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.
Respondent father appeals from an order entered 25 August 2004
terminating parental rights of his minor child, K.J.
(See footnote 1)
, born 4
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
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
, 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
, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000)
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
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
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
In re T.L.B.
, 167 N.C. App. 298, 301, 605 S.E.2d 249, 252 (2004)
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
, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001); see
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
, 357 N.C. 568, 597 S.E.2d 674 (2003); see also
, 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).