be disturbed on appeal absent an abuse of that discretion. State v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997). Relative to juvenile proceedings, G.S. . 7B-803 provides that:
        The court may, for good cause, continue the hearing for as long as is reasonably required to receive additional evidence, reports, or assessments that the court has requested, or other information needed in the best interests of the juvenile and to allow for a reasonable time for the parties to conduct expeditious discovery. Otherwise, continuances shall be granted only in extraordinary circumstances when necessary for the proper administration of justice or in the best interests of the juvenile.

G.S. . 7B-803 (2001).
    Respondent/mother was personally served with a summons and a copy of the petition on 21 August 2001. She did not file an answer to the petition in accordance with G.S. . 7B-1101, although she did file a hand written statement objecting to the termination of her parental rights. Although her court appointed attorney, Edward Krause, wrote to her about a month before the 31 October 2001 court date, the first time Mr. Krause spoke with her about the petition was on the day of the hearing.
    We find nothing in the record to indicate that the trial court requested or required additional information to address the best interests of the child, or that the respondent/mother was unfairly surprised or that her ability to contest the petition wasprejudiced by the denial of her motion. Accordingly, we find no abuse of discretion and overrule this assignment of error.
    Although respondent/father was personally served with a copy of the summons and petition on 22 August 2001, he did not file an answer. Before the hearing on 31 October 2001, respondent/father's attorney attempted to contact him several times but got no response. Respondent/father has made no showing of what additional evidence he would have presented to the court had the matter been continued, or of how he was prejudiced by not having additional time. As such, we are unable to conclude that the trial court's actions in denying the continuance amounted to an abuse of discretion.
    Respondents next argue that the trial court erred in finding sufficient grounds to terminate their parental rights. We disagree.
    Termination of parental rights proceedings are conducted in two phases: adjudication and disposition. See generally, In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). During the adjudication phase, the petitioner has the burden of proving by clear, cogent and convincing evidence that one or more of the statutory grounds for termination exist. In re Nolen, 117 N.C. App. 693, 698, 453 S.E.2d 220, 223 (1995). The standard for appellate review of the trial court's conclusion that grounds exist for termination of parental rights is whether the trial judge's findings of fact are supported by clear, cogent, and convincing evidence, and whether these findings support its conclusions oflaw. In re Huff, 140 N.C. App. 288, 292, 536 S.E.2d 838, 841 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). The statutory grounds for termination are set forth in G.S. § 7B-1111(a).
    If the petitioner meets its burden of proving that there is at least one of the statutory grounds to terminate parental rights, the trial court then moves to the disposition phase and must consider whether termination is in the best interests of the child. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906 (2001). The trial court does not automatically terminate parental rights in every case that presents statutory grounds to do so. The trial court has discretion, if it finds that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the child's best interests. Id. The trial court's decision to terminate parental rights is reviewed by an abuse of discretion standard. In re Brim, 139 N.C. App. at 745, 535 S.E.2d at 374 (2000).
    As to respondent/mother, the trial court found that there was clear, cogent, and convincing evidence that three grounds existed to terminate her parental rights, pursuant to G.S. § 7B-1111(a)(1), (2), and (3). G.S. § 7b-1111(a)(1) provides that the trial court may terminate the parental rights upon finding that “[t]he parent has abused or neglected the juvenile.” On the question of neglect, the trial court 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, 296S.E.2d 811, 813 (1982). The trial court may consider a prior adjudication of neglect, but must also consider any evidence of changed conditions and the probability of repetition of neglect. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.” Id.
    In the original neglect proceeding, the trial court found that respondent/mother neglected S.D. due to her limited contact with the child, her failure to provide constant and consistent care for the juvenile, and her failure to provide the juvenile with a secure living arrangement.
    Here, the trial court found that respondent/mother's neglect continued to the date of the hearing. Among other findings, the trial court noted that respondent/mother had no contact with S.D. from January 2001 up to the date of the hearing on 31 October 2001. In the absence of evidence that she was unable to make contact or denied access to the child, this finding tends to support a conclusion that respondent/mother withheld the “personal contact, love, and affection that inheres in the parental relationship.” In re APA, 59 N.C. App. at 324, 296 S.E.2d at 813.
    The trial court also concluded that grounds existed to terminate respondent/mother's parental rights under section 7B- 1111(a)(2), which allows the termination of parental rights where “[t]he parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing. . . that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile.” G.S. . 7B-1111(a)(2).
    Following the adjudication of neglect, the court gave a specific set of directives to respondent/mother and DSS. In accordance with the court's directives, DSS developed a case plan with respondent/mother for reunification with her child. The court noted that as of the date of the termination proceeding, respondent/mother:
        has failed to follow the court's directives and [DSS's] case plan as follows: she has failed to undergo parenting education; she attended counseling for three sessions, then she unilaterally stopped going to her counseling; she was allowed regular and frequent supervised visitation with the juvenile until she ceased visitation with the juvenile; she has failed to obtain and maintain stable housing; she has failed to obtain and maintain full time employment; she has failed to obtain a G.E.D. or equivalent; she has made one $20.00 payment for the support of her minor child and has otherwise failed to pay for the support of her minor child despite the ability to do so; [and] she has failed to submit herself for a psychological evaluation and has failed to obtain a substance abuse assessment.

    The juvenile code requires that the parent's actions in leaving the child in foster care be willful for those actions to be grounds for the termination of parental rights. G.S. § 7B- 1111(a)(2). If poverty is the sole reason for leaving a child in foster care, then termination of parental rights on this ground is inappropriate. Id.
    Here, respondent/mother did not explain how, if at all, herpoverty affected her ability to complete any of the court's directives. Indeed, respondent/mother testified that she was able to purchase a pack of cigarettes a day, at a cost of one dollar and fifty cents, for two years prior to the hearing date and while S.D. was in foster care, yet was unable to make any more than one twenty dollar payment for the care of her child. We conclude that the trial court's findings establish that respondent/mother's actions in leaving her child in foster care were willful, and constituted grounds to terminate her parental rights under this section of the statute.
    Finally, the trial court found as grounds to terminate respondent/mother's parental rights due to her willful failure to pay a reasonable portion of the cost of care for the child while the child was in foster care pursuant to G.S. § 7B-1111(a)(3). As part of the dispositional order entered in the neglect proceeding, respondent/mother was ordered to pay twenty dollars per week for the support and care of her child when she obtained full time employment. At the termination proceeding, the trial court found that respondent/mother was not disabled, had held several jobs, but had only made one twenty dollar payment as of the date of the hearing.
Thus, we hold that clear, cogent and convincing evidence supported the findings, which, in turn support the conclusions that one or more statutory grounds existed to terminate respondent/mother's parental rights, and that the trial court did not abuse its discretion in concluding that such termination was inthe best interests of the child.
    As to respondent/father, the trial court found that there was clear, convincing, and cogent evidence that grounds existed to terminate his parental rights under sections 7B-1111(a)(1), (3), and (5).
    Pursuant to section 7b-1111(a)(1), the trial court may terminate the parental rights upon finding that “[t]he parent has abused or neglected the juvenile.” As discussed above, in addressing neglect the trial court may consider a parent's complete failure to provide the personal contact and affection inherent in the parental relationship, and must be guided by the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding. In re APA, 59 N.C. App. at 324, 296 S.E.2d at 813.
    The evidence presented at the termination hearing clearly established that respondent/father has had no contact whatsoever with S.D. He argues, however, that without contact there can be no neglect. As noted above, our courts have held that a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship constitutes neglect. In re APA, 59 N.C. App. at 324, 296 S.E.2d at 813. Thus, we conclude that the evidence was sufficient to support the findings and adjudication of grounds for termination of the father's parental rights under section 7b-1111(a)(1).
    Although the court need only find one statutory ground to terminate, here the court found as a second ground for terminatingrespondent/father's parental rights, that he had failed to pay a reasonable portion of the cost of care for his child while in foster care. Specifically, the trial court found that respondent/father had the ability to pay support for his child at least since January 2001, that he had been properly notified of the court hearings prior to the termination hearing, and that he had contacted DSS after being served with the juvenile petition alleging neglect and dependency, yet failed to make any payments in support of his minor child.
    Based upon the foregoing, we find that clear, cogent and convincing evidence supported the findings, which, in turn support the conclusions that one or more statutory grounds existed to terminate respondent/father's parental rights, and that the trial court did not abuse its discretion in concluding that such termination was in the best interests of the child.
    In conclusion, we hold that the trial court did not abuse its discretion in denying respondents' motions for a continuance and that the trial court did not err in terminating both respondents' parental rights.
    Affirmed.
    Judges MCGEE and STEELMAN concur.
    Report per Rule 30(e).

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