An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-34


Filed: 18 July 2006


A.M.P. and Y.B.G.                        Wake County
                                    No. 05 J 96

    On a writ of certiorari from order entered 3 August 2005 by Judge Monica Bousman in the District Court in Wake County. Heard in the Court of Appeals 10 July 2006.

    Wake County Attorney's Office, by Corinne G. Russell, for Wake County Human Services, petitioner-appellee.

    Wake County GAL Program, by Richard Croutharmel, for guardian- ad-litem.

    Susan J. Hall, for respondent-appellant.

    HUDSON, Judge.

    Respondent, who is the putative father of the minor child Y.B.G.   (See footnote 1)  , appeals from an order terminating his parental rights to the child on the ground that prior to the filing of the petition to terminate rights, he had not established paternity judicially or by affidavit, legitimated the child pursuant to N.C. Gen. Stat. § 49- 10 or filed a petition for this purpose, legitimated the child by marriage to the mother of the child, or provided substantial financial support or consistent care to the child or the mother. See N.C. Gen. Stat. § 7B-1111(a)(5) (2005). Respondent's sole contention on appeal is that the court abused its discretion in concluding that it is in the child's best interest that his parental rights be terminated.
    The mother of the two children, AMP and YMG, relinquished her parental rights to them on 23 November 2004. The mother was not married at the time they were born. Each child has a different father. The mother never married either of the fathers. At the time of the termination hearing on 7 July 2005, respondent was incarcerated in the State of Ohio, serving a sentence for aggravated burglary, felony assault and robbery. Respondent's niece who resided in Toledo, Ohio appeared at the termination hearing and offered herself as a temporary placement for Y.B.G. until respondent is released from incarceration and is able to parent the child or as a permanent adoptive parent herself.
    A proceeding to terminate one's parental rights consists of two stages, an adjudicatory stage and a dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the former, the party petitioning to terminate rights has the burden of proving by clear, cogent and convincing evidence that one or more grounds authorizing termination exist. N.C. Gen. Stat. § 7B-1109(f)(2005); In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). If a ground for termination of parental rights is established, the court next proceeds to hold a dispositional hearing. In re Faircloth, 153 N.C. App. 565, 575, 571 S.E.2d 65, 72 (2002). At the dispositional stage, the court is required todetermine whether termination of parental rights is in the best interest of the child, taking into consideration such factors as the age of the juvenile, the likelihood of adoption, the accomplishment of a permanent plan for the juvenile, the bond between the juvenile and parent, and the quality of the relationship between the juvenile and the adoptive parent or other permanent placement. N.C. Gen. Stat. § 7B-1110(a) (2005); In re M.N.C., ___ N.C. App. ___, ___, 625 S.E.2d 627, 633 (2006). “[W]here there is a 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, the trial court is given discretion not to terminate rights.” In re Montgomery, 311 N.C. 101, 108, 316 S.E.2d 246, 251 (1984). The court's discretionary decision whether or not to terminate parental rights “will not be overturned on appeal absent a showing that the judge [sic] actions were manifestly unsupported by reason.” In re J.A.A., ___ N.C. App. ___, ___, 623 S.E.2d 45, 51 (2005).
    Respondent argues that “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.” He maintains that although he was incarcerated in the State of Ohio at the time of the hearing and was not scheduled to be released until 10 January 2006, he had a relative in Ohio who was willing to care for or adopt the child.
    A similar argument was made by the mother of J.A.A., who had a sister who expressed willingness to assume custody of the child. Id. We noted that the failure of the court to make any finding of fact relative to the willingness of the sister to assume custody did not mean that the court did not consider granting custody of the child to her. Id. at , 623 S.E.2d at 51. We found no abuse of discretion in the court's decision to terminate parental rights when the sister made an equivocal statement that she had reservations about her ability to care for the child after she learned the child had been suicidal. Id. at , 623 S.E.2d at 51.
    “[T]he fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody . . . [is] that the best interest of the child is the polar star.” In re Montgomery, 311 N.C. at 109, 316 S.E.2d at 251. The court's findings of fact in the case at bar show that during the time of respondent's incarceration, respondent has committed violations of prison rules, including testing positive for marijuana, fighting, and disrespect. Respondent estimates that he has been imprisoned ten to twelve times during a course of twenty or more years. Respondent has two other children, an eighteen-year-old and a child five months older than Y.B.G. Respondent provided care for the older child only for about the first three years of the child's life. For much of the remainder of that time, respondent has been incarcerated. The younger child is living with friends in Toledo, Ohio.
    The court's findings further show that given respondent's history of criminal activity and his prison infractions demonstrating poor anger management, a significant amount of timewill be required after his release from incarceration before he could provide the child with a stable and safe home environment and that he could only care for the child after he addressed his anger management issues.
    The findings of fact further establish that the child has been in the care of the same foster parents for approximately 18 months and that these foster parents desire to adopt her. The foster parents have bonded with the child and have enrolled her in special programs to address the child's delays in speech and motor skills. Y.B.G. considers the foster parents to be her parents and shows affection to them. The foster parents have two other children who have also bonded with Y.B.G.
    The court found that “the most fundamentally important aspect of Human Development in the first three to five years of life is bonding, and bonding effects [sic] the intellectual development and the capacity to develop relationships later in life[,]” that “given the fact that [Y.B.G.] was also removed from her caregivers at age two years two months, she is already at risk for developing bonding problems[,]” and that if she is removed from her current foster home, “her risk of developing relationship problems or Reactive Attachment Disorder in her future would increase.” The court determined that the child is “in need of a permanent home at the earliest possible age which can only be obtained by severing of the relationship between her” and respondent and that she “is in a most appropriate placement at this time where she is well bonded to her foster parents and to her two older siblings in the home.”     Respondent has not assigned error to the above findings of fact and thus they are binding. Dreyer v. Smith, 163 N.C. App. 155, 156-57, 592 S.E.2d 594, 595 (2004). These findings support the court's conclusion that it is in the child's best interest that respondent's parental rights to her be terminated. We discern no abuse of discretion.
    The order terminating respondent's parental rights is
    Judges MCCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
    Although the caption refers to two children, only Y.B.G.'s putative father appeals, and so this opinion addresses only his termination as to Y.B.G.

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