Petitioner Joy Lynn Blohm, T.L.B.'s mother, and respondent
Johnson engaged in a sexual relationship between June and November
1997. Both were employed by a restaurant in Iredell County where
Blohm worked as a waitress and Johnson was a manager. Johnson was
then and still is married and the father of two children apart from
T.L.B.
In late November 1997, Blohm learned she was pregnant and told
Johnson of her pregnancy. Blohm testified that the two were
together on the day before Thanksgiving when she took a pregnancy
test and the result was positive. Johnson, however, testified that
he did not believe Blohm was pregnant, but rather thought she was
lying about her pregnancy as a ploy to persuade him to leave his
wife.
Shortly after Blohm learned she was pregnant, Johnson's
superiors at the restaurant met with him to discuss his
relationship with Blohm. After that meeting, Johnson turned in his
keys to the restaurant and left without speaking to Blohm. On 8
December 1997, Blohm went to the apartment where Johnson and his
family lived, knocked on the door, and told Johnson she wanted to
speak with him. This was the last time Blohm saw Johnson prior to
the termination of parental rights proceedings. Johnson moved out
of state, and Blohm testified she did not know where he had gone. Blohm gave birth to T.L.B. on 26 July 1998. In the spring of
2001, Blohm sought information from the Iredell County Department
of Social Services about obtaining child support from Johnson. The
department provided her with an address for Johnson's father. On
8 May 2001, Blohm sent a letter to Johnson by way of his father
asking Johnson to assist her by paying child support. Johnson
responded in a letter dated 17 May 2001. He requested a paternity
test, but stated, "If I am indeed his father I will want to do what
is right. But you also have to realize, that if I am helping
financially support him, I will want joint custody."
Without any further communications, on 18 June 2001, Blohm
filed a petition seeking to terminate Johnson's parental rights.
Johnson filed an answer on 27 July 2001 together with a motion
requesting a paternity test. The paternity test established that
Johnson is T.L.B.'s father. The Court assigned a guardian ad litem
to represent the child's interests, and a hearing was held in June
and July 2002.
On 20 August 2002, the trial court entered an order
terminating Johnson's parental rights. The court concluded first
that petitioner had met her burden of proving grounds to terminate
Johnson's rights, including (1) willful abandonment of the minor
child for at least six consecutive months immediately preceding the
filing of the petition; and (2) a failure to legitimate or
establish paternity of the child prior to the filing of the
petition. The court next found that "[t]he minor child's home with
the Petitioner is a secure, stable, and loving environment, and it
is in the child's best interest to remain in this environment." The trial court, therefore, ordered that the parental rights of
Johnson be terminated.
A termination of parental rights proceeding involves two
separate analytical phases: an adjudicatory stage and a
dispositional stage.
In re Blackburn, 142 N.C. App. 607, 610, 543
S.E.2d 906, 908 (2001). A different standard of review applies to
each step.
At the adjudicatory stage, the petitioner must prove by clear,
cogent, and convincing evidence at least one of the statutory
grounds for termination listed in N.C. Gen. Stat. § 7B-1111 (2003).
Id. This Court's task is to review the trial court's findings of
fact to determine whether they are supported by "clear, cogent, and
convincing evidence" and whether the findings support the trial
court's 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 the petitioner meets its burden of proving at least one
ground for termination, the trial court proceeds to the
dispositional phase and considers whether termination is in the
best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2003);
Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. This Court
reviews the trial court's dispositional decision for abuse of
discretion.
In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599,
602 (2002).
Because respondent did not specifically assign error to any of
the trial court's findings of fact supporting its order, thosefindings are deemed to be supported by competent evidence and are
conclusive on appeal.
Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding
of fact by the trial court, the finding is presumed to be supported
by competent evidence and is binding on appeal."). As a result,
t
he sole question properly before this Court as to the adjudicatory
phase is whether the trial court's conclusions of law are supported
by its findings of fact.
[1] Although the trial court did not refer to specific
statutory grounds, it appears that the trial court terminated
respondent's rights based on N.C. Gen. Stat. § 7B-1111(a)(5)
(failure to establish paternity, legitimate child, or provide
support or care) and § 7B-1111(a)(7) (willful abandonment).
On
appeal, if this Court determines that there is at least one ground
to support a conclusion that parental rights should be terminated,
it is unnecessary to address the remaining grounds.
In re Clark,
159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003).
Under N.C. Gen. Stat. § 7B-1111(a)(5), the court may terminate
parental rights upon a finding that
:
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.
The trial court's findings establish _ and respondent does not
dispute _ that respondent failed to take any of these steps prior
to the filing of the petition. In addition to the lack of any
effort to establish paternity through judicial process, affidavit,
or marriage, respondent paid no child support and gave no care to
the child and Blohm. "Upon a finding that the putative father has
not attempted any of the four possible ways to legitimate his
child, the trial court may terminate parental rights."
In re Hunt,
127 N.C. App. 370, 373, 489 S.E.2d 428, 430 (1997).
Respondent claims, however,
that he was unable to take the
steps set out in N.C. Gen. Stat. § 7B-1111(a)(5) because he did not
know of T.L.B.'s existence prior to receiving the letter of 8 May
2001. This argument has already been rejected by this Court in
In
re Clark, 95 N.C. App. 1, 381 S.E.2d 835 (1989),
rev'd on other
grounds, 327 N.C. 61, 393 S.E.2d 791 (1990)
. This Court in
Clark
construed N.C. Gen. Stat. § 7A-289.32(6), the identically worded
predecessor statute to § 7B-1111(a)(5), and N.C. Gen. Stat. § 48-
6(a)(3), an adoption statute also identically worded. The Court
held: "Section 48-6(a)(3) reflects the same legislative choices
evident in the termination of a putative father's rights under
Section 7A-289.32(6): under neither statute is the illegitimate
child's future welfare dependent on whether or not the putativefather knows of the child's existence at the time the petition is
filed."
Clark, 95 N.C. App. at 8, 381 S.E.2d at 839. The Court
reasoned that "[w]hile the Legislature could have reasonably set
the bar date at another point in time, it is certainly not
unreasonable to charge putative fathers with the responsibility to
discover the birth of their illegitimate children."
Id. at 9, 381
S.E.2d at 840.
We point out that the putative father in
Clark was never
informed that the mother was pregnant and did not learn that she
had given birth until after an adoption order had been entered. By
contrast, respondent in this case had been informed three and a
half years before the petition was filed that Blohm was pregnant
and that she claimed he was the father. Until Blohm contacted him
about child support, respondent expressed no interest in
discovering whether Blohm had given birth, in determining whether
the child was his, or in taking responsibility for the child.
See
In re Baby Boy Dixon, 112 N.C. App. 248, 251, 435 S.E.2d 352, 354
(1993) ("In this case, the father, having the responsibility to
'discover the birth of [his] . . . illegitimate [child],' failed,
although he had ample opportunity to do so, to take any of the
statutory steps to demonstrate his commitment to the child."
(quoting
Clark, 95 N.C. App. at 9, 381 S.E.2d at 840)
).
Since the trial court's findings support its conclusion that
grounds existed for termination of respondent's parental rights
under N.C. Gen. Stat. § 7B-1111(a)(5),
we need not address the
trial court's conclusion regarding N.C. Gen. Stat. § 7B-1111(a)(7)
.
We accordingly affirm the trial court's decision in the
adjudicatory phase.
[2] Respondent next contends that the trial court abused its
discretion at the dispositional phase in determining it was in the
best interests of the child to terminate respondent's parental
rights.
The termination of parental rights statute provides:
Should the court determine that any one
or more of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the juvenile unless the court
shall further determine that the best
interests of the juvenile require that the
parental rights of the parent not be
terminated.
N.C. Gen. Stat. § 7B-1110(a). Although the statute is couched in
mandatory language,
our appellate courts have construed the
language of the statute to vest discretion in the trial court to
decide to terminate parental rights when in the best interests of
the child.
Blackburn,
142 N.C. App. at 613, 543 S.E.2d at 910. In
making this decision, "[e]vidence heard or introduced throughout
the adjudicatory stage, as well as any additional evidence, may be
considered by the court during the dispositional stage."
Id.
In arguing that the trial court abused its discretion in
terminating his parental rights,
respondent relies exclusively on
Bost v. Van Nortwick, 117 N.C. App. 1, 8, 449 S.E.2d 911, 915
(1994),
appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995), in
which then Judge Orr concluded, based on a review of the evidence,
that the trial court abused its discretion in terminating the
father's parental rights.
In particular, respondent relies on the
portion of the opinion stating that a finding that one parent couldprovide "a more stable environment and better financial situation"
than another does not support termination of the latter parent's
rights in the absence of any other findings.
Id. at 8-9, 449
S.E.2d at 915
. We first note that it is not clear that a majority
of the Court agreed with this portion of the
Bost decision. Judge
Wynn wrote a separate concurring opinion based only on the trial
court's error in concluding that the plaintiff had established the
existence of grounds for termination. He did not reach the
question whether the reasons given by the trial court at the
dispositional phase were sufficient. The third member of the
panel, Judge Johnson, dissented. In addition, since Judge Orr and
Judge Wynn both agreed that the evidence failed to establish
grounds for termination in the first instance, the discussion
relied upon by respondent in this case is
dicta.
Nevertheless,
Bost was based on a review of the entire
evidence, with the opinion concluding that the evidence
demonstrated that the trial court had abused its discretion. Here,
the trial court stated that it had "heard no evidence which would
determine that termination would not be in the child's best
interests." In addition, the court found that neither the
petitioner nor the child had ever heard from respondent until
petitioner sent a letter requesting child support at which point
respondent requested a paternity test. The trial court further
found that "prior to the filing of the petition, the Respondent had
never seen the child, had never paid any child support, and had not
taken steps to legitimate the child. To this day, he has never
paid any child support nor has he even seen the child." Our reviewof the record reveals that these findings are supported by the
evidence. In light of these findings, we cannot conclude that the
trial court abused its discretion in terminating respondent's
parental rights.
Affirmed.
Judges McGEE and BRYANT concur.
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