IN THE MATTER OF:
D.G.D., Forsyth County
a minor child. No. 02 J 243
Theresa A. Boucher, for Forsyth County Department of Social
Services, petitioner-appellee.
Womble Carlyle Sandridge & Rice, by Murray C. Greason, III;
and Stuart L. Teeter, for guardian ad litem.
Duncan B. McCormick, for respondent-appellant.
WYNN, Judge.
A court may terminate parental rights on the ground that
“[t]he parent has willfully left the juvenile in foster care or
placement outside the home for more than 12 months without showing
to the satisfaction of the court that reasonable progress under the
circumstances has been made in correcting those conditions which
led to the removal of the juvenile.” N.C. Gen. Stat. § 7B-
1111(a)(2) (2005). As the findings of fact support the trial
court's conclusion of law that Respondent willfully left the child
in foster care for twelve months without making reasonable
progress, we affirm the trial court's order.
On 17 July 2002, the Forsyth County Department of SocialServices filed a petition to terminate the parental rights of
Respondent, the putative father of a child, D.G.D., born out of
wedlock. As grounds for terminating Respondent's parental rights,
petitioner asserted (1) Respondent willfully left the child in
foster care or placement out of the home for more than twelve
months without showing that reasonable progress has been made in
correcting the conditions which led to the removal of the child;
(2) Respondent failed to establish paternity of the child,
legitimate the child, or provide substantial financial support or
care of the child; and (3) Respondent willfully abandoned the
child. The court entered an order terminating the mother's
parental rights to the child on 21 March 2003. After several
continuances, the court conducted an evidentiary hearing on 28
February 2005 and 2 March 2005, on the petition to terminate
Respondent's rights. At the conclusion of the hearing, the court
entered an order concluding that Petitioner established all three
grounds by clear, cogent and convincing evidence and that
termination of Respondent's parental rights is in the best interest
of the child. From this order Respondent appeals.
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A proceeding to terminate parental rights consists of two
separate phases: an adjudicatory stage and a dispositional stage.
In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984).
During the adjudicatory stage, the petitioner must prove by clear,
cogent, and convincing evidence the existence of at least one of
the statutory grounds for termination. In re Young, 346 N.C. 244,247, 485 S.E.2d 612, 614 (1997). The appellate court reviews the
trial court's findings of fact to determine whether they are
supported by “clear, cogent, and convincing evidence” and whether
the findings support the trial court's conclusions of law. In re
Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal
dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9
(2001). Upon finding proof of at least one ground for termination,
the trial court proceeds to the dispositional phase and considers
whether termination of parental rights is in the best interests of
the child. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 908 (2001). Appellate review of the trial court's
dispositional decision is for abuse of discretion. In re Anderson,
151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). If this Court
can determine that the trial court has validly found at least one
ground to terminate parental rights, then it is not necessary for
this Court to consider the remaining grounds. In re Stewart
Children, 82 N.C. App. 651, 655, 347 S.E.2d 495, 498 (1986).
Respondent makes three arguments on appeal: (1) the trial
court's conclusion that Respondent abandoned his child is not
supported by the findings of fact or the evidence; (2) the trial
court's conclusion that Respondent willfully left his child in
foster care for more than twelve months is not supported by the
findings of fact or clear, cogent and convincing evidence; and (3)
the trial court's conclusion that Respondent had not established
paternity is not supported by the findings and is contradicted by
other juvenile orders finding Respondent is the father of thechild.
We first address Respondent's contention challenging the trial
court's conclusion that Respondent willfully left his child in
foster care for more than twelve months without making reasonable
progress in correcting the conditions that led to the child's
placement in foster care. A court may terminate parental rights on
the ground “[t]he parent has willfully left the juvenile in foster
care or placement outside the home for more than 12 months without
showing to the satisfaction of the court that reasonable progress
under the circumstances has been made in correcting those
conditions which led to the removal of the juvenile.” N.C. Gen.
Stat. § 7B-1111(a)(2). The twelve-month period under the present
version of section 7B-1111(a)(2) of the North Carolina General
Statutes is not limited to the twelve months immediately preceding
the filing of the petition. In re Pierce, 356 N.C. 68, 75, fn.1,
565 S.E.2d 81, 86, fn.1 (2002). The willful leaving of the child
is “something less than willful abandonment” and “does not require
a showing of fault by the parent.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 398 (1996). A finding of this
ground may be made when the parent has made some attempt to regain
custody of the child but has failed to show reasonable and positive
progress has been made in this effort. In re Nolen, 117 N.C. App.
693, 700, 453 S.E.2d 220, 225 (1995).
We find clear, cogent and convincing evidence in the record to
support the trial court's findings of fact. These findings of fact
show that the child was placed in the custody of the Forsyth CountyDepartment of Social Services (D.S.S.) on 29 June 2001, upon an
adjudication of dependency. Respondent was arrested in November
2001, was convicted of armed robbery in April 2002, and was
sentenced to fifty months in prison. He was incarcerated
continuously from November 2001 until 27 October 2004. Respondent
was not present for the birth of the child because he was
incarcerated serving sentences for convictions of breaking or
entering.
At Respondent's request in August of 2003, the court permitted
Respondent to seek reunification with the child on condition that
Respondent comply with the following four conditions: (1) attend
and complete parenting classes; (2) obtain a parenting capacity
evaluation and follow all recommendations; (3) obtain a substance
abuse assessment and complete any recommended treatment; and (4)
write letters to the child at least twice per week. The court also
obtained Respondent's transfer to Forsyth Correctional in order for
Respondent to be nearer to the child. However, three months later,
Respondent tested positive for the presence of marijuana, thereby
resulting in his transfer to another correctional facility.
Respondent acknowledged that he did not write two letters per
week to the child. DSS reported receiving only three letters from
Respondent dated 30 September 2003, 10 November 2003 and 17
November 2003. Respondent further acknowledged that after he was
transferred from the Forsyth Correctional Institution, he failed
another drug test in February 2004. He acknowledged that he used
marijuana while incarcerated. Respondent did not complete parenting classes. He did not
obtain the parenting capacity evaluation and substance abuse
assessment ordered by the court. Respondent failed to remember his
child through cards, gifts or letters on Christmas, his birthday or
other significant holidays in the years 2001, 2003 and 2004.
Respondent did send the child a Christmas gift in 2002 but failed
to acknowledge the child's birthday that year.
After his release from prison in 2004, Respondent obtained a
job paying nine dollars per hour, working forty or more hours per
week. Respondent paid nothing out of those earnings toward the
support of the child. Although Respondent expressed a desire at
the hearing to have wages withheld for the support of the child, he
had done nothing to cause it to happen as of the time of the
termination of parental rights hearing. Further, after his release
from prison in October 2004, Respondent has not visited the child
and has not mailed any letters or sent any gifts to the child.
A dependent juvenile is one who “has no parent . . .
responsible for the juvenile's care or supervision” or whose parent
“is unable to provide for the care or supervision” of the juvenile.
N.C. Gen. Stat. § 7B-101(9) (2005). The foregoing findings show
that Respondent has not been a responsible parent and has not made
reasonable progress in becoming a responsible parent. Respondent
has not been able due to his repeated incarcerations and prison
infractions to provide for the care and supervision of the child,
who has special needs.
We hold the findings support the trial court's conclusion thatRespondent willfully left the child in foster care for twelve
months without making reasonable progress in correcting the
conditions which led to the placement of the child in foster care.
As a finding of only one ground is required to terminate rights, it
is not necessary for us to consider the remaining grounds. In re
B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
The order terminating Respondent's parental rights is,
Affirmed.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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