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.
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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