An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-206

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2004

IN THE MATTER OF:

KARINA MARIN CANSECO,            Forsyth County
A MINOR CHILD.                    No. 00 J 360

    Appeal by respondents from order entered 27 March 2002 by Judge Laurie Hutchins in the District Court in Forsyth County. Heard in the Court of Appeals 8 October 2003.

    M. Victoria Jayne, for respondent mother.

    Hall& Hall, by Susan P. Hall, for respondent father.

    Assistant County Attorney Theresa A. Boucher, for petitioner Forsyth County Department of Social Services.

    Womble, Carlyle, Sandridge & Rice, by Douglas R. Vreeland, for Guardian Ad Litem.


    HUDSON, Judge.

Background
    On 17 February 1999, respondent parents Maribel Marin Canseco and Ranulfo Canseco brought their then eleven-month-old daughter Karina to the Forsyth Memorial Hospital Emergency Room. Through an interpreter, respondent parents told hospital personnel that Karina had hurt her leg in a fall. Examination and x-rays revealed that Karina had fractures of the right elbow, the right metatarsal and left knee, as well as an old fracture of the right tibia and a possible rib fracture. Karina was suffering from mouth ulcers as a result of herpes simplex one, and had not received any medical attention or appropriate immunizations. She also tested positivefor opiates and had serious lesions under her chin and on her neck. Respondent parent offered no explanation for Karina's injuries except the suggestion that she may have been injured playing with her siblings or while pulling up on the couch.
    On 18 February 1999, the Forsyth County Department of Social Services (“DSS”) filed Juvenile Petitions alleging that Karin Marin Canseco was an abused juvenile, and that her brother and sister, then ages two and three years, were neglected juveniles, as defined by N.C. Gen. Stat. § 7A-517(1), (21). Forsyth DSS took custody of all three children. On 15 April 1999, the court adjudicated Karina a neglected and abused juvenile, and adjudicated her siblings neglected. The children remained in foster care under DSS custody following a dispositional hearing on 12 May 1999 and a review hearing on 9 June 1999.
    On 23 June 1999, the court found respondent parents had made sufficient progress to regain physical custody of Karina's siblings, though DSS retained legal custody. The court made no findings regarding Karina and she remained in DSS custody. Respondent parents were granted weekly overnight unsupervised visits with Karina. Respondent parents regained legal custody of the two older children on 15 December 1999, but the court determined that remaining in foster care was in Karina's best interest. However, the court increased the frequency and decreased the level of supervision of visitation between Karina and respondent parents.     On 21 February 2000, respondent parents pled guilty to felony child abuse based on Karina's injuries and condition at the time of her original removal by DSS, with an underlying offense date of 1 December 1998. The court suspended respondent parents' sentences and placed them on sixty months supervised probation. Each also received an active six month sentence as a term of special probation, to be served on a staggered schedule. The court ordered respondent father to serve his term first and recommended work release. Respondent father's sentence was modified to unsupervised probation to permit deportation proceedings. The staggered sentences were intended to allow one parent to care for Karina's siblings and to continue to work towards reunification with Karina.
    On 22 September 2000, the court held a permanency planning hearing, concluding that Karina would not be able to return to respondent parents within the next six months and changing her permanent plan to adoption. A petition to terminate respondents' parental rights was filed that day. On 28 September 2000, respondent mother's suspended sentence of 31 to 47 months was activated following a probation violation. Respondent father was deported to Mexico on or about 30 September 2000. Currently, Karina's siblings live with respondent father in Mexico. On 9 August 2000, respondent mother's sentence was activated upon revocation of probation.
    The hearing to terminate parental rights took place more one year later, on 22 October 2001. On 27 March 2002, the juvenile court found grounds to terminate respondents' parental rightspursuant to N.C. Gen. Stat. § 7B-1111 and found that termination would be in Karina's best interest. Respondents' parental rights were terminated, and respondent parents appeal. For the reasons discussed below, we reverse the termination of respondent father's parental rights and affirm the termination of respondent mother's parental rights.
Analysis
    A proceeding for termination of parental rights involves two stages: first, petitioner proves by clear, cogent and convincing evidence that any one of the statutory grounds warranting termination exists, and then, the court determines whether termination is in the child's best interest. In re Pierce, 146 N.C. App. 641, 645, 554 S.E.2d 25, 27 (2001), affirmed, 356 N.C. 68, 565 S.E.2d 81 (2002). On review, we must determine whether the trial court's findings of fact were based on clear, cogent and convincing evidence, and whether those findings of fact supported a conclusion that parental termination should occur on the grounds stated in this section. In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996). If a conclusion that grounds exist under any subdivision of this section is supported by findings of fact based on clear, cogent, and convincing evidence, the order terminating parental rights must be affirmed. In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 35 (1985).
    Here, however, the juvenile court did not specify the grounds for termination, concluding only that:
        1. Grounds exist pursuant to N.C.G.S. 7B-111 to terminate the parental rights of MaribelMarin Canseco to the child, Karina Marin Canseco.
        2. Grounds exist pursuant to N.C.G.S. 7B-111 to terminate the parental rights of Ranulfo Canseco to the child, Karina Marin Canseco.

The petitioner listed four grounds for termination in its petition of 22 September 2000: 1) respondent parents abused or neglected Karina, 2) respondent parents willfully left Karina in foster care 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) respondent parents willfully failed for such period to pay a reasonable portion of the cost of care for Karina although physically and financially able to do so, and 4) respondent parents committed a felony assault that resulted in serious bodily injury to Karina. Because the juvenile court failed to specify which of these grounds it relied upon in terminating respondents' parental rights, we must determine whether the findings of fact support any of these four grounds, and whether, in turn, those findings are supported by clear, cogent and convincing evidence.
    The court made the following findings of fact pertinent to the four grounds for termination mentioned in the petition:
    4. On April 15, 1999, Ranulfo Marin and Maribel Marin Canseco have been adjudicated responsible for the abuse and neglect of Karina Marin Canseco; each has denied actual abuse of the minor child.
    
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    14. Beginning in April 1999, Mr. Marin and Mrs. Marin Canseco worked with the Forsyth County Department of Social Services and other community agencies for the return of Karina. Mr. Marin and Mrs. Marin Cansecoattended Hispanic-parenting classes through SCAN and ABCD, and a family evaluation and therapy with David Pardo; they had supervised visits with Karina.

    15. Beginning in December 1999, after demonstrating progress to the Court, Mr. Marin and Mrs. Marin Canseco were awarded unsupervised visitation with Karina; the older two Marin children Kimberly and Jason were returned to the custody of the parents in December 1999.

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    17. On February 21, 2000, Maribel Marin Canseco and Ranulfo Marin pled guilty to the felony child abuse of Karina Marin Canseco which occurred prior to February 17, 1999. At the criminal court proceedings, the Forsyth County DSS testified on behalf of the parents and indicated that reunification efforts were ongoing and the plan of the FCDSS was to gradually reintegrate Karina into her family. . . . [description of suspended sentences and staggered active prison sentences]
    
    18. In April 2000, the Forsyth County DSS learned that the Immigration and Naturalizations [sic] Service (INS) had contacted Mr. Marin and that he would be deported to his native country of Mexico at the conclusion of his active sentence. Mr. Ranulfo Marin was deported in October 2000.
    
    19. While incarcerated Ranulfo Marin had limited visitation with Karina. Based upon his incarceration and his placement in DOC outside of Forsyth County, Ranulfo Marin was unable to participate in counseling with David Pardo or work with the BABIES worker assigned to Karina Marin Canseco. Ranulfo Marin was not afforded the privilege of work release and therefore was unable to pay any child support for the care and maintenance of Karina.
    
    21. Maribel Marin Canseco failed to re-attend ABCD parenting classes as ordered by the Juvenile and Superior courts. She failed to fully participate in counseling with David Pardo and she failed to fully participate with the BABIES worker assigned to Karina Marin Canseco. Beginning in April 2000, Ms. Maribel Marin Canseco began missing unsupervised visits with Karina Marin Canseco as arranged by the Forsyth County DSS. Although she began employment, Ms. Maribel Marin Canseco failed to pay any child support for the care and maintenance of Karina Marin Canseco.

    22. Maribel Marin Canseco was arrested for probation violation in July 2000 and her full criminal courtsentence was activated. Ms. Maribel Marin Canseco began serving a 33 month sentence on August 9, 2000.

Respondent Father
    A plain reading of these findings reveals no basis for termination of respondent father's parental rights on the ground of willfully failing to pay a reasonable portion of the cost of Karina's care. In finding 19, the only finding referring to respondent father's financial support of Karina, the court specifically notes that respondent father was “unable to pay any child support for the care and maintenance of Karina” after being denied work release while in prison. “A finding that a parent has ability to pay support is essential to termination for nonsupport on this ground.” In re Ballard, 311 N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984). Lacking such a finding, an order to terminate parental rights will not be upheld. In re McDonald, 72 N.C. App. 234, 244, 324 S.E.2d 847, 853 (1984), disc. review denied, 314 N.C. 115, 332 S.E.2d 490 (1985). Here, the court made no finding that respondent father was able to pay support for Karina and thus his parental rights cannot be terminated on that basis.
    The findings also fail to support the termination of respondent father's parental rights on the ground he willfully left Karina in foster care for more than twelve months without showing reasonable progress toward correcting the problems that led to Karina's removal from the home. Finding 14 states that respondent father worked toward Karina's return with DSS and other agencies, and that he attended parenting classes and evaluation and therapyas required. In finding 15, the court found that respondent father had made sufficient progress by December 1999 to regain custody of his two older children and to gain unsupervised visitation with Karina. Respondent father began serving his prison sentence in April 2000. The court made no findings about any failure of respondent father to continue his previous work and progress toward reuniting with Karina. Rather, finding 19 indicates that because he was incarcerated outside of Forsyth County, respondent father “was unable to participate in counseling . . . or work with the BABIES worker assigned to Karina Marin Canseco.” Finding 19 does state that he had limited visitation with Karina while incarcerated and prior to his deportation. According to findings 18 and 26, respondent father was deported to Mexico in October 2000, and is “unable to reenter the United States upon threat of lengthy incarceration.”
    These findings reveal that, up until his incarceration and deportation, respondent father was making progress toward correcting the problems which led to Karina's removal. “[A] respondent's incarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care.” In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987). The court found that his incarceration outside of Forsyth County prevented respondent father from participating in social service programs after incarceration and that, while serving his sentence, respondent father managed to have “limited visitation with Karina.” These findings do not support a conclusion thatrespondent father willfully abandoned Karina without making reasonable progress toward reunification. See In re Fletcher, 148 N.C. App. 228, 237, 558 S.E.2d 498, 503 (2002) (holding that evidence did not clearly and convincingly show father willfully left his child in foster care where he attended visits with the child, completed psychological evaluations and treatment, completed parenting classes and maintained contact with the Department of Social Services). Rather, the findings here tend to show respondent father making reasonable progress until his incarceration and deportation effectively made his further efforts with DSS programs and regular visitation impossible.
    Another ground alleged in the petition for termination is that respondent father abused and neglected Karina. The statute defines this ground as
        (1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.

N.C. Gen. Stat. § 7B-1111 (1999). The adjudication of Karina as an abused and neglected juvenile and respondent father's conviction for felony child abuse of Karina both stem from events occurring prior to 17 February 1999. The order terminating respondent father's parental rights was entered 27 March 2002, more than three years after the incidents of abuse and neglect took place. “[E]vidence [concerning] respondent's actions after the petition was filed [is] clearly relevant to determine the existence of thefactors justifying termination.” In re Bishop, 92 N.C. App. 662, 671, 375 S.E.2d 676, 682 (1989).
    When “a child has not been in the custody of the parent for a significant period of time prior to the termination hearing,” the court need not find neglect ongoing at the time of the hearing. Pierce, 146 N.C. App. at 651, 554 S.E.2d at 31. A finding of neglect would be impossible under such a standard. Id. Instead, “a prior adjudication of neglect may be admitted and considered by the trial court in ruling upon a later petition to terminate parental rights on the ground of neglect.” Ballard, 311 N.C. at 713-14, 319 S.E.2d at 231. “However, the sufficiency of such a prior adjudication of neglect standing alone to support a termination of parental rights will be unlikely when the parents have been deprived of custody for any significant period before the termination proceeding.” Id. The juvenile court must also consider any evidence of changed conditions and the probability of a repetition of neglect, as well as visitation by the parent. Pierce, 146 N.C. App. at 651, 554 S.E.2d at 31. “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.” Ballard, 311 N.C. at 715, 319 S.E.2d at 232 (emphasis in original, internal citation omitted).
    Here, the court's findings indicate that in the more than three years since the abuse and neglect of Karina occurred, respondent father successfully attended parenting classes and underwent an evaluation and therapy with a counselor. He had madesufficient progress following these programs to regain custody of his other children and to be granted unsupervised visitation with Karina. Even while incarcerated outside of Forsyth County, he managed limited visitation with Karina. Following his deportation, he was reunited with his older children in Mexico. None of the findings support a conclusion that respondent father was likely to neglect or abuse Karina in the future or that he was unfit to care for her at the time of the termination proceedings.
    The final possible ground for termination alleged in the petition is that respondent father committed a felony assault that resulted in serious bodily injury to Karina. This statutory ground for termination states
        (8) The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; or has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home.

N.C. Gen. Stat. § 7B-1111 (1999). Finding 17 states that respondent father pled guilty to felony child abuse of Karina on 21 February 2000. Despite their guilty pleas to child abuse, the court here did not find that respondent father actually committed any assault on the child. In addition, finding 17 also states that Forsyth County DSS testified on the respondent's behalf at the criminal proceeding, indicating that reunification efforts were ongoing and that the agency planned to reintegrate Karina into herfamily. Further, the active prison sentences of respondent parents were staggered specifically “[a]s a concession to the reunification plan.” Because “[t]he determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding,” the events following the respondent's conviction must be considered. Ballard, 311 N.C. at 715, 319 S.E.2d at 232 (emphasis in original, internal citation omitted).
    As discussed above, up until the conviction, respondent father had been making progress working with DSS, attending classes and therapy and had been awarded unsupervised visits with Karina. After the felony assault conviction, the findings indicate that respondent father was unable to continue working with DSS because he was incarcerated outside of Forsyth County, was unable to pay for Karina's care because he was denied work release, but did have limited visitation with Karina until he was deported. None of the court's findings support a conclusion that the felony child abuse on Karina which occurred sometime before 17 February 1999 and for which respondent father pled guilty in February 2000 continued to affect respondent father's fitness or ability as a parent at the time of the termination proceedings between 29 October 2001 and 27 March 2002.
    As of 21 February 2000, the court, Forsyth County DSS and the respondents all were working towards the goal of reunifying Karina with her family. The court found no facts indicating action or inaction by respondent father since that date that would supporttermination of his parental rights. Thus, we conclude that the findings cannot support the conclusion that petitioner has proved one or more statutory grounds for termination of the parental rights of respondent father. We note, however, that our decision regarding respondent father does not preclude DSS from continuing efforts to terminate his parental rights, if statutory grounds can be proven.

Respondent Mother
    According to findings 14 and 15, through at least December 1999, respondent mother was making progress toward correcting the problems which led to Karina's removal. After respondent's 21 February 2000 convictions for felony child abuse, however, the court's findings with regard to respondent mother differ significantly from those regarding respondent father. Finding 21 states that
        21. Maribel Marin Canseco failed to re-attend ABCD parenting classes as ordered by the Juvenile and Superior courts. She failed to fully participate in counseling with David Pardo and she failed to fully participate with the BABIES worker assigned to Karina Marin Canseco. Beginning in April 2000, Ms. Maribel Marin Canseco began missing unsupervised visits with Karina Marin Canseco as arranged by the Forsyth County DSS. Although she began employment, Ms. Maribel Marin Canseco failed to pay any child support for the care and maintenance of Karina Marin Canseco.

This finding supports termination of respondent mother's parental rights on the ground that she willfully left Karina in foster care for more than twelve months without making progress toward correcting the problems that led to Karina's removal. See In reBecker, 111 N.C. App. 85, 431 S.E.2d 820 (1993) (holding that evidence was sufficient to terminate parental rights, where mother did not attend any counseling sessions, had three criminal convictions, failed to attend some of the scheduled visits with the children, and willfully paid no child support); In re Burney, 57 N.C. App. 203, 205-6, 291 S.E.2d 177, 179 (1982) (upholding termination where respondent “willfully left his children in foster care for more than two years, failed to respond positively to efforts by DSS to strengthen the parent-child relationship and to make and follow through with constructive planning for the children's future, and failed to provide any support for the children while they were in the custody of DSS.)
    Because the findings support the court's conclusion that grounds existed to terminate respondent mother's parental rights, and because clear, cogent and convincing evidence, in turn, supports those findings, the termination order must be affirmed as to the respondent mother. Swisher, 74 N.C. App. at 240, 328 S.E.2d at 35. Because “[a] finding of any one of the seven separately enumerated grounds is sufficient to support a termination,” we need not address the other possible grounds for termination alleged in the petition. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984).
Conclusion
    For the reasons discussed above, we reverse the termination of respondent father's parental rights and affirm the termination of respondent mother's parental rights.    Reversed in part, affirmed in part.
    Judges Timmons-Goodson and Elmore concur.
    Report per Rule 30(e).

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