IN THE MATTER OF:
JIMMY RAE OXENDINE Robeson County
DOB: 1 JUN 94 No. 00 J 29
ANNIE MAE OXENDINE
DOB: 16 MAY 97
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.
Affirmed.
Judges MARTIN and CALABRIA concur.
Report per Rule 30(e).
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