An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1322


Filed: 3 August 2004

In the Matter of:

J.E.P.                            Guilford County
                                No. 01 J 69


    Appeals by respondents from order signed 18 March 2003   (See footnote 1)  by Judge H. Thomas Jarrell, Jr. in Guilford County District Court. Heard in the Court of Appeals 9 June 2004.

    Michael K. Newby for petitioner-appellee Guilford County Department of Social Services; and Attorney Advocate Joyce Terres for the Guardian Ad Litem Program-appellee.

    M. Victoria Jayne for respondent-appellant mother.

    Robert W. Ewing for respondent-appellant father.

    BRYANT, Judge.

    J.R. (respondent mother) and J.B. (respondent father) appeal an order signed 18 March 2003 terminating their parental rights as to their minor child J.E.P.
    On 15 March 2001, the Department of Social Services (DSS) filed a petition alleging 4½ month old J.E.P. was a neglected and dependent minor child in that she tested positive for marijuana at birth, and the mother admitted breast feeding J.E.P. even though she continued to use marijuana during that time. An orderadjudicating J.E.P. neglected and dependent was entered 2 May 2001, and J.E.P. was placed in the custody of DSS. On 11 July 2002, DSS filed a petition to terminate the parental rights of respondents. Following hearings conducted on 6 January 2003, 13 January 2003, 3 February 2003, and 6 February 2003, the parental rights of both respondents were terminated. Respondents both gave timely notice of appeal.

Standard of Review

    There are two stages of a hearing on a petition to terminate parental rights: adjudication and disposition. At the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence that at least one statutory ground for termination exists. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 173-74 (2001). A finding of one statutory ground is sufficient to support the termination of parental rights. In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). Upon a finding that at least one statutory ground for termination exists, the district court proceeds to the disposition stage, where it determines whether termination of parental rights is in the best interests of the child. McMillon, 143 N.C. App. at 408, 546 S.E.2d at 174.
    When reviewing an appeal from an order terminating parental rights, our standard of review is whether: (1) there is clear, cogent, and convincing evidence to support the district court's findings of fact; and (2) the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d838, 840 (2000). Clear, cogent, and convincing evidence “is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases.” In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984).
    If the decision is supported by such evidence, the district court's findings are binding on appeal even if there is evidence to the contrary. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). Moreover, when a party does not specifically assign as error findings of fact that are allegedly unsupported by competent evidence, those findings are presumed supported by competent evidence. In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001). The district court's determination that termination of parental rights would be in the best interest of the child is reviewed applying an abuse of discretion standard. In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995).

    The issues on appeal are whether the district court erred in finding and concluding: (1) the child was neglected; (2) respondents have not made reasonable progress under the circumstances to correct the conditions that led to the removal of the child; and (3) respondents willfully failed to pay a reasonable portion of the cost of care for the child. Additionally, respondent father argues that the district court erred in finding that he failed to judicially establish paternity.
    Finding only one of the statutory grounds under N.C. Gen. Stat. § 7B-1111(a) is sufficient to support the termination of parental rights. Pierce, 67 N.C. App. at 261, 312 S.E.2d at 903. In the instant case, the district court found: (1) the child was neglected (§ 7B-1111(a)(1)); (2) respondents left the child in foster care for more than twelve months without showing that they made reasonable progress under the circumstances within twelve months to correct the conditions that led to the removal of the child (§ 7B-1111(a)(2)); and (3) for a continuous period of six months prior to the filing of the petition, respondents willfully failed to pay a reasonable portion of the cost of care for the child (§ 7B-1111(a)(3)). Here, we will focus on the district court's findings as grounds to terminate pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
    Section 7B-1111(a)(2) provides for termination of parental rights if “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.” N.C.G.S. § 7B-1111(a)(2) (2003); In re Pierce, 356 N.C. 68, 75, 565 S.E.2d 81, 86 (2002) (the twelve-month period envisioned by the legislature consists of the twelve months leading up to the filing of the petition for termination of parental rights). Willfulness under this section means something less than willful abandonment and does not require a finding of fault by the parent. In re Oghenekevebe,123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996).
    Willfulness may be found where a parent has made an attempt to regain custody of the child but has failed to exhibit “reasonable progress or a positive response toward the diligent efforts of DSS.” Id. at 440, 473 S.E.2d at 398; see Nolen, 117 N.C. App. at 700, 453 S.E.2d at 225 (“implicit in the meaning of positive response is that not only must positive efforts be made towards improving the situation, but that these efforts are obtaining or have obtained positive results”). This Court has held that “extremely limited progress is not reasonable progress.” Nolen, 117 N.C. App. at 700, 453 S.E.2d at 224-25. This standard operates as a safeguard for children. If parents were not required to show both positive efforts and positive results, “a parent could forestall termination proceedings indefinitely by making sporadic efforts for that purpose.” Id. at 700, 453 S.E.2d at 225.
    Here, neither respondent specifically assigned as error any of the findings concerning this ground for termination; therefore, they are binding on appeal. See Beasley, 147 N.C. App. at 405, 555 S.E.2d at 647; Huff, 140 N.C. App. at 291, 536 S.E.2d at 840; In re Caldwell, 75 N.C. App. 299, 301, 330 S.E.2d 513, 515 (1985). The findings are as follows:
        3.    The Court finds that the juvenile was adjudicated neglected and dependent on March 22, 2001 due to the parents' substance abuse issues and non- cooperation with social services efforts.

        4.    . . . Both respondents entered into a service agreement on April 4, 2001 in which they agreed to:
                (a)    Complete an assessment at Alcohol Drug Services (ADS) within 2 weeks and comply with any treatment recommendations;
                (b)    Complete the Crossroads Group program for domestic violence counseling;
                (c)    Not engage in disputes with each other;
                (d)    Attend and complete a parenting assessment and comply with all recommendations;
                (e)    Maintain stable housing and inform DSS of any changes with 72 hours;
                (f)    Obtain and maintain employment and inform DSS of any changes within 72 hours;
                (g)    Attend and complete all appointments to complete a parenting assessment;
                (h)    Schedule and attend individual counseling [at] Guilford Mental Health; [and]
                (i)    Attend all supervised visitation.

        5.    The Respondents did not fully comply with the terms of the service agreement however the respondent parents did attend a parenting class and the mother eventually did attend the appointments necessary to complete the Parenting Assessment but only after it was re- scheduled twice. However the Respondents failed to comply with . . . the other terms and the service agreement was updated on May 18, 2001 and then on November 11 with [the mother] but [the putative father] refused to update his agreement. [The mother's] agreement had the same requirements since she had not yet accomplished those goals. However she did eventually get an ADS assessment and obtain treatment and she completed the Crossroads Group for domestic violence counseling after November of 2001.

        6.    The [mother] also failed to comply with the November service agreement and DSS was unable to update the agreementsbecause of the unavailability of the [mother] in December of 2001 and January of 2002 and it was not until May of 2002 that [the mother] signed an updated service agreement. [The putative father] never participated in re-unification efforts after failing to comply with the initial agreement.

        7.    The respondent mother's May 2002 service agreement was similar in terms to the previous agreements except that it added as terms that:

                (a)    The mother was to attend NA/AA;
                (b)    Comply with the LEAP (employment assistance) program;
                (c)    Pay child support; [and]
                (d)    Provide documentation concerning her pending criminal matter.

        8.    The respondent mother also failed to fully comply with the terms of this service agreement. She did not comply with the LEAP Program, she has not obtained and maintained stable employment, she has not consistently paid child support, and she has not remained drug free as she has tested positive for marijuana in June 7, 2002 to go along with her previous positive tests for marijuana or cocaine on 8/17/01, 1/11/02 and 1/17/02.

        . . . .

        10.    The Court finds that the respondent mother was originally in an ADS program before [J.E.P.] came into care and was discharged unsuccessfully, then had been in the intensive 10 Day Treatment program. Further since [J.E.P.] has been in care, [the mother] has been in the Woman's Group twice, discharged once unsuccessful [sic] and once successful [sic]. Finally [the mother] was in the Aftercare program when she relapsed in May. After a meeting between the DSS representatives, ADS personnel and the mother and her attorney, it was decidedin June of 2002 that she would return to the Woman's Group for the third time but she did not follow through with the necessary procedures for re-entry into the program and she was dropped from participation due to non-cooperation. The Court finds that the mother entered a program in Rowan County which was similar to ADS in September of 2002. The Respondent mother had not fully revealed her extensive drug history in the intake application and a representative from that program testified that they may have to re-assess her treatment due to the revelations concerning her prior cocaine use. The mother admitted that as of the date of the hearing she still had a persistent drug problem. The Court also finds that [the putative father] never fully participated in any drug program beyond intake at ADS and that he has continued to test positive for cocaine and marijuana.

        . . . .

        12.    The Court finds that the respondents have not fully cooperated with the Department of Social Services during the time the juvenile has been in custody. Specifically, the father has not complied with a service agreement, has not maintained contact with the social worker and has not always been available for drug testing on a consistent basis. Specifically, the mother has not complied with any of her service agreements, has not maintained consistent contact with her social worker, has demonstrated a pattern of deception throughout the course of the time [J.E.P.] has been in custody up to the date of the hearing.

    These findings support the conclusion that respondents failed to make reasonable progress under the circumstances within twelve months to correct the conditions that led to the removal of the child. This assignment of error is overruled.


    Next, respondent father argues that the district court erred in finding that he failed to judicially establish paternity.   (See footnote 2) 
    There are several procedures by which a putative father may judicially establish paternity when a child is born out of wedlock, including: (1) filing an affidavit in the central registry of the Department of Human Resources; (2) legitimating the child (or filing a petition to do so) pursuant to N.C. Gen. Stat. § 49-10, or filing a civil action pursuant to N.C. Gen. Stat. § 49-14; (3) marrying the mother; or (4) providing substantial financial support or consistent care to the child and mother. N.C.G.S. § 7B- 1111(a)(5) (2003).
    Here, the trial court found that prior to the filing of the petition to terminate, respondent father had not undertaken any of the aforementioned procedures to have his paternity judicially established. Respondent father has not presented any evidence thatpaternity had been judicially determined, nor does the record reflect such evidence. Our review is limited to the cold record on appeal, and without any presentation of evidence that respondent father did in fact judicially establish paternity, this assignment of error is overruled. Forrest v. Pitt County Bd. of Educ., 100 N.C. App. 119, 123, 394 S.E.2d 659, 662 (1990) (stating this Court's review is limited to evidence which appears in the record on appeal, and this Court cannot speculate that there was prejudicial error); see also Britt v. Britt, 49 N.C. App. 463, 469, 271 S.E.2d 921, 926 (1980).
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
    Caption name and respondents' names have been changed to initials to protect the identity of the minor child.
Footnote: 2
    We acknowledge that prior court orders in this mat ter refer to the respondent father as J.E.P.'s father. However, the order in which the respondent father's parental rights were terminated stated that “it is hereby ordered, adjudged, and decreed that all rights and obligations that . . . [respondent father] and the unknown putative father might have arising from the parental relationship to [JEP] be and are hereby terminated.” We find this language to be supportive evidence that the respondent father has not taken the necessary actions to judicially establish paternity for JEP.

    We further acknowledge that in his brief, respondent father alleges to have filed a civil action to establish paternity as pertains to J.E.P. and himself. However, respondent father has failed to include in the record on appeal a copy of the civil action. Our review is limited to the cold record on appeal and without the necessary proof included in the record, we cannot consider respondent father's naked allegation in making our determination. N.C.R. App. P. 9(a).

*** Converted from WordPerfect ***