An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-167


Filed: 7 October 2003

                                        Rowan County
ANDREA NMN HOLMAN                            No. 00 J 315
DOB: 03/25/1992

    Appeal by respondent James Leon Andrade, Jr. from an order entered 8 October 2002 by Judge Beth Dixon in Rowan County District Court. Heard in the Court of Appeals 20 August 2003.

    David Wilson and Robert A. Lester for petitioner-appellee Rowan County Department of Social Services.

    Attorney Advocate Nancy Gaines, Guardian Ad Litem.

    Susan J. Hall for respondent-appellant James Leon Andrade, Jr.

    HUNTER, Judge.

    James Leon Andrade, Jr. (“respondent”) appeals from an order terminating his parental rights to his alleged daughter, Andrea Holman (“Andrea”). For the reasons stated herein, we affirm.
    Andrea was born out of wedlock on 25 March 1992 to Juanita Holman (“Holman”) in Monmouth County, New Jersey. Respondent is the child's alleged father; however, it is disputed as to whether paternity was ever legally established. Nevertheless, at some point, Andrea began residing with respondent's mother, Inita Andrade (“Andrade”), in Woodleaf, North Carolina.
    On 24 November 2000, temporary legal and physical custody of the child was placed with the Rowan County Department of Social Services (“DSS”) based upon a reasonable belief that Andrade wasphysically abusing Andrea. A juvenile petition was subsequently filed only on Andrade that listed instances of abuse and neglect Andrea had suffered at the hands of her “Paternal Grandmother” and recommended that the child remain in the nonsecure custody of DSS. On 18 December 2000, Andrade signed a Memorandum of Consent Order granting DSS legal and physical custody of Andrea.
    At a Review/Permanency Planning Hearing on 12 March 2001, neither of Andrea's parents were present because DSS had been unable to locate them and neither parent had contacted DSS. Thus, the court ordered the child's placement remain with DSS while DSS continued making reasonable efforts to (1) prevent or eliminate the need for continued placement, and (2) locate Andrea's parents.
    Another Review/Permanency Planning Hearing was held on 24 September 2001. The DSS was still unable to locate Holman, but respondent made his first appearance at that hearing while incarcerated under a $10,000.00 bond. Respondent reported that he lived with Andrade and that she would help him raise Andrea. However, due to respondent's incarceration and Andrade's unwillingness and inability to care for Andrea, the court determined that respondent was not a viable placement or visitation resource for Andrea. DSS was advised to initiate a proceeding to terminate the parental rights of the parents. A petition to terminate parental rights was filed on 30 January 2002.
    The Termination of Parental Rights Hearing was held on 29 July 2002. The only witness called to testify was a social worker, Michael Kendall (“Kendall”). Kendall testified that he was awarethat a paternity test had been completed on or about 7 January 1999 that showed a 99.94% probability that respondent was Andrea's father, but he did not know whether paternity had been adjudicated. Additional evidence revealed: (1) respondent had not paid any child support; (2) respondent was on probation at the time of the hearing because he had been convicted of a drug offense; (3) approximately one and a half months before the hearing, Andrea saw respondent at a VA substance abuse center and became very upset; and (4) respondent did not send the child anything for her birthday or Christmas and did not call her on either occasion. The court ultimately determined that it was in the child's best interests to terminate respondent's parental rights. Respondent appeals.
    At the onset, DSS asserts in its brief that respondent's appeal is untimely and should be dismissed. N.C. Gen. Stat. § 7B- 1113 (2001) provides, inter alia, that any party “may appeal from an adjudication or any order of disposition to the Court of Appeals, provided that notice of appeal is given in writing within 10 days after entry of the order.” The trial court entered the order terminating respondent's parental rights on 8 October 2002, from which order respondent did not file a Notice of Appeal until 6 November 2002 -- approximately thirty days later. Respondent argues he was never served with a copy of the termination order, which is evidenced by there being no certificate of service on file accompanying the order. Our statutes require service of such an order and that proof of service be made upon each party. Id.; N.C. Gen. Stat. § 1A-1, Rules 5 and 58 (2001). The apparentfailure of DSS to serve respondent with the order tolled the time for which he had to file his Notice of Appeal thereby resulting in his appeal being timely.


    By respondent's first assignment of error he argues the trial court did not have subject matter jurisdiction over this action because DSS failed to comply with the exact wording of a statement contained in N.C. Gen. Stat. § 7B-1104(7) (2001). DSS' petition alleged that it was not “filed to circumvent the provisions of Chapter 50A, the Uniform Child Custody Jurisdiction Act.” Section 7B-1104(7) provides that such a petition shall state that it was not “filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act.” N.C. Gen. Stat. § 7B-1104(7) (emphasis added). Nevertheless, this Court has previously determined that there is “no authority that compell[s] dismissal of [an] action solely because petitioner failed to include this statement of fact in the petition.” In re Humphrey, ___ N.C. App. ___, ___, 577 S.E.2d 421, 426 (2003). Here, the statement did appear in DSS' petition, albeit, incorrectly. While it is clearly the better practice to include the factual statement as stated in the statute, DSS' failure to use the exact wording of the statement is insufficient to establish that the petition was filed to circumvent the Uniform Child-Custody Jurisdiction and Enforcement Act. Moreover, respondent has failed to demonstrate that he was prejudiced as aresult of DSS' error. Id. Therefore, this assignment of error is overruled.

    By his second assignment of error, respondent argues the trial court did not have subject matter jurisdiction over the action because DSS failed to file a child status affidavit pursuant to N.C. Gen. Stat. § 50A-209. Yet, while the trial court may stay a proceeding until the required information is disclosed, the Official Comment to this statutory section states that “failure to provide the information does not deprive the court of jurisdiction to hear the case.” N.C. Gen. Stat. § 50A-209 official commentary (2001). Thus, this assignment of error is also overruled.

    Next, respondent argues the trial court abused its discretion in concluding as a matter of law that four separate grounds existed by which to terminate his parental rights. Specifically, the court concluded “[t]hat pursuant to G.S. 7B-1111 sufficient grounds exist[ed] to terminate the parental rights of the alleged father, [respondent], namely G.S. 7B-1111(2)(3)(5)(7).” These statutory sub-sections provide that the court may terminate parental rights upon a finding that:
        (2)    The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the juvenile. . . .
        (3)    The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.

        . . . .

        (5)    The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights:

         a.     Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or

             b.     Legitimated the juvenile pursuant to provisions of G.S. 49-10 or filed a petition for this specific purpose; or

             c.    Legitimated the juvenile by marriage to the mother of the juvenile; or

            d.    Provided substantial financial support or consistent care with respect to the juvenile and mother.

         . . . .
        (7)    The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B-500 for at least 60consecutive days immediately preceding the filing of the petition or motion.
N.C. Gen. Stat. § 7B-1111 (2001). Respondent sets forth each ground respectively as his fourth, sixth, fifth, and seventh assignments of error. 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). Thus, despite the presence of clear, cogent, and convincing evidence to support termination based on more than one, if not all, of these statutory grounds, “we need not address the respondent's assignments of error challenging the sufficiency of the evidence to terminate, based on [each] statutory ground[].” Id.
    As previously stated, a court may terminate parental rights upon a finding that the “parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition . . . .” N.C. Gen. Stat. § 7B-1111(7). “Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child.” In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). “The word 'willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation.” Id. A finding of whether a parent has willfully abandoned his child is a question of fact to be determined from the evidence. Id. at 276, 346 S.E.2d at 514.    In the instant case, since the petition for terminating respondent's parental rights was filed on 30 January 2002, respondent's behavior between 30 July 2001 and 30 January 2002 is determinative. During the first two months of this period, DSS made several unsuccessful attempts to locate respondent by mail, telephone calls, and home visits. Respondent's mother was also unable to meaningfully assist DSS in the location of her son. Respondent was not located until after he was taken into police custody for an outstanding warrant for his arrest, which was approximately ten months after the child was placed in DSS custody. After his arrest and subsequent appearance in court, respondent made a few attempts to learn of Andrea's welfare and condition, but never requested contact or visitation with the child. Respondent did not actually attempt to speak with or see Andrea until after the petition for termination was filed. Thus, there was sufficient clear, cogent, and convincing evidence to support the court's finding of willful abandonment pursuant to N.C. Gen. Stat. § 7B- 1111(7).

    In his final assignment of error, respondent argues that the trial court abused its discretion in concluding it was in Andrea's best interests to terminate his parental rights. We disagree.
    “Once the court has determined that grounds for terminating parental rights are present, the court then 'moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights.'” In re Leftwich,135 N.C. App. 67, 71, 518 S.E.2d 799, 802 (1999) (quoting In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 615 (1997)). Upon finding adequate grounds for termination of parental rights, either party may offer relevant evidence as to the child's best interests. If the trial court decides to terminate parental rights, that decision is reviewed on an abuse of discretion standard. See In re Brim, 139 N.C. App. 733, 535 S.E.2d 367 (2000).
    Here, the trial court found several grounds existed for terminating respondent's parental rights. While it appears respondent was not initially aware of Andrea's placement in DSS' custody, upon learning of such placement, the trial court found that he made no effort to improve her condition, provide filial affection and support, or initiate any steps that would lead to Andrea's removal from foster care. The court also found that (1) Andrea had been in foster care continuously for approximately twenty months, (2) she needed a permanent plan of care as soon as possible due to her young age, and (3) Andrea's current foster parents were a prospective adoptive placement. Therefore, the court did not abuse its discretion in concluding termination of respondent's parental rights was in Andrea's best interests.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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