An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1192


Filed: 18 April 2006

In the Matter of:
                            Guilford County    
                            No. 02 J 762                         

    Appeal by respondent from an order entered 25 August 2004 by Judge Teresa H. Vincent in Guilford County District Court. Heard in the Court of Appeals 8 March 2006.

    James A. Dickens, Assistant County Attorney, for petitioner- appellee Guilford County Department of Social Services.

    Rebekah W. Davis for respondent-appellant.

    BRYANT, Judge.

    Respondent father appeals from an order entered 25 August 2004 terminating parental rights of his minor child, K.J.   (See footnote 1)  , born 4 August 2001.
    On 19 November 2002, the Guilford County Department of Social Services (DSS) filed a petition alleging K.J. and his two siblings were neglected. The petition alleged that on 5 November 2002 K.J.'s mother left one of the juveniles in her stepfather's convenience store parking lot, and the mother did not return to retrieve the child when asked to do so by the stepfather two days later. The petition also stated that K.J.'s mother argued with her boyfriend and left K.J. and his sister with the boyfriend withoutplanning for their care. K.J. and his siblings were placed in the non-secure custody of DSS on 18 November 2002. On 20 December 2002 at a hearing on the petition for neglect, K.J.'s mother stipulated to a finding of neglect based on the findings in the petition. A November 2002 paternity test showed the boyfriend was not K.J.'s biological father and thus the trial court found the boyfriend was not K.J.'s father. However, the trial court found that K.J.'s mother identified respondent as the child's biological father.
    On 21 July 2003 DSS filed a petition to terminate respondent father's parental rights. On 4 August 2003 respondent father filed a letter with the clerk of court stating he had been waiting for a paternity test since February 2003 and he offered his mother as a possible placement for K.J. On 17 October 2003 a paternity test confirmed respondent was K.J.'s father.
    On 16 April 2004 a hearing was held on the petition to terminate parental rights. The trial court entered an order of termination as to K.J.'s mother because K.J.'s mother formally relinquished her parental rights as to K.J. and his two siblings. The trial court continued respondent's termination hearing because his attorney requested additional time to prepare.
    On 27 July 2004 the termination hearing was conducted. Ronda Teal (Teal) a caseworker for Guilford County DSS testified that although respondent father was incarcerated in a federal prison for trafficking cocaine at the time of the filing of the 18 November petition for neglect, he had not established paternity of K.J., notwithstanding that he was incarcerated. The trial court foundthat: respondent father had not legitimated the child by marrying K.J.'s mother, nor had he provided substantial financial support or consistent care to K.J. prior to the filing of the 18 November petition; throughout respondent's incarceration, DSS sent him monthly correspondence regarding K.J. and that respondent did not call or write to inquire about K.J.'s well being; respondent made no effort to establish a relationship with K.J. through visits, calls, pictures, cards or letters; respondent wrote a total of four letters to DSS to (1) request a paternity test, (2) request an attorney to respond to allegations in the petition to terminate his parental rights and offer his mother as a possible placement for K.J., (3) inquire about K.J.'s siblings and again request a paternity test, and (4) request DSS to send information to his attorney. Respondent's mother was approved as a potential placement, only if the maternal grandparents were unable to take K.J.
    On 6 February 2004 K.J. was placed with his two siblings in the home of the maternal grandparents. Teal testified the placement was successful and the maternal grandparents agreed to adopt him. The trial court entered an order to terminate respondent's parental rights on 26 August 2004 pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1)(neglect); 7B-1111(a)(2)(failure to make reasonable progress); 7B-1111(a)(5)(failure to establish paternity of child born out of wedlock); 7B-1111(a)(6)(incapable of providing for the proper care and supervision of K.J.); and 7B- 1111(a)(7)(willful abandonment). Respondent appeals.


    On appeal respondent argues the trial court erred in: (I) making findings of fact (numbers 4A, 4E, 4F, 4G, and 4H) because they are conclusions of law; (II) finding and concluding respondent neglected K.J.; (III) finding respondent failed to make reasonable progress in correcting the conditions which led to the removal of K.J.; (IV) concluding respondent did not establish paternity, legitimate or provide K.J. with substantial financial support or consistent care; (V) concluding defendant's incapability to provide for K.J.'s proper care and supervision will continue for the foreseeable future; (VI) concluding respondent willfully abandoned K.J. for at least six months consecutive immediately preceding the filing of the termination of parental rights (TPR) petition; and (VII) concluding TPR was in the best interests of K.J.

    Respondent first argues generally that the trial court's findings of fact (4A, 4E, 4F, 4G, and 4H) are conclusions of law, and are not proper findings of fact. We reject this broad contention, as each of the findings includes a specific statement of facts upon which the rights of the parties may be determined in light of the testimony and evidence presented. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) requires the trial court to make a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test thecorrectness of the judgment. Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982).
    More specifically however, respondent assigns error to the trial court's findings and conclusions as to each of the five grounds for terminating his parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a): neglect; failure to make reasonable progress; failure to establish paternity of K.J.; incapable of providing for the proper care and supervision of K.J.; and willful abandonment. Because the record before us supports the trial court's determination of neglect, we decline to address respondent's remaining arguments regarding the statutory grounds for termination of parental rights. N.C. Gen. Stat. § 7B-1111(a); See In re Shermer, 156 N.C. App. 281, 284, 576 S.E.2d 403, 406 (2003); see also In re Clark, 159 N.C. App. 75, 78 n.3, 582 S.E.2d 657, 659 n.3 (2003) (where the trial court finds multiple grounds on which to base a termination of parental rights, and “an appellate court determines there is at least one ground to support a conclusion that parental rights should be terminated, it is unnecessary to address the remaining grounds.”) (citation omitted).
    “On appeal, the standard of review from a trial court's decision in a parental termination case is whether there existed clear, cogent, and convincing evidence of the existence of grounds to terminate respondent's parental rights.” In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996). The trial court's findings in this regard are binding on appeal “even though there may be evidence to the contrary.” In re Williamson, 91 N.C.App. 668, 674, 373 S.E.2d 317, 320 (1988) (citation omitted). “It is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted).
    “The key to a valid termination of parental rights on neglect grounds where a prior adjudication of neglect is considered is that the court must make an independent determination of whether neglect authorizing the termination of parental rights existed at the time of the hearing.” In re McDonald, 72 N.C. App. 234, 241, 324 S.E.2d 847, 851 (1985) (citation omitted). Where “a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect[,] . . . because requiring the petitioner in such circumstances to show that the child is currently neglected by the parent would make termination of parental rights impossible.” In re Pierce, 146 N.C. App. 641, 651, 554 S.E.2d 25, 31 (2001). “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding.In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). A parent's incarceration may be considered in determining whether a minor child is in a state of neglect due to that parent's inability to provide proper care and supervision for the child. See In re P.L.P., ___ N.C. App. ___, ___, 618S.E.2d 241, 247 (2005) (trial court found incarcerated father neglected his child where that father “(1) could have written [the child] but did not do so; (2) made no efforts to provide anything for the minor child; (3) has not provided any love, nurturing or support for the minor child; and (4) would continue to neglect the minor child if the child was placed in his care.”). The trial court properly considered the adjudications of neglect as to K.J.'s mother's two prior substantiated reports of neglect due to inappropriate discipline and lack of supervision. A trial court may consider prior adjudications of neglect and incarceration when determining whether a child is neglected under N.C. Gen. Stat. § 7B-1111(a)(1); See In re Beasly, 147 N.C. App. 399, 405, 555 S.E.2d 643, 648 (2001) and In re Williams, 149 N.C. App. 951, 961, 563 S.E.2d 202, 207 (2002).
    As to respondent's claim that he was unable to discover the paternity of or provide for the welfare of K.J. while incarcerated, this Court rejects respondent's argument:
        This Court in Clark . . .held . . . the illegitimate child's future welfare [is not] dependent on whether or not the putative father knows of the child's existence at the time the petition is filed. [In re Clark, 95 N.C. App. 1, 8, 381 S.E.2d 835, 839 (1989), rev'd on other grounds, 327 N.C. 61, 393 S.E.2d 791 (1990).] The Court reasoned that while the Legislature could have reasonably set the bar date at another point in time, it is certainly not unreasonable to charge putative fathers with the responsibility to discover the birth of their illegitimate children. Id. at 9, 381 S.E.2d at 840. We point out that the putative father in Clark was never informed that the mother was pregnant and did not learn that she had givenbirth until after an adoption order had been entered.

In re T.L.B., 167 N.C. App. 298, 301, 605 S.E.2d 249, 252 (2004) (quotations omitted).
    The trial court found that while K.J. was in DSS custody, respondent did not request visitation with K.J., ask to see photos, enroll in parenting classes or ask about K.J.'s well being. Respondent's mother was set up as conditional placement, in the event the maternal grandparents were unwilling to care for K.J. Respondent made no effort to establish a relationship with K.J. or have any contact with K.J. The trial court's finding that K.J. was neglected at the termination hearing was supported by clear, cogent and convincing evidence. This assignment of error is overruled.

    Respondent next argues the trial court abused its discretion in terminating respondent's parental rights. We disagree.
    “Once the petitioner has proven th[e] ground [for termination] by this standard, it has met its burden within the statutory scheme[.] . . . [T]he court then moves on to the disposition stage, where the court's decision to terminate parental rights is discretionary.” In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). At the dispositional stage, “the best interests of the child are considered [and] the court shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise.” In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001); see also N.C.G.S. § 7B-1110(a). A court may decline to terminateparental rights only “where there is reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child.” Id. at 613, 543 S.E.2d at 910.
    After careful and thorough review of the record, we find no evidence respondent had a relationship with K.J. prior to the filing of the termination petition. Respondent attempted to obtain a paternity test and offered his mother as a placement alternative for K.J. However, even after receiving monthly updates from DSS as to the status of K.J., respondent did not attempt to call, write or inquire about K.J.'s well being, much less form an emotional relationship with K.J. See In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (the respondent was incarcerated but also did nothing to emotionally or financially support and benefit his children), aff'd, 357 N.C. 568, 597 S.E.2d 674 (2003); see also, In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002) (a father's parental rights terminated because he was incarcerated and he failed to show filial affection for his child). The trial court did not abuse its discretion in considering K.J.'s best interests and terminating respondent's parental rights. This assignment of error is overruled.
    Judges HUNTER and HUDSON concur.
    Report per Rule 30(e).

Footnote: 1
    Initials are used throughout to protect the identity of the juvenile.

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