Because respondent has not assigned error to any of the
district court's findings of fact, those findings are binding on
appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731
(1991). Those findings establish the following facts. Baby W. was
born on 21 June 2003 in Cumberland County. Baby W.'s mother was 15
years old. Six months earlier, the mother had told respondent, who
was 16 at the time of the hearing, that she was pregnant.
Paternity testing established that respondent was the father of
Baby W.
The mother surrendered custody of the baby to petitioner
Amazing Grace Adoptions on the same day that the baby was born, and
he was placed with a potential adoptive family. On 25 June 2003,four days after the child's birth, Amazing Grace Adoptions filed a
petition to terminate respondent's parental rights. The trial
court conducted a hearing on the petition on 25 September 2003.
Respondent was one hour and fifty minutes late for the
hearing. His counsel did not offer any evidence during the
adjudicatory phase. The trial court found
[t]hat the father of the child, [Baby W.],
born out of wedlock, has not prior to the
filing of the petition to terminate parental
rights: established paternity judicially or
by affidavit which has been filed in a central
registry maintained by the North Carolina
Department of Health and Human[] Resources;
legitimated the child pursuant to provisions
of NCGS 49-10, or filed a petition for that
specific purpose; legitimated the child by
marriage to the mother of the child; nor
provided substantial financial support or
consistent care with respect to the child and
the mother of the child.
The court further found that even though respondent had been
working for a landscaping business for three months earning $250.00
to $300.00 per week and had saved $450.00, he had contributed none
of that money for the baby's care and needs. Based on these
findings of fact, the court concluded that grounds existed to
terminate respondent's parental rights pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(5).
Accordingly, the court moved to the dispositional phase of the
proceedings. Petitioner presented evidence regarding the proposed
adoptive family, the family's care of the baby, and the parents'
backgrounds. In response, respondent offered his own testimony as
well as the testimony of his mother and one of his brothers. After
making specific findings regarding the adoptive family, the courtgenerally found "that Baby [W.] has the potential for a full and
satisfying life with the adoptive family." With respect to
respondent, the court found that he was only 16 years old, he had
been required to leave school because of unexcused absences during
the ninth grade, he did not re-enroll in high school the next year,
he had made no concrete preparations for parenting the baby, and
his conduct "has been such as to demonstrate that he will not
promote the healthy and orderly physical and emotional well-being
of the child." The court then concluded that it was in the best
interests of the child to terminate respondent's parental rights
because "the minor child is in need of a permanent plan of care at
the earliest possible age which can be obtained only by the
severing of the relationship between the child and the Respondent
by termination of his parental rights."
Respondent first contends that the trial court erred when it
denied a motion to dismiss the termination of parental rights
petition on the grounds that the petition did not contain
sufficient factual allegations to meet the requirements of N.C.
Gen. Stat. § 7B-1104(6) (2003). We hold that the trial court
properly denied the motion to dismiss.
N.C. Gen. Stat. § 7B-1104(6) requires the petition to set
forth "[f]acts that are sufficient to warrant a determination that
one or more of the grounds for terminating parental rights exist."
This Court has previously held with respect to the similarly-worded
predecessor statute that a "petitioner['s] bare recitation . . . ofthe alleged statutory
grounds for termination does not comply with
the requirement in N.C. Gen. Stat. § 7A-289.25(6) that the petition
state '
facts which are sufficient to warrant a determination' that
grounds exist to warrant termination."
In re Quevedo, 106 N.C.
App. 574, 579, 419 S.E.2d 158, 160 (quoting N.C. Gen. Stat. § 7A-
289.25(6) (1990) (repealed 1998)) (alteration in original),
appeal
dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992). Nevertheless, the
factual allegations in the petition need not be "exhaustive or
extensive[;] they must put a party on notice as to what acts,
omissions or conditions are at issue."
In re Hardesty, 150 N.C.
App. 380, 384, 563 S.E.2d 79, 82 (2002).
The petition in this case alleges that:
[T]he birth mother . . . is fourteen years of
age and that the Respondent is unmarried and
15 years of age, that they met at school and
that they "dated" for a time, that they are no
longer "dating"; that she had sexual
intercourse with the Respondent minor during
the approximate time of conception, alleged to
be October 17, 2002; that the Respondent is
the only person that she has had sexual
intercourse with during the time the child
could have been conceived; that she has not
received any substantial financial support
from the Respondent or any consistent care
from the Respondent during the pregnancy or
thereafter and that she has not married the
Respondent.
The petition further alleges that respondent (1) failed to
establish his paternity of the child either judicially or by
affidavit filed with the North Carolina Department of Human
Resources, (2) failed to formally legitimate the child, (3) failed
to legitimate the child by marrying the mother, and (4) failed to
provide substantial support or consistent care to the child and hismother. These allegations are sufficient to state a factual basis
for terminating respondent's parental rights under N.C. Gen. Stat.
§ 7B-1111(a)(5) (failure to establish paternity, legitimate child,
or provide support or care). The allegations put respondent on
notice of what he did not do, what claims were pending against him,
and the issues involved in the proceedings.
Compare Hardesty, 150
N.C. App. at 384, 563 S.E.2d at 82
(holding that allegations in
petition were insufficient when they merely stated that the mother
was incapable of providing proper care for the child, but did not
include any facts explaining why the mother was deemed incapable of
providing care).
While, as respondent argues, the petition's allegations are
substantially similar to the language of N.C. Gen. Stat. § 7B-
1111(a)(5), that fact arises from the nature of this ground for
termination. 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.
"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).
As a result, the petition need only include allegations
sufficient to establish that respondent failed to comply with each
of the four means of legitimating or taking responsibility for the
child. The petition in this case adequately does so. Accordingly,
the trial court did not err in overruling respondent's motion to
dismiss pursuant to Rule 12(b)(6).
Respondent next contends that the trial court erred in
refusing to dismiss the petition as a sanction for violation of
N.C. Gen. Stat. § 1A-1, Rule 11 (2003). Respondent argues that
petitioner violated Rule 11 by failing to conduct a "reasonable
inquiry" into the case before filing the petition with the court.
Specifically, respondent points to the fact that petitioner waited
until several weeks after the petition was filed before obtaining
certain affidavits from government agencies that showed respondent
had failed to legitimate the child.
Under Rule 11, the signer of a pleading "certifies that three
distinct things are true: the pleading is (1) well grounded in
fact; (2) warranted by existing law, or a good faith argument for
the extension, modification, or reversal of existing law (legalsufficiency); and (3) not interposed for any improper purpose. A
breach of the certification as to any of these three prongs is a
violation of the Rule."
Bryson v. Sullivan, 330 N.C. 644, 655, 412
S.E.2d 327, 332 (1992) (internal quotation marks omitted).
Respondent urges that even if a complaint is well-grounded in fact
and law and was filed for a proper purpose, Rule 11 sanctions
should still be permissible based on the quality of the pre-filing
inquiry. It is not, however, a violation of Rule 11 to conduct a
short investigation; it is a violation to have a pleading that is
not factually or legally well-grounded as a result of an
unreasonable inquiry. Because respondent has not shown that the
petition was factually insufficient, legally insufficient, or filed
for an improper purpose, respondent has failed to show a Rule 11
violation. Accordingly, this assignment of error is overruled.
Respondent also argues that his constitutional right to be a
parent to his child was violated because the filing of the petition
only four days after the child's birth meant he never had a chance
to establish that he could be a good parent to his child. This
argument was not the subject of an assignment of error and,
therefore, is not properly before us. In any event, the trial
court found that respondent had known of the pregnancy and the
child's existence for six months prior to the child's birth. Our
appellate courts have held that such knowledge presents a
sufficient opportunity to demonstrate the necessary commitment to
the child.
In re Adoption of Byrd, 354 N.C. 188, 197, 552 S.E.2d
142, 148 (2001) ("We recognize that petitioners filed theiradoption petition the day after the child's birth, thus making it
almost impossible to provide support directly to her. Nevertheless,
respondent never provided tangible support for the mother or
expected child, even when he was unconditionally acknowledging his
paternity prior to [the birth of the child].");
In re T.L.B., __
N.C. App. __, __, 605 S.E.2d 249, 252 (2004) (rejecting argument
that father was unable to take the steps set out in N.C. Gen. Stat.
§ 7B-1111(a)(5) because of when he learned of the child).
See also
In re Adoption of Clark, 95 N.C. App. 1, 9, 381 S.E.2d 835, 840
(1989) ("[T]he Legislature weighed the putative father's rights
against the child's need for a stable adoptive home by choosing the
date the adoption petition is filed as the date before which the
putative father must take some step to legitimate or support his
child. . . . [T]he statutes do not provide for any notice to the
putative father of a petitioner's
intent to file a petition to
adopt his illegitimate chid or otherwise terminate his parental
rights."),
rev'd on other grounds, 327 N.C. 61, 393 S.E.2d 791
(1990). Respondent had an opportunity to assist with the care of
the mother and his unborn child, but the court's findings of fact
_ which are not assigned as error _ establish that respondent
failed to do so.
In his final assignment of error, respondent objects to the
questioning of respondent's mother during the dispositional phase
regarding (1) respondent's sexual misconduct with a 13-year-old
girl and (2) whether respondent was on probation at the time of the
hearing. On direct examination, respondent's mother testified inglowing terms about respondent and his future plans, including that
he was a "respectable kid" and that "[h]e's about one of the best
. . . that I have."
(See footnote 1)
"The essential requirement, at the dispositional hearing . .
. is that sufficient evidence be presented to the trial court so
that it can determine what is in the best interest of the child."
In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984). With
respect to this best interests inquiry, N.C. Gen. Stat. § 7B-901
(2003) provides:
The dispositional hearing may be informal
and the court may consider written reports or
other evidence concerning the needs of the
juvenile. The juvenile and the juvenile's
parent, guardian, or custodian shall have an
opportunity to present evidence, and they may
advise the court concerning the disposition
they believe to be in the best interests of
the juvenile. The court may consider any
evidence, including hearsay evidence as
defined in G.S. 8C-1, Rule 801, that the court
finds to be relevant, reliable, and necessary
to determine the needs of the juvenile and the
most appropriate disposition.
The Supreme Court has also held that "[w]henever the trial court is
determining the best interest of a child, any evidence which is
competent and relevant to a showing of the best interest of that
child must be heard and considered by the trial court."
Shue, 311
N.C. at 597, 319 S.E.2d at 574. "Without hearing and considering
such evidence, the trial court cannot make an informed andintelligent decision concerning the best interest of the child."
Id.
Here, the testimony of respondent's mother portrayed
respondent as a responsible, stable teenager likely to be able to
support and care for a child. In considering the best interests of
the child, it was appropriate for the trial judge to hear evidence
testing the accuracy of that picture.
See State v. Johnston, 344
N.C. 596, 608, 476 S.E.2d 289, 296 (1996) (permitting "the
introduction of evidence to dispel favorable inferences [for the
defendant] arising from defendant's cross-examination of a
witness");
see also State v. Roseboro, 351 N.C. 536, 553, 528
S.E.2d 1, 12 (once defendant introduced evidence of his reputation
for non-violence, the State was entitled to elicit evidence about
defendant's violence),
cert. denied, 531 U.S. 1019, 148 L. Ed. 2d
498, 121 S. Ct. 582 (2000). We therefore also overrule this final
assignment of error.
Affirmed.
Judge CALABRIA concurs.
Judge STEELMAN concurs in a separate opinion.
Report per Rule 30(e).
NO. COA04-341
NORTH CAROLINA COURT OF APPEALS
Filed: 15 March 2005
IN RE BABY W,
A Minor Child
AMAZING GRACE ADOPTIONS,
Petitioners,
v
.
Wake County
No. 03 J 432
KENCORIE QUANTIES VERREN,
By and Through his Guardian
ad Litem, Patricia Gibbons,
Respondent.
STEELMAN, Judge concurring.
I concur with the majority that the trial court's termination
of respondent's parental rights should be affirmed. However, I
would conclude that respondent's first assignment of error is
without merit based upon a different legal theory.
Respondent seeks review of the trial court's denial of his
motion to dismiss made pursuant to Rule 12(b)(6) of our Rules of
Civil Procedure. Following the denial of this motion, the trial
court conducted a full hearing on the petition for termination of
parental rights. The law in this state is clear - the denial of a
motion to dismiss is not reviewable on appeal when there is a final
judgment on the merits. Concrete Service Corp. v. Investors Grp,
Inc., 79 N.C. App. 678, 682-83, 340 S.E.2d 755, 758-59, cert.
denied, 317 N.C. 333, 346 S.E.2d 137 (1986). See also Pierce v.
Reichard, 163 N.C. App. 294, 297, 593 S.E.2d 787, 789 (2004);
Shadow Grp v. Heather Hills Home Owners Ass'n, 156 N.C. App. 197,199, 579 S.E.2d 285, 286 (2003); Berrier v. Thrift, 107 N.C. App.
356, 359, 420 S.E.2d 206, 208 (1992); Shingledecker v.
Shingledecker, 103 N.C. App. 783, 786-87, 407 S.E.2d 589, 591
(1991); Drain v. United Services Life Ins. Co., 85 N.C. App. 174,
176, 354 S.E.2d 269, 271 (1987); Duke Univ. v. Stainback, 84 N.C.
App. 75, 77, 351 S.E.2d 806, 807 (1987); In re Baby Boy Shamp, 82
N.C. App. 606, 612, 347 S.E.2d 848, 851-52 (1986). This line of
cases is based on our Supreme Court's decision in Harris v. Walden,
314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985), which held the
denial of a motion for summary judgment was not appealable
following a trial on the merits.
The majority bases its analysis on the case of In re Hardesty,
150 N.C. App. 380, 563 S.E.2d 79 (2002). In Hardesty, this Court
reversed a judgment terminating parental rights, holding the trial
court should have granted respondents' motion to dismiss under Rule
12(b)(6). I believe that case was wrongly decided.
A proceeding for termination of parental rights is a civil
matter governed by our Rules of Civil Procedure. Once a hearing on
the merits has taken place and a final judgment rendered, the
question presented to the appellate court is whether there was
sufficient evidence presented to withstand a motion for an
involuntary dismissal under Rule 41(b), not whether a Rule 12(b)(6)
motion was improperly denied.
I can find nothing in Chapter 7B of the Juvenile Code that
creates an exception to the general rule of non-appealability of
the denial of a Rule 12(b)(6) motion in this situation. Nor do Isee any reason for having a different rule for juvenile cases than
for all other civil cases. The cases beginning with Concrete
Services are binding precedent on this Court. In re appeal from
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). I
would affirm the trial court on respondent's first assignment of
error based on this well-established line of cases.
Footnote: 1