IN THE MATTER OF: Chatham County
LUIS DAVID ASCENCIO No. 01 J 127
Lunday A. Riggsbee for petitioner-appellee Chatham County
Department of Social Services.
Karen Davidson for guardian ad litem.
Peter Wood for respondent-appellant.
McGEE, Judge.
Respondent is the father of Luis David Ascencio (Luis), who
was born on 28 July 1998. Luis was placed in the custody of the
Chatham County Department of Social Services (DSS) on 29 March 2001
after his mother relinquished him for adoption. Respondent pled
guilty on 17 September 2001 to charges of attempted first degree
sexual offense and indecent liberties with a child, his son Luis.
Petitioner was sentenced to a term of 94 to 122 months'
imprisonment.
A petition to terminate respondent's parental rights was filed
by DSS on 9 November 2001, alleging that respondent had abused and
neglected Luis. The petition specifically alleged that respondenthad: (1) sexually and physically abused Luis; (2) been abusive to
Luis' mother; (3) abused alcohol and drugs; and (4) abandoned Luis.
DSS alleged that it was in the child's best interest that
respondent's parental rights be terminated.
A hearing was held on 24 October 2002 on the petition to
terminate respondent's parental rights. During the hearing,
respondent sought to introduce the testimony of his sister, Lydia
Chica, regarding placement of Luis in Ms. Chica's home. However,
the trial court refused to allow Ms. Chica to testify "unless [she
was] going to testify about the relationship between this father
and this son." Respondent made a proffer of what Ms. Chica's
testimony would be. Defendant's counsel stated that Ms. Chica
would testify that, if Luis were placed in her home, she would not
let him see respondent and that he would be in a stable and loving
home.
The trial court found that grounds existed for the termination
of respondent's parental rights. Specifically, the trial court
found that respondent had: (1) sexually abused Luis; (2) been
convicted of attempted first degree sexual offense and indecent
liberties with a child; (3) physically abused Luis; (4) physically
abused Luis' mother; (5) abused drugs and alcohol; (6) placed
cocaine on Luis' mouth; (7) tried to get Luis' mother to use drugs;
(8) informed a social worker after Luis' mother relinquished Luis
for adoption, that he did not want any information about the child,
and that Luis needed a good home; and (9) abandoned Luis. The
trial court determined that it was in the best interests of Luisthat respondent's parental rights be terminated. Respondent
appeals.
Respondent first argues that the trial court erred by refusing
to allow him to present his sister's testimony during the best
interests phase of the hearing on the petition to terminate his
parental rights. Respondent contends that he "should also have the
right to 'paint a picture' of what is in his child's best
interest."
After careful review of the record, briefs and contentions of
the parties, we affirm the trial court's termination of
respondent's parental rights. A termination of parental rights
proceeding is conducted in two phases: (1) the adjudication phase
set forth in N.C. Gen. Stat. § 7B-1109 and (2) the disposition
phase set forth in N.C. Gen. Stat. § 7B-1110. See In re Brim, 139
N.C. App. 733, 738, 535 S.E.2d 367, 370 (2000). During the
adjudication stage, petitioner has the burden of proof by clear,
cogent, and convincing evidence that one or more of the statutory
grounds set forth in N.C. Gen. Stat. § 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 of fact
are supported by clear, cogent, and convincing evidence and whether
the findings of fact support the conclusions of law. In re Huff,
140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), 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 then moves to the dispositionphase and must consider whether termination is in the best
interests of the child. See N.C.G.S. § 7B-1110(a) (2001). During
the disposition phase:
Either party may offer relevant evidence as to
the child's best interests. Such evidence may
therefore include facts or circumstances
demonstrating either: (1) the reasonable
progress of the parent, or (2) the parent's
lack of reasonable progress that occurred
before or after the twelve-month period
leading up to the filing of the petition for
termination of parental rights.
In Re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86-87 (2002)(citing
In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910
(2001)). In this case, the evidence proffered by respondent was
not relevant to the issue of whether it was in the juvenile's best
interests that respondent's parental rights be terminated.
Instead, respondent sought to introduce evidence that his sister be
considered as placement for Luis. This assignment of error is
overruled.
Respondent next argues that the trial court erred by basing
its decision to terminate respondent's parental rights on facts not
in evidence. At the conclusion of the evidence, the trial court
stated that it had "sent out [its] distress call" and put the court
"at ease" until an answer was received. After a break, the trial
court ruled that respondent's parental rights should be terminated.
The court then stated that:
I will tell all of you, of course, that I
went and consulted with someone that I
consider to be very reliable in case stuff
like this to help me out.
Respondent contends that the trial court called its own witness andbased its decision on this witness. Respondent argues that he was
not afforded a meaningful opportunity to cross-examine this witness
or to respond to the witness's comments. Respondent asserts that
his rights to procedural due process were therefore violated.
"The presumption is in favor of the correctness of the
proceedings in the trial court, and the burden is on the appellant
to show error." In re Moore, 306 N.C. 394, 403, 293 S.E.2d 127,
132 (1982) (citing London v. London, 271 N.C. 568, 157 S.E.2d 90
(1967)); Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967)).
The record in this case does not show to whom the trial court was
referring, or what the subject of the communication was. However,
there is nothing in the record to support respondent's contention
that the court called a witness outside the record in search of
evidence relevant to the termination of respondent's parental
rights. Instead, it appears that the court was seeking
clarification of a procedural issue, i.e., whether respondent was
entitled to present evidence regarding future placement of the
juvenile during the best interests phase of the hearing. This was
a legal issue not subject to cross-examination by respondent.
Respondent has failed to meet his burden of showing error in the
hearing. The order terminating respondent's parental rights is
affirmed.
Affirmed.
Judges HUDSON and GEER concur.
Report per Rule 30(e).
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