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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN RE: R.R., a minor child, NEW HANOVER COUNTY DEPARTMENT OF
SOCIAL SERVICES, Petitioner, v. B.F., Respondent
Filed: 19 December 2006
1. Termination of Parental Rights_grounds_inquiry into paternity
A single ground is all that is required for termination of parental rights, and the trial court
here did not err by not making further inquiry into paternity after respondent (who had married
the child's mother) refused a paternity test. There were sufficient grounds for termination
regardless of paternity.
2. Termination of Parental Rights_abandonment_sufficiency of evidence
There was clear, cogent, and convincing evidence supporting termination of parental
rights on the ground of willful abandonment where there was evidence that respondent had seen
the three-year-old child, at most, immediately after her birth. Although respondent argues that he
was not given the opportunity to participate in the child's life, and he did attempt to legitimize
the child, the execution of legal formalities does not replace the presence love and care from a
parent, delivered by whatever means available.
3. Termination of Parental Rights_termination in best interest of child_no abuse of
The trial court did not abuse its discretion by terminating respondent's parental rights
where the child had been in foster care since birth, she had never met her mother or respondent,
her foster parents were prepared to adopt immediately, respondent and the mother have an
intermittent relationship, and if placed in respondent's care, the child would live with her mother,
who has been determined to be an unfit parent.
4. Appeal and Error_burden of proof at termination of parental rights hearing_not
included in assignment of error
The issue of whether the trial court used the correct burden of proof in a termination of
parental rights hearing was deemed waived because it was not included in the assignments of
5. Termination of Parental Rights_findings of fact_sufficiency
The findings in a termination of parental rights hearing were sufficient where they were
adequately supported by testimony given during the proceeding. Requirements for permanency
planning hearings are distinguished.
6. Termination of Parental Rights_attorney not appointed_inaction by respondent
The trial court did not err by not appointing counsel for respondent at a termination of
parental rights hearing where respondent did not follow the plain instructions on the summons
and petition, for which he had signed nearly three months before the court date.
7. Termination of Parental Rights_delay between petition and hearing_no prejudice
There was no prejudice from a delay between a termination of parental rights petition and
the hearing where respondent alleged that he was deprived of the chance to be a father during that
period, but there was no record of communication during that time between respondent and
Social Services (the child was in foster care) about the well-being of the child or the status of
Appeal by B.F., respondent, from judgment entered 23 May 2005
by Judge Phyllis M. Gorham in New Hanover County District Court.
Heard in the Court of Appeals 18 September 2006.
Dean W. Hollandsworth, attorney for petitioner-appellee.
Lisa Skinner Lefler, attorney for respondent-appellant.
Regina Floyd-Davis, attorney for guardian ad litem-appellant.
Respondent B.F. appeals the district court's order terminating
his parental rights as the father of R.R. After careful review, we
affirm the order of the trial court.
The child, R.R., was born on 16 November 2002, at which time
both she and her mother, H.R., tested positive for cocaine. H.R.
admitted to freebasing cocaine for a few days prior to going into
labor and delivering R.R. The child has been in the legal and
physical custody of petitioner, New Hanover County Department of
Social Services, since 18 November 2002. The mother stated that
the child resulted from being pregnant after a sexual assault by an
unknown man whose identity has never been established.
After R.R.'s birth, the mother left the state and made no
contact with petitioner, no response to correspondence efforts from
petitioner, no effort to regain custody of her daughter, and noinquiry as to her daughter's well being. On 10 July 2003, the
district court ordered that the permanent plan be changed from
reunification with the mother to adoption. In its July, 2003
order, the district court stated that B.F., H.R.'s significant
other, had contacted petitioner to assert his possible paternity
of the child, requesting a paternity test. Petitioner encouraged
him to re-contact the social worker when he moved to the Durham
area and had secured housing. He was instructed at that time that
once he could provide a stable address, he could be served for
Court. The trial court did not hear from B.F. again prior to
issuing its order.
By 13 November 2003, the date of a periodic review before the
district court, R.R.'s birth certificate had been amended to
include B.F. as the named father. Apparently this amendment was
made with the mother's cooperation. B.F. had met with the mother
and R.R.'s social worker while the mother was incarcerated and
stated that he wanted to have a paternity test to determine whether
he was R.R.'s father, but that he could not afford to pay for the
test himself. As a result of this statement, the district court
judge ordered B.F. to undergo a paternity test paid for by
By the next hearing on 29 January 2004, B.F. and H.R. were
married and living together in Tennessee. B.F. had not taken the
the paternity test. The district court judge found that he had
told a social worker outside of the courthouse that he did not
intend to complete the testing if he was not given a courtappointed attorney and that he had not been in contact with the
Department [of Social Services] since leaving the last court
hearing without obtaining paternity testing. The court ordered
B.F. to take a paternity test if he desire[d] to participate in
On 14 July 2004, petitioner filed a Petition for Termination
of Parental Rights pursuant to North Carolina General Statute
section 7B-1100, which was granted on 23 May 2005. It is from this
order that respondent appeals. The district court's findings, in
relevant part, include:
4. The Court finds as a fact that Bradley F.
is most likely not the father of this child
due to the fact that he is Caucasian and the
child is bi-racial. He failed and refused to
submit to a paternity test when ordered
previously to do so and this circumstance
leads the Court to find that he fears the
result of this test will disprove his
assertion of paternity.
5. The Respondent-Parents have neglected the
child within the meaning of G.S. § 7B-101 due
to the fact that the Respondent-Mother and
child both tested positive for cocaine at the
time of the child's birth. . . . The
purported biological father, Bradley F.,
refused to comply with the Court Order of
November 13, 2003 to submit to paternity
testing. The unknown father, whom the
Respondent-Mother stated was a man who
sexually assaulted her, has never had any
contact with the child. In light of the
Respondent-Parents' lack of compliance with
any Court Orders and family services case
plans during the history of this matter, the
likelihood of repetition of neglect is strong.
6. The Respondent-Parents have willfully, and
not due solely to poverty, left the child in
foster care for more than twelve months
without showing to the satisfaction of the
Court that reasonable progress under thecircumstances was made to correct the
conditions which led to the child's removal.
None of the Respondent-Parents have complied
with any Court Orders or family services case
plans which would be necessary to establish
reasonable progress in obtaining substance
abuse treatment, parenting classes and mental
health treatment. None of the Respondent-
Parents have seen the child since shortly
after birth, nor participated in any of the
activities needed to establish a safe home for
7. The Respondent-Parents have willfully
failed to pay any amount toward the reasonable
cost of care of the child for a period
exceeding six continuous months prior to the
filing of the Petition. The Respondent-
Parents have been physically and financially
able to do so except for any period of
. . .
9. The Respondent-Parents have willfully
abandoned the child for at least six
consecutive months immediately prior to the
filing of the petition. None of the
Respondent-Parents has seen or visited with
the child since her removal on November 18,
2002, shortly after her birth on November 16,
2002. . . . The purported biological father,
Bradley F., refused paternity testing and has
never seen the child. . . . These
circumstances lead the Court to find that a
willful abandonment of this child by the
Respondent-Parents is evident.
The district court terminated respondent's parental rights on
the grounds of neglect, N.C. Gen. Stat. § 7B-1111(a)(1) (2005),
willfully abandoning the child for at least six consecutive months
immediately preceding the filing of the petition, N.C. Gen. Stat.
§ 7B-1111(a)(7) (2005), and willfully leaving the child in foster
care for more than twelve months without showing to the
satisfaction of the court that reasonable progress under thecircumstances has been made in correcting those conditions which
led to the child's removal, N.C. Gen. Stat. § 7B-1111(a)(2) (2005).
Respondent appealed the order terminating his parental rights
citing the following errors: (I)
the trial court failed to make
proper inquiry and findings of fact concerning B.F.'s paternity of
the trial court made findings of fact not supported
by the evidence that grounds existed to terminate the father's
, that the evidence did not support a finding that the best
interests of the child were served by terminating respondent's
parental rights and the written order reflecting that the trial
court made all the proper findings and conclusions was in error;
the trial court failed to appoint counsel to respondent
the trial court lacked jurisdiction to hear this termination
proceeding because of failure to comply with statutorily mandated
 Respondent first contends that the trial court erred by
not making further inquiry into the status of his paternity. The
court ordered respondent to take a paternity test, which he
refused. Respondent instead married the mother, intending to meet
the statutory requirements of legitimation by subsequent marriage.
N.C. Gen. Stat. § 49-12 (2005). The statute provides that [w]hen
the mother of any child born out of wedlock and the reputed father
of such child shall intermarry the child shall be deemed to be the
product of the mother and reputed father. Id. While we
acknowledge that respondent has met the statutory requirements forlegitimation, such legitimacy is not at issue here. The Petition
for Termination of Parental Rights does not allege that that
respondent failed to establish paternity, nor does the Order on
Termination of Parental Rights rely on the lack of paternity as
grounds for termination. The termination order does state that
[t]he unknown father has taken none of the statutorily mandated
steps to establish paternity or legitimize the child prior to the
filing of the petition, but is clearly not referring to respondent
because he is listed separately from the unknown father in the
definition of Respondent-Parents. Regardless, this failure to
establish paternity is listed as the fifth grounds for termination
of parental rights. A single ground for termination is all that is
required for proper termination. In re B.S.D.S., 163 N.C. App.
540, 546, 594 S.E.2d 89, 93-94 (2004). The trial court rightly
determined that, regardless of paternity, there were sufficient
ground to terminate the parental rights of H.R., B.R., and the
unknown father. As respondent's possible paternity did not
constitute a grounds for termination, the trial court committed no
reversible error by making no further inquiry.
In a termination of parental rights case, the standard of
review is a two-part process: (1) the adjudication phase, governed
by North Carolina General Statute section 7B-1109; and (2) the
disposition phase, governed by North Carolina General Statute
section 7B-1110. Whittington v. Hendren (In re Hendren), 156 N.C.
App. 364, 366, 576 S.E.2d 372, 375 (2003). During the adjudicationphase, petitioner must prove by clear, cogent, and convincing
evidence that one or more of the statutory grounds set forth in
section 7B-1111 for termination exists. N.C. Gen. Stat. § 7B-
1109(e)-(f); In re Hendren, 156 N.C. App. at 366-67, 576 S.E.2d at
375. This court must now determine whether the trial court's
findings are supported by clear, cogent and convincing evidence
and, if so, whether the findings support the conclusions of law.
In re Hendren, 156 N.C. App. at 367, 576 S.E.2d at 375. We find
that they do and they are.
In his second assignment of error, respondent cites at least
seven problems with the court's findings, which, for ease of
discussion we will condense into four sub-issues: (1) did
petitioner present clear, cogent, and convincing evidence
supporting at least one ground for termination of parental rights;
(2) did the trial court abuse its discretion in its determination
that terminating B.F.'s parental rights was in the child's best
interest; (3) did the trial court fail to state the proper burden
of proof and make the findings of fact set out in the written
order; and (4) did the trial court fail to make findings of fact
found in the termination order.
 First, petitioner presented clear, cogent, and convincing
evidence supporting several grounds for termination of parental
rights. As only one ground is necessary for termination of
parental rights, we focus on respondent's wilful abandonment of the
child. Although the statute requires only that respondent wilfully
abandoned the child for six months prior to the adjudication,petitioner testified that respondent had, at most, only seen the
child immediately after her birth. At the time of the termination
proceeding, the child was nearly three years old. Although
respondent appears to argue that he did not willfully abandon the
child because he was not given the opportunity to participate in
the child's life, this court has held that [a]lthough his options
for showing affection [were] greatly limited, the respondent will
not be excused from showing interest in the child's welfare by
whatever means available. Id. at 368
, 576 S.E.2d at 376
again acknowledge that respondent did attempt to legitimize the
child through marriage and amendment of the child's birth
certificate, but execution of these legal formalities does not
adequately replace the presence, love and care of a
parent_delivered by whatever means available.
 Second, the trial court did not abuse its discretion by
terminating respondent's parental rights. It is within the
district court's discretion to terminate parental rights upon a
finding that it would be in the best interest of the child. In re
Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). The
district court's decision to terminate parental rights is reviewed
under an abuse of discretion standard. In re Nesbitt, 147 N.C.
App. 349, 352, 555 S.E.2d 659, 662 (2001). Here, the district
court determined that it was in the child's best interest to
terminate respondent's parental rights, and given the
circumstances, we cannot find that the district court abused its
discretion. The child has been in foster care since birth and isnow four years old. She has never met her mother or respondent,
and her foster parents are prepared to adopt her immediately
following adjudication of this case. Respondent and the mother
appear to have, at best, an on again off again relationship,
which cannot offer stability to the child. Indeed, if the child
were given over to respondent's care, she would live with her birth
mother, who has also been determined to be an unfit parent. The
district court found, and we agree, that it is in the child's best
interest to have respondent's parental rights terminated and her
permanent plan changed to adoption.
 Third, respondent claims that the trial court failed to
state the proper burden of proof by stating that it had found
sufficient evidence to terminate respondent's parental rights,
rather than clear and convincing evidence as required by North
Carolina General Statute section 7B-1111. This Court would
disagree with respondent, but need not reach that conclusion
because respondent did not preserve this issue for appeal by
including it in his assignments of error. This issue is deemed
waived in accordance with Rule 10(a) of the North Carolina Rules of
 Fourth, respondent contends the trial court failed to make
findings of fact found in the termination order and instead merely
recit[ed] allegations made in the petition. Respondent relies on
In re Harton, 156 N.C. App. 655, 577 S.E.2d 334 (2003), arguing
that this case requires the trial court to find the ultimate
facts upon which the court's conclusions rely. Again, we mustdisagree with respondent. Harton relates to findings of fact in
permanency planning hearings, not termination of parental rights
hearings. Id. at 660, 577 S.E.2d at 337. We have held there is
no requirement . . . that the court orally state 'with
particularity' the exact terms of disposition so long as there is
valid evidence in the record to support such findings of fact. In
re Brim, 139 N.C. App. 733,739, 535 S.E.2d 367, 370 (2000). Here,
the findings of fact in the termination order are adequately
supported by testimony given during the termination proceeding.
 Respondent argues the trial court committed reversible
error when it did not appoint counsel for him. We hold the trial
court committed no such error, and respondent's unfortunate lack of
counsel is the result of his own failure to follow the plain
instructions that appeared on the summons and petition, for which
respondent personally signed nearly three months before the court
The Summons In Proceeding for Termination of Parental Rights
You have a right to be represented by a lawyer
in this case. If you want a lawyer and cannot
afford one, the Court will appoint a lawyer
for you. You may contact the Clerk of
Superior Court immediately to ask for a court
The summons also states, If you do not file a written answer to
the attached petition with the Clerk of Superior Court within
thirty (30) days, the Court may terminate your parental rights.
Respondent neither contacted the clerk to obtain counsel nor fileda written answer to the petition. Instead, respondent faxed a
letter to petitioner requesting a continuance because he had not
yet submitted the affidavit of indigency and could not appear at
the hearing on the assigned date.
It is well established that a parent has the right to counsel
and to appointed counsel in cases of indigency unless the parent
waives the right. N.C. Gen. Stat. § 7B-1101. [T]he General
Assembly did not intend to allow for waiver of court appointed
counsel due to inaction prior to the hearing. . . . [I]f the
parent is present at the hearing . . . and does not waive
representation, counsel shall be appointed. Little v. Little, 127
N.C. App. 191, 192-93 487 S.E.2d 823, 825 (1997) (internal
quotations omitted). Respondent's situation cannot fit within the
broad limits of Little because respondent simply was not present at
court. His inaction prior to the hearing and his failure to appear
at the hearing constitute a waiver of his right to counsel, and the
trial court made no error by not appointing counsel to him.
 In his fourth and final argument, respondent contends the
termination order should be reversed because of the delay between
petitioner's issuance of the petition to terminate on 29 July 2004
and the termination hearing on 25 April 2005. North Carolina
General Statutes section 7B-1109(a) requires that the termination
hearing be conducted no later than 90 days from the filing of the
petition or motion unless the judge . . . orders that it be held at
a later time. In addition to showing that the trial court failedto meet the timeliness requirement of the statute, respondent must
show that he was prejudiced by that delay. In re S.W.
, __ N.C.
App. __, 625 S.E.2d 594, 596 (2006). This court has held that
delays of this nature do not warrant reversal where there is ample
evidence on multiple grounds to terminate respondent's rights.
See In re D.J.D., D.M.D., S.J.D., J.M.D.
, 171 N.C. App. 230, 244,
615 S.E.2d 26, 35 (2005) (referring to an additional delay of 44
days by the trial court, followed by a delay of 68 days requested
Respondent is correct that the hearing in this matter did not
comply with the statute, and that the delay is well in excess of
the 90 day requirement. However, respondent fails to establish
that this delay rises to the level of prejudicial delay.
Respondent refers to his deprivation of any chance at being a
father to his daughter until the trial court heard the case. It
appears that when the petition was issued, the address for
respondent that petitioner had on file was not the address at which
he could be located. Petitioner states that the long delay was the
result of petitioner's inability to serve process on respondent and
the mother. Indeed, petitioner eventually issued notice by
publication to the mother and unknown father. Regardless of the
reason, there is no record of communication between respondent and
petitioner regarding the well being of the child or the status of
respondent's paternity during the time period between issuance of
the petition and the termination hearing. It is this lack ofcommunication that leads this Court to believe that respondent was
not prejudiced by the delay.
For the foregoing reasons, we hold that the trial court did
not err in terminating respondent's parental rights.
Chief Judge MARTIN and Judge JACKSON concur.
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