An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-487


Filed: 1 November 2005


B.S.J.                            Halifax County
                                No. 02 J 67

    Appeal by Respondent from order signed 4 November 2004 by Judge H. Paul McCoy, Jr., in District Court, Halifax County. Heard in the Court of Appeals 10 October 2005.

    Jeffery L. Jenkins for petitioner-appellee, Halifax County Department of Social Services.

    Michael J. Reece for respondent-father.

    WYNN, Judge.

     The trial court may terminate the rights of a parent upon a finding of neglect of the juvenile. See N.C. Gen. Stat. § 7B-1111(a)(1) (2004). In this case, there was sufficient evidence to support the trial court's findings of fact of neglect. Accordingly, we affirm the trial court's order.     
    The facts pertinent to this appeal indicate that on 29 April 2002, Halifax County Department of Social Services (DSS) filed petitions alleging abuse, neglect and dependency. B.S.J. (“the minor child”) was taken from the home of his mother and placed in protective custody of DSS. The minor child was adjudicated neglected and dependent on 2 July 2002. DSS subsequently filed a petition to terminate the parental rights of Respondent-father andthe mother. In an order entered 7 November 2003, the trial court terminated the parental rights of only the mother.
    On 11 June 2004, DSS again moved to terminate Respondent's parental rights alleging that Respondent: (1) neglected the minor child ; (2) willfully left the child in foster care or placement outside the home for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the child; and (3) willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition. The matter came before the trial court on 14 October 2004. On 4 November 2004, the trial court concluded that grounds for termination of parental rights existed under section 7B-1111(a)(1) (neglect) of the North Carolina General Statutes. The trial court further concluded that it was in the minor child's best interest and, through its order for termination of parental rights, thereafter terminated Respondent's parental rights. Respondent appeals from the order terminating his parental rights.
    The issue on appeal is whether the trial court's findings support its conclusion of neglect.
    Termination of parental rights involves a two-stage process. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudicatory stage, “the petitioner has the burden of establishing by clear and convincing evidence that at least oneof the statutory grounds listed in N.C. Gen. Stat. § 7B-1111 exists.” In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002). “If the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child.” Id. at 98, 564 S.E.2d at 602. The trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. Id.
    Respondent contends the trial court's conclusion that he neglected his child is not supported by sufficient, competent evidence or findings of fact. We find the evidence sufficient to support the order terminating parental rights and affirm the decision of the trial court.
    The court may terminate the rights of a parent upon a finding of neglect of the juvenile. See N.C. Gen. Stat. § 7B-1111(a)(1). A neglected juvenile, is defined in part as “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent[.]” N.C. Gen. Stat. § 7B-101(15) (2004). To prove neglect in a termination case, there must be clear and convincing evidence (1) the juvenile is neglected within the meaning of section 7B-101(15) of the North Carolina General Statutes, and (2) “the juvenile has sustained 'some physical, mental, or emotional impairment . . . or [there is] a substantial risk of such impairment as a consequence of'” the neglect. In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (quoting In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02(1993)). Because “[n]eglect may be manifested in ways less tangible than failure to provide physical necessities[,] . . . the trial judge may [also] consider, . . . a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.” In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982).
    “A finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997). “Termination of parental rights for neglect may not be based solely on past conditions which no longer exist.” Id. “[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.” In re Ballard, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). If the child has been removed from the parents' custody before the termination hearing, and the petitioner presents evidence of prior neglect, including an adjudication of such neglect, then “[t]he trial court must also consider any evidence of changed conditions in light of the evidence of prior neglect and the probability of a repetition of neglect.” Id. at 715, 319 S.E.2d at 232. Thus, where “there is no evidence of neglect at the time of the termination proceeding . . . parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returnedto [his or] her parents.” In re Reyes, 136 N.C. App. at 815, 526 S.E.2d at 501. The trial court's decision to terminate parental rights is reviewed on an abuse of discretion standard. In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88 (1996).
    In support of its conclusion that Respondent's parental rights should be terminated under section 7B-1111(a)(1) of the North Carolina General Statutes , the trial court entered the following pertinent findings of fact:
         6. . . .just after the child was born, his mother and [Mr. X] signed an Affidavit of Parentage at the hospital stating, under oath, that Mr. [X] was [the child's] father. On May 23, 2002, at the nonsecure custody review hearing held in this matter prior to the adjudication hearing, [the mother] testified that she knew that Mr. [X] was not the father of the juvenile, that she had never had sexual relations with Mr. [X], and that she always knew [Respondent] was the father of the child. Mr. [X] was later allowed by the court to rescind his Affidavit of Parentage, and in early June of 2002, DNA testing established that [Respondent] was the father of the juvenile.

        7. The child was adjudicated by the court to be a Neglected Juvenile as defined in N.C.G.S. 7B-101(15) and a Dependent Juvenile, as defined in N.C.G.S. 7B-101(9) on June 27, 2002. A Disposition Order entered by the court on that same date provided that the juvenile would remain in the custody of the Department of Social Services, and that the plan for the child would be “to work toward reunification of the juvenile with his mother or, in the alternative, to work toward placement with his father or some other suitable relative.”

        8. Following a review hearing on November 25, 2002, the court made numerous findings of fact as to [the mother]'s history of criminal convictions, incarceration, mental illness, and bizarre statements and behavior; and found that her relationship with [Respondent]continued in spite of repeated allegations by [the mother] that [Respondent] has been physically and verbally abusive toward her, that he has failed to pay back money which she “loaned” to him, and that he is not able to care for a child. The court affirmed the Department's suspension of visitation between the juvenile and both parents in October of 2002, ordered that efforts to reunify the juvenile with either of his parents cease, and changed the permanent plan for the child to adoption.

        9. A Motion for termination of the parental rights of both of the juvenile's parents was filed by the Department of Social Services on March 13, 2003. A hearing was held by the court on the Motion for termination of parental rights on October 14 and October 23, 2003, and a signed order terminating [the mother]'s parental rights was filed with the Clerk of Court on November 7, 2003. The court's order of November 7, 2003 did not, however, terminate the rights of [Respondent], the father of the juvenile.

        10. In light of the outcome of the first termination of parental rights motion, a permanency planning review hearing was scheduled for November 13, 2003, for the court to determine whether the plan for the juvenile would be placement with his father or some other person. The said hearing was continued to December 11, 2003 due to a power failure at the courthouse, and from December 11, 2003 to January 8, 2004, and again to February 12, 2004 at the request of [Respondent]'s previous attorney, Ms. Crew.

        11. Following a permanency planning hearing on February 12, 2004, the court found that, because the juvenile was placed into the Department's custody immediately after his birth, and [Respondent] was not found to be the father of the juvenile until paternity testing was completed in June of 2002, [Respondent] never had an opportunity to live with the juvenile. The court also found that, although he was allowed by the court to begin supervised visitation with the juvenile after his paternity was established, [Respondent]'s visitation was suspended, along with themother's visitation, in October of 2002. The court therefore determined that [Respondent] had not had an opportunity to bond with his child, and that, inasmuch as no other plan is available for the juvenile at that time, it was in the child's best interest that efforts be made toward placement of the juvenile with his father.

        12. After the court's order of November 7, 2003, and while the court's hearing on the new permanent plan for the juvenile was being delayed for causes not within the control of [Respondent] or the Department of Social Services, the Department attempted to arrange visitation between the juvenile and his father. However, on at least one occasion, [Respondent] refused to sign a visitation agreement proposed to him by the Department and, in the absence of a court order allowing him visitation, no visits occurred.

        13. Following the February 12, 2004 permanency planning hearing, the court ordered that the new plan for the juvenile be to reunify him with his father, and that [Respondent] would (a) have no further contact of any kind with . . . , the mother of the juvenile, (b) continue to take all medications prescribed by his psychiatrist, and follow through with all treatment recommended by his treating mental health professionals, (c) continue to execute all releases and waivers necessary to make records of his mental health treatment available to his attorney and the other parties herein, (d) obtain and maintain stable housing separate from his mother, . . . , and (e) maintain stable employment and continue to pay child support. The case was scheduled for another permanency planning hearing on May 27, 2004.

        14. On March 16, 2004, [Respondent] told the current social worker, Ms. Anthony, that he did not want to go through the process of being reunified with his son, and that he would sign the necessary paperwork to relinquish his parental rights. RELINQUISHMENT FOR ADOPTION forms were sent by the attorney for the Department to [Respondent]'s previous attorney, Ms. Crew on or about March 18, 2004, and the attorney discussed them with[Respondent ] shortly thereafter. [Respondent ] took the RELINQUISHMENT forms with him after meeting with Ms. Crew, but he never returned them to her or the Department. The former social worker, Ms. Anthony, left telephone messages for [Respondent ] on at least two separate occasions between mid-March and early May of 2004, but she received no return calls or messages from him. Ms. Anthony also attempted to see [Respondent ] at his mother's home on several other occasions, but a locked gate kept her from getting to the home. Ms. Anthony did reach [Respondent ] by telephone on May 11, 2004, at which time [Respondent ] told her that he had received the RELINQUISHMENT forms from his attorney but that he did not intend to sign them. However, [Respondent ] did say to Ms. Anthony on May 11, 2004: “I am still going to put my son up for adoption.”

        15. On May 27, 2004, [Respondent ] was not present in the courtroom when this case was called for a previously scheduled review hearing. Ms. Crew, [Respondent ] 's attorney at that time, informed the court that she had spoken with him on the telephone approximately a week before this hearing, and that he told her during that telephone conversation that he did plan to attend the review hearing. However, none of the other parties present in the courtroom or their attorneys had observed [Respondent ] in the courtroom at any time during the morning of court, and Ms. Crew had no explanation for [Respondent ] 's absence.

        16. At the May 27, 2004 review hearing, the court found that [Respondent ] had failed to comply with the court's order of February 12, 2004, in that he had continued to reside with his mother and that, because of his failure to communicate with the Department or his attorney, there was no evidence that he has otherwise complied with the order of February 12, 2004. The court further found that [Respondent ] only saw the juvenile a few times between June and October of 2002, when the child was between 4 and 8 months old and that, as [Respondent ] himself observed to Ms. Anthony on March 16, 2004, the child and his father did not know each other. The court therefore changed the plan for the juvenile to adoption and ordered that the Department ofSocial Services begin termination of parental rights proceedings.

        17. [Respondent ] continued his relationship, at least intermittently, with the mother of the juvenile, . . . , even after [the mother]'s parental rights had been terminated on November 7, 2003. Specifically, both [Respondent ] and [the mother] caused criminal warrants to be issued against each other on or about March 20, 2004, as a result of a physical altercation between them.

        18. The mother of the child neglected the child as defined in N.C.G.S. 7B-101(15) before the court's adjudication order of April 11, 2002. The father of the juvenile then neglected the juvenile after he was given the opportunity, beginning in November of 2003, to work toward receiving visitation with, and, potentially, custody of, the child. In light of his failure to comply with the court's order of February 12, 2004, and his statements, on at least two (2) occasions that he intended to release the child for adoption, there is therefore a reasonable probability of the repetition that [Respondent ] 's neglect of the child would continue or re-occur, if the child were to be placed into the custody of his father.

        19. The juvenile is currently residing in a licensed foster home, and his foster mother wishes to adopt him. Both the Department of Social Services and the Guardian ad litem approve of the foster parent as a potential adoptive parent. The father of the juvenile has never bonded with the juvenile. In his own testimony, [Respondent ] requested that, because he felt that he had not been treated fairly by the court or the Department of Social Services in this matter, he be allowed to visit with the child a few times before he was required to release the child for adoption; but he also testified that he knew that he was not bonded with the child, and that he would “probably” place the child for adoption.

Respondent excepted to only finding number eighteen; thus, theremaining findings, are presumed to be correct and supported by the evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982), appeal dismissed, 459 U.S. 1139, 74 L. Ed. 2d 987 (1983).
     A review of the record and transcript shows the trial court's findings are based upon orders entered in the case and testimony from DSS Lucille Anthony and Respondent. In this case, the trial court's findings reflect that Respondent's paternity was not established until after the minor child was placed in the custody of DSS and was therefore unable to be part of the child's life prior to that time. Apart from this situation, which was beyond Respondent's control, the undisputed findings of the trial court clearly show that Respondent did not seek personal contact with or attempt to convey love and affection for the minor child. See N.C. Gen. Stat. § 7B-101(15). Respondent failed to sign a visitation agreement so that he could visit with the minor child. Respondent told DSS worker that he did not want to reunify with the minor child. In fact, Respondent testified at the hearing that he would be willing to sign the relinquishment of parental rights papers if he could see his son. Furthermore, Respondent had continued his relationship with the mother of the child even after the mother's parental rights were terminated. As such, there were sufficient findings to support a conclusion of neglect under the statute. Accordingly, the order of the trial court is affirmed.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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