IN THE MATTER OF: Mecklenburg County
No. 03 J 40
B.R., a minor child
Tyrone C. Wade, for petitioner-appellee.
Carol Ann Bauer, for respondent-appellant.
CALABRIA, Judge.
J.W. (“respondent”), the biological father of the juvenile
(“B.R.”), appeals from an order of the district court terminating
his parental rights, pursuant to N.C. Gen. Stat. § 7B-1113 (2003).
B.R. was born prematurely to her mother (“the mother”) on 3
December 2001. B.R. had cocaine in her system and weighed
approximately four pounds. Mecklenburg County Department of Social
Services (DSS) filed a petition alleging neglect and dependency and
obtained nonsecure custody of B.R. on 7 December 2001, placing her
in foster care. See N.C. Gen. Stat. §§ 7B-401, -402, -500 (2003).
Although both respondent and the mother were served with a
notice of hearing on 7 December 2001, their attorneys attended but
they failed to attend the initial seven-day hearing on 11 December
2001. See N.C. Gen. Stat. § 7B-506 (2003). The district courtfound the “parents have shown little interest in caring for or
parenting [B.R.,]” and ordered that DSS retain nonsecure custody of
B.R.
An adjudicatory and dispositional hearing was held 24 January
2002. Again, neither parent attended. The district court entered
an order adjudicating B.R. neglected and dependent and continuing
B.R.'s foster care placement through DSS. The court's disposition
included findings that respondent's attorney had been unable to
contact him, that respondent and the mother “have shown no interest
in [B.R.]'s care [and have] not appeared at any [court]
hearings[,]” and that B.R.'s maternal grandmother “is not a
placement option [because] she is already caring for [the mother's]
two older children [and] cannot care for this child.” The court
scheduled a permanency planning hearing for 26 February 2002. It
proscribed visitation until the parents appeared in court and
directed the parents to contact DSS “if they wish to be involved
[with B.R.'s] care.”
Respondent and the mother attended the 26 February 2002
permanency planning hearing. Respondent requested a paternity
test. The mother “indicate[d] to the court that she has begun to
address her addiction problem” but “ha[d] not consistently followed
through with treatment protocol[.]” The court declined to change
the permanent plan to termination of parental rights as recommended
by DSS but alerted the parents that they “must follow through with
the case plan objectives [without] fail if they wish reunification
to remain the goal.” It ordered respondent to submit to apaternity test and a parenting evaluation and to comply with the
case plan developed by DSS. Testing confirmed respondent's
paternity of B.R. on 18 March 2002, and he was notified of the
results on 11 April 2002.
The court held additional review hearings on 24 May 2002 and
12 July 2002 and entered orders maintaining the status quo. In its
12 July 2002 order, based upon the determination of respondent's
paternity, the court authorized visitation between respondent and
B.R. Respondent's visitation was suspended upon his arrest and
confinement for attempted common law robbery on 12 September 2002.
Respondent was released on 25 October 2002 but subsequently pled
guilty to this offense and received an active prison sentence of
fourteen to seventeen months.
The court changed the permanent plan from reunification to
termination of respondent's and the mother's parental rights
following a review hearing held 29 October 2002. In its review
order, the court found the “parents have made little progress
toward achieving case plan objectives.” In addition to his
incarceration on the attempted robbery charge, the court noted that
respondent's parenting evaluation found he was “evasive [and]
defensive” and unaware of “how to parent a small child.” The order
provided, however, that respondent was “free to comply [with the]
case plan to satisfy [the] court of his ability to care for [B.R].”
DSS filed a petition to terminate parental rights on 14
January 2003, alleging, inter alia, the following grounds for
termination: (1) the parents had neglected and abandoned B.R.; (2)the parents had willfully left B.R. in foster care for more than
twelve consecutive months without reasonable progress in correcting
the conditions which led to her placement; (3) the parents had
willfully failed to pay a reasonable portion of the costs of B.R.'s
care while in DSS custody; and (4) the parents were incapable of
providing care and supervision for B.R. such that she was a
dependent juvenile as defined by N.C. Gen. Stat. § 7B-101(9)
(2003). See N.C. Gen. Stat. § 7B-1111(a) (2003).
The mother failed to attend the August 2003 termination
hearing. Respondent testified, expressing his intention to find
stable employment and provide for B.R. upon his release from
incarceration in March of 2004. He asked the court to place B.R.
with his mother, (“the grandmother”), “[u]ntil I can get out and
provide for her.” The grandmother testified that she came to the
hearing “to see if I could get [B.R.], if it was too late for me to
get her.” The grandmother expressed her willingness to “keep
[B.R.] until [respondent] got a full-time job and a place to stay.”
When asked why she had not come forward or contacted DSS at any
time prior to the termination hearing, the grandmother claimed that
the mother had told her she “was too old.” The grandmother
acknowledged she had seen B.R. only three times and had no
familiarity with her developmental or educational needs.
In its order terminating respondent's parental rights, the
court made the following findings of fact by clear, cogent, and
convincing evidence:
24. . . . Since the 29 October, 2002 hearing,
respondent father has not fully complied withthe case plan. He has sporadic employment,
has been arrested for attempted common-law
robbery, does not have stable housing and is
not in a position to properly provide for the
juvenile. He completed parenting classes on
April 16, 2003.
. . .
26. That [respondent] admitted . . . that he
consumes a six pack of beer three times a
week. He has not participated in substance
abuse treatment and continues to deny domestic
violence though the mother has admitted
domestic violence episodes.
27. . . . [R]espondent father is considerably
unstable. He has a criminal history that has
resulted in two years in prison. He was
arrested once during the [parenting]
evaluation and tested positive for cocaine.
He has a questionable substance abuse history
and has been unemployed for most of the past
year. He has not demonstrated any stable
characteristics that would enable him to be an
appropriate consistent, available, involved
organized parental figure in the life of the
juvenile.
28. . . . [I]n order for respondent father to
be an appropriate parental figure, he would
have to demonstrate a two to three year
pattern of stable employment and an absence of
criminal behavior before being considered a
responsible parenting figure for his daughter.
. . . The respondent father has not refrained
from criminal behavior. He is currently
incarcerated on attempted common law robbery
and continued to deny testing positive for
cocaine. His explanation before the Court
today is that his cocaine positive test was
perhaps the result of eating sesame seeds.
29. That respondent father does not have
stable employment and does not have stable
housing. His expectation upon release from
incarceration is to return to the home of his
mother, [G.W.]
. . .
34. That both respondent parents have the
ability to be gainfully employed; however,
they have failed to maintain stable
employment.
. . .
36. . . . [The grandmother] has raised
another child of [respondent]'s, . . . who is
now 17 years of age. [The grandmother] is 70
years of age and does not suffer from any
disability. She has only seen [B.R.] three
times since birth . . . [and] prior to the
juvenile coming into foster care.
37. That respondent father has never asked or
indicated that he wished to be the primary
caretaker for his child. He has indicated his
preference that either the mother or the
grandmother be considered as the caretaker.
38. That both sets of grandparents were
approached by the mother and father about
caring for the child, but both declined to do
so on a permanent basis.
39. That it has cost $38,740.96 to maintain
the juvenile in foster care and neither parent
has contributed any monies greater than zero
to defray the cost of out of home placement.
. . .
41. The[ parents] have not made substantial
progress to complete the case plan objectives.
. . .
43. That respondent father was convicted of
attempted common law robbery and began serving
his prison term in February, 2003. His
estimated release date is March, 2004.
. . .
45. That the juvenile is currently in foster
care, where she is receiving adequate care,
supervision and discipline, the juvenile has
suffered developmental delays and her needs
are being met.
46. That the foster parent[s] are
participating in many services designed to
meet her developmental and physical needs.
The juvenile is bonded with the foster
parent[s] and has been in that home since
being placed in foster care. The home is an
adoptive home and is a stable, loving
environment.
47. That the Court specifically finds it is
not able to place the juvenile with either
parent after one year and eight months of
foster care placement.
48. That the goal of the case is adoption and
the Court specifically finds that adoption is
in the juvenile's best interest.
After finding three of the four grounds for termination alleged by
DSS, the Court concluded “[t]hat the best interest of [B.R.] would
be served by the termination of parental rights with respect to
both parents in order that the juvenile may be placed in a
permanent safe living arrangement where her needs will be met on a
consistent basis.”
On appeal, respondent argues that the trial court erred in
concluding that termination of his parental rights was in the best
interest of B.R. without first exploring a possible placement with
his mother, the grandmother. Respondent contends that according to
N.C. Gen. Stat. §§ 7B-505 and 907(b)(2) (2003), when a minor child
is removed from the custody of the parents, the court has a duty to
explore placement with a relative before placing the child with
strangers.
The statutes cited by respondent apply to custody placements
during abuse, neglect and dependency proceedings under N.C. Gen.
Stat. § 7B-401 and at permanency planning hearings under 7B-907,not for the termination of parental rights proceedings instituted
pursuant to N.C. Gen. Stat. § 7B-1104. We further note respondent
did not raise the issue of a possible placement with the
grandmother at any time during the course of the abuse, neglect,
and dependency proceedings.
The termination of parental rights is a two-stage process,
consisting of (1) an adjudication of the existence or nonexistence
that grounds for termination exist under N.C. Gen. Stat. § 7B-1111
(2003), and (2) a disposition based on this determination. See
N.C. Gen. Stat. §§ 7B-1109, -1110 (2003). "Once one or more of the
grounds for termination are established, the trial court must
proceed to the dispositional stage where the best interests of the
child are considered." In re Locklear, 151 N.C. App. 573, 575, 566
S.E.2d 165, 166 (2002). At the dispositional stage, the decision
to terminate parental rights where grounds for termination exist is
reviewed only for abuse of discretion. In re McMillon, 143 N.C.
App. 402, 408, 546 S.E.2d 169, 174, disc. review denied, 354 N.C.
218, 554 S.E.2d 341 (2001). A court abuses its discretion if its
decision “is manifestly unsupported by reason or is so arbitrary
that it could not have been the result of a reasoned decision."
State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413
(1998).
Respondent does not contest the district court's findings of
fact or its conclusion that grounds for termination existed under
N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (3). Instead, he
challenges the court's disposition, in light of the grandmother'stestimony that she was willing to care for B.R. until respondent
obtained stable employment and housing. We find no abuse of
discretion by the district court. The court's emphasis on B.R.'s
need for a permanent placement was consistent with the legislative
intent expressed in N.C. Gen. Stat. § 7B-1100. The court
specifically found that none of the grandparents were willing to
provide a permanent placement for B.R. Moreover, although the
grandmother expressed a willingness to take custody of B.R. until
respondent found stable housing and employment, respondent had
neither expressed a desire to be B.R.'s primary caretaker nor
demonstrated the capacity to maintain a stable living arrangement
suitable for a developmentally delayed infant. The fact that B.R.
had been in a loving and stable environment with an adoptive foster
family for twenty months, since four days after her birth, and that
the foster family was actively addressing her special developmental
needs, further supported the court's conclusion that adoption was
in her best interest. See In re Howell, 161 N.C. App. 650, 654,
589 S.E.2d 157, 161 (2003) (citing In re Taylor, 97 N.C. App. 57,
64, 387 S.E.2d 230, 233-34 (1990)).
Affirmed.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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