An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1212


Filed: 6 May 2003


JIMMY RAE OXENDINE                             Robeson County
    DOB: 1 JUN 94                              No. 00 J 29

    DOB: 16 MAY 97

    Appeal by respondent Sarah Oxendine from order entered 8 April 2002 by Judge Herbert L. Richardson in Robeson County District Court. Heard in the Court of Appeals 28 April 2003.

    J. Hal Kinlaw Jr. for Robeson County Department of Social Services, petitioner-appellee; and Rodney Oxendine for Guardian ad Litem.

            Tiffany Peguise-Powers for respondent appellant.

    McCULLOUGH, Judge.

    Respondent Sarah Oxendine appeals an order terminating her parental rights as the mother of Jimmy Rae and Annie Mae Oxendine.     The Robeson County Department of Social Services (DSS) initially filed two petitions in January of 2000 to terminate the parental rights of respondent to Jimmy Rae and Annie Mae. DSS subsequently filed two additional petitions in June of 2001 to terminate respondent's parental rights to each child. The petitions alleged respondent had (1) willfully left the minor children in foster care for more than twelve months without showing any reasonable progress under the circumstances which led to theminor child's removal; and (2) failed to pay a reasonable portion of support for the minor children. After holding an adjudicatory and dispositional hearing, the trial court entered an amended order on 8 April 2002 terminating respondent's parental rights. The trial court concluded that grounds existed for terminating respondent's parental rights under N.C. Gen. Stat. § 7B-1111 (2001) in that she (1) willfully left the minor children in foster care for more than twelve months without showing any reasonable progress under the circumstances which led to the minor children's removal; (2) failed to pay a reasonable portion of support for the minor children; (3) failed to cooperate with DSS for the return of the minor children; and (4) is incapable of providing for the proper care and supervision of the children and there is a reasonable probability that such incapability will continue in the future, which may be the result of substance abuse, mental retardation, mental illness or organic brain syndrome. Respondent appeals from the order terminating her parental rights.
    Respondent contends there was not clear, cogent, and convincing evidence to support a termination of her parental rights under any of the grounds upon which the trial court based its decision. We find the evidence sufficient to support the order terminating parental rights and affirm the decision of the trial court.
    Termination of parental rights proceedings are conducted in two phases: (1) the adjudication phase, governed by N.C. Gen. Stat. § 7B-1109 (2001); and (2) the disposition phase, governed byN.C. Gen. Stat. § 7B-1110 (2001). See In re Mitchell, 148 N.C. App. 483, 487, 559 S.E.2d 237, 241, reversed on other grounds, 356 N.C. 288, 570 S.E.2d 212, dismissed, 356 N.C. 613, 574 S.E.2d 467 (2002). During the adjudication phase, the burden of proof rests on petitioner to prove by clear, cogent, and convincing evidence that one or more of the statutory grounds set forth in section 7B- 1111 for termination exists. See N.C. Gen. Stat. § 7B-1109(e)-(f) (2001). The standard of appellate review is whether the trial court's findings are supported by clear, cogent and convincing evidence and whether the findings support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
    If petitioner meets its burden of proof that grounds for termination exist, the trial court enters 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, 908 (2001). It is within the trial court's discretion to terminate parental rights upon a finding that it would be in the best interests of the child. Id. at 613, 543 S.E.2d at 910.
    N.C. Gen. Stat. § 7B-1111 provides nine separate grounds upon which an order terminating parental rights may be based. A court's finding of one of the statutory grounds for termination, if supported by competent evidence, will support an order terminating parental rights. In re Nolen, 117 N.C. App. 693, 701, 453 S.E.2d 220, 225 (1995). The trial court's decision to terminate parentalrights is reviewed on an abuse of discretion standard. In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).
    A trial court may terminate parental rights under the N.C. Gen. Stat. § 7B-1111(a)(2) upon a finding that
        [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.

Id. Willfulness under section 7B-1111(a)(2) is something less than willful abandonment. Nolen, 117 N.C. App. at 699, 453 S.E.2d at 224. “A finding of willfulness is not precluded even if the respondent has made some efforts to regain custody of the children.” Id. The trial court must also find that the parent has failed to make reasonable progress in correcting the conditions which led to the removal of the child. N.C. Gen. Stat. § 7B- 1111(a)(2). In Nolen, this Court held that sporadic efforts by the parent to improve her situation constituted willful failure to correct conditions that led to the removal. Nolen, 117 N.C. App. at 699-700, 453 S.E.2d at 224-25. In In re Oghenekevebe, 123 N.C. App. 434, 437, 473 S.E.2d 393, 397 (1996), this Court found the respondent willfully left her child in foster care where she failed to show any progress in her therapy until her parental rights were in jeopardy.
    In support of its conclusion that respondent's parental rights should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the trial court entered the following pertinent findings of fact:            8. That on or about February 9, 1999, a referral was made to Robeson County Department of Social Services alleging exposure of Jimmy and Annie Oxendine to marijuana and alcohol, the witnessing of their mother having sexual relations with their grandfather, and anal and oral sex between the grandfather and the children and sexual acting out between Jimmy and his sister.

            9. That a petition was filed on February 16, 1999 removing the children from the home and placing them in foster care.

            10. That on February 27, 1999, Sarah married Sanford Oxendine. Jimmy and Annie were adjudicated neglected and abused children on June 2, 1999 by a consent order.

            . . . .

            12. That the Court record clearly demonstrates how the Court, The Department of Social Services and the Guardian ad litem have expressed that Sarah stay away from her father and to demonstrate her ability to keep her children away from him.
            13. That on several occasions, despite her touted “efforts” to stay away from her father, Sarah [was] observed with him in public. In October 1999, there was an incident in which Sarah and Henry were seen together at the Red Springs Christmas Parade. On December 1, 1999, visitation was ceased by the Court. On December 5, 1999, Judge Locklear ruled in favor of pursuing termination of parental rights. On January 6, 2000, Henry Oxendine was caught taking photographs of Jimmy at the Robeson County Mental Health Center.

            . . . .

            15. That on October 5, 2000, a paternity test revealed Henry Oxendine to be the biological father of Jimmy Rae Oxendine.

            16. That a paternity test to positively identify Annie's biological father has not been performed.
            . . . .

            20. That Sarah Oxendine testified that she has broken ties with her father and that she began parenting classes/counseling in Columbus County approximately six months ago.

            21. That she testified that she submits that she and her husband have a home away from her father in Columbus County and that Ms. Linda Jacobs[] wishes to be a support person for Sarah.

            22. That when evaluated by Dr. Aiello and Paula Browder in 1999, Sarah denied the abuse by her father and stated that she did not believe that her children had been molested.

            23. That according to statements made by Jimmy, Sarah and Henry performed sex acts in front of the children and she was present at the time her father performed sex acts on the children.

            24. That after evaluating Jimmy on August 10, 1999, Therapist Paula Browder indicated that she was concerned about Sarah's ability to supervise and protect the children.

            25. That in April of 2000, Dr. Bullard and Juliet Price echoed the concerns of Paula Browder about Sarah's ability to protect Jimmy and his sister from their grandfather or any other potential perpetrator.

            26. That Sanford and Sarah Oxendine were married right after Annie and Jimmy were placed in DSS custody and Dr. Aiello evaluated Sanford in July of 1999. That evaluation raised several concerns.

            27. That during the evaluation and thereafter Sanford minimized and denied that Henry Oxendine was anything but a fine and upstanding individual. He was very favorable towards Sarah's family. Sanford's father was the minister of the family's church. Sanford tested as having cognitive limitations and Dr. Aiello questioned his ability to protect the children. He recommended that Sanford wouldneed to maintain explicit and consistent acknowledgment and awareness of the abuse through counseling. Based on the record, Sanford has not been involved in counseling.

            . . . .

            30. That there was also an issue raised in the record regarding Sanford inappropriately touching Annie on the buttocks and sitting her in his lap during visits in 1999. In the latter months of 2000 and early 2001, there were reports of marital strife between Sarah and Sanford and it was reported in September of 2000, that Sarah called the police after a domestic dispute between them. As long as Sanford and Sarah are married, he would be a key party involved in the lives of these [children] and in the life of their mother.

            . . . .

            42. That Jimmy has disclosed the details of his exposure to various sexual activities by his mother and grandfather. A CME by the Center for Child and Family Health in Durham on February 24, 1999, concluded, based on Jimmy's physical exam and his interview, that it was definite that he was molested.

            . . . .


            . . . .

            6. That a CME was performed on Annie which indicated that she was probably sexually abused, based [] primarily on Jimmy's disclosures and the Center for Child and Family Health also recommended that Annie be closely supervised for any indication of acting out.
    Because respondent has not excepted to any of these findings, they are presumed to be correct and supported by the evidence. In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), appeal dismissed,459 U.S. 1139, 74 L. Ed. 2d 987 (1983). Nevertheless, after a review of the record, we determine these findings are based upon orders entered in the case, the testimony of Dr. Aiello, foster care social worker Monique McKinnon, DSS social worker Marsha Dunn, adoption social worker Deborah Maynor, and respondent's social worker Paula Browder.
    Accordingly, we find the trial court's findings are supported by clear, cogent, and convincing evidence. Furthermore, we hold that these findings support the trial court's conclusion that Sarah Oxendine was subject to having her parental rights terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(2). See, e.g., Nolen, 117 N.C. App. 693, 453 S.E.2d 220; In re Oghenekevebe, 123 N.C. App. 434, 473 S.E.2d 393. Respondent fails to show, nor do we find, that the trial court abused its discretion in terminating her parental rights. See Dept. of Social Services v. Roberts, 22 N.C. App. 658, 207 S.E.2d 368 (1974).
    Because we have determined that one of the grounds set forth in N.C. Gen. Stat. § 7B-1111 supports the trial court's order, we need not address respondent's challenge to the trial court's termination on other grounds. See Allred, 122 N.C. App. at 568, 471 S.E.2d at 88. Accordingly, the trial court's order terminating respondent's parental rights is affirmed.
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).

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