An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-341


Filed: 15 March 2005

        A Minor Child


v .                         Wake County
                            No. 03 J 432
By and Through his Guardian
Ad Litem, Patricia Gibbons,

    Appeal by respondent from order entered 8 October 2003 by Judge Monica M. Bousman in Wake County District Court. Heard in the Court of Appeals 13 October 2004.

    Tiana H. Irvin for petitioner-appellee.

    Paul F. Herzog for respondent-appellant.

    GEER, Judge.

    Respondent Kencorie Quanties Vereen appeals from the order of the district court terminating his parental rights to Baby W. He argues that the trial court erred by (1) denying his motion to dismiss the petition pursuant to Rule 12(b)(6), (2) denying his motion that the action be dismissed as a sanction under Rule 11 of the Rules of Civil Procedure, and (3) allowing petitioner to question his mother about his prior bad conduct. Because we conclude that the trial court properly denied both motions and didnot err in allowing the cross-examination challenged by respondent, we affirm the decision of the trial court.


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). 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. If the petitioner meets the 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. Id.
    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.

    Judge CALABRIA concurs.
    Judge STEELMAN concurs in a separate opinion.
    Report per Rule 30(e).

NO. COA04-341


Filed: 15 March 2005

        A Minor Child


v .                         Wake County
                            No. 03 J 432
By and Through his Guardian
ad Litem, Patricia Gibbons,

    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
    The trial court expressed concerns about the mother's credibility. She had testified that respondent was currently in school and on track to graduate, while respondent subsequently acknowledged that he was not in school. The school had required him to leave ninth grade because of unexcused absences and he had not re-enrolled the following year.

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