IN THE MATTER OF:
P.P.B.
Halifax County
No. 04 J 34
Joyce L. Terres and Jeffery L. Jenkins, for Halifax County
Department of Social Services, petitioner-appellee.
Womble Carlyle Sandridge & Rice, PLLC, by Stuart A. Brock, for
Guardian ad Litem Melinda Hardy, petitioner-appellee.
Appellate Defender Staples Hughes, by Assistant Appellant
Defender Keischa M. Lovelace, for respondent-mother-appellant.
Mary McCullers Reece for respondent-father-appellant.
JACKSON, Judge.
Z.B. (“respondent mother”) and L.M. (“respondent father”)
appeal the termination of their parental rights to P.P.B. For the
reasons stated below, we affirm the trial court's termination
order.
Respondent mother was a forty-three-year-old single mother and
college student.
In 2002, she enrolled in St. Paul's College in
Lawrenceville, Virginia
and began working towards a degree in
business education. She paid for her education and the needs ofher son and herself with student loans, work study, scholarships,
and Virginia public assistance. In the fall of 2003, she became
pregnant with P.P.B. while in school.
In March 2004, respondent mother was living temporarily with
her mother in Roanoke Rapids, North Carolina when she began
experiencing pregnancy-related complications and went to the
emergency room at Halifax Regional Medical Center. She admitted to
the doctors that she had not received any prenatal care and had
used cocaine a week earlier. A few days later, she gave birth to
P.P.B. approximately seven to eight weeks prematurely. Both
respondent mother and P.P.B. tested positive for cocaine as a
result of respondent mother's drug usage during her pregnancy, and
P.P.B. remained in the hospital due to low birth weight, special
nutrition needs, jaundice, and fever.
On 23 March 2004, Halifax County Department of Social Services
(“DSS”) filed a juvenile petition alleging P.P.B. was neglected and
dependent. That day, the trial court entered a nonsecure custody
order placing P.P.B. in DSS' custody. On 29 March 2004, both
parents were ordered to complete substance abuse screening and
mental health assessments, to follow all resulting recommendations,
and to cooperate with paternity testing efforts.
Between March and June 2004, respondent mother continued her
education in Virginia. The foster mother stated that during this
time,
respondent mother never missed a scheduled visit with P.P.B.
Respondent father also visited with P.P.B. when his work schedule
permitted.
Respondent mother participated in a substance abuse screening
and attended five weekly meetings for outpatient group therapy
between 28 April 2004 and 26 May 2004. However, respondent mother
missed the last three meetings and her case was closed as
unsuccessful.
Respondent father also participated in a substance abuse
screening, where he admitted to a long history of alcohol and
cocaine abuse. He previously had received inpatient treatment on
at least four occasions since the 1980s. Nonetheless, he had used
both alcohol and cocaine only days before his screening. On 20
August 2004, the trial court suspended respondent father's
visitation rights until paternity was established and respondent
father began substance abuse treatment.
In August and September 2004, DSS asked respondent mother
several times to submit to random drug testing. She was asked on
12 August 2004 to submit to a hair sample test, but she refused as
she had just had her hair professionally braided. Although
respondent mother promised to return the following day, DSS learned
on 17 August 2004 that respondent mother had not returned as
promised. DSS asked respondent mother to submit to drug testing on
19 August 2004, but once again, she failed to comply. On 26 August
2004, respondent mother rejected another DSS request for a drug
test, and on 31 August 2004, the trial court ordered respondent
mother to comply with drug testing that day or else her visitation
would be suspended. When she finally submitted to drug testing on8 September 2004, she tested positive for cocaine, and
consequently, her visitation was suspended.
As a result of her positive drug test, a mental health
reevaluation was scheduled for 14 October 2004. DSS rescheduled
the evaluation for 1 November 2004 due to respondent mother's
midterm examinations at St. Paul's College. Respondent mother,
however, failed to attend the rescheduled evaluation, just as she
had failed to attend her 28 October 2004 court hearing. Respondent
mother made no attempt to contact DSS, and all phone numbers
provided to DSS for respondent mother had been disconnected.
Meanwhile, DSS encountered similar resistance from respondent
father, who failed to attend a scheduled paternity testing
appointment on 17 September 2004. On 6 October 2004, respondent
father contacted DSS for the first time to request visitation. In
accordance with the trial court's order on 24 June 2004, DSS denied
respondent father's visitation request as he still had not begun
substance abuse treatment, a condition for reinstating his
visitation rights. On 15 October 2004, respondent father again
failed to attend a paternity testing appointment, and the testing
was rescheduled again.
Visitation by respondent mother was reinstated by order dated
22 November 2004. The court ordered respondent mother not to miss
a single visit. Respondent mother contacted DSS about visitation,
and visitation resumed 2 December 2004. At that visit, however,
respondent mother indicated that having P.P.B. back in her life
would only complicate things and that she would like it if P.P.B.remained in the foster parents' home. Respondent mother missed
scheduled visits on 9 December 2004, 16 December 2004, 30 December
2004, 6 January 2005, and 27 January 2005, and respondent mother
also failed to attend the permanency planning meeting on 18 January
2005.
Respondent father, who also missed the permanency planning
meeting, told DSS on 18 January 2004 that he wanted nothing to do
with the case, including support, if P.P.B. was not returned to her
mother. Three days later, on 21 January 2005, respondent father
was judicially determined to be P.P.B.'s father.
On 24 February 2005, the court held a permanency planning
hearing, which neither respondent mother nor respondent father
attended. In addition to noting respondent mother's failed drug
test, missed treatment sessions, missed visitations, and failure to
attend parenting classes, the court also found that respondent
father had not cooperated with DSS, had not participated in
substance abuse screenings, had not provided any child support, and
had not shown any interest in P.P.B. Accordingly, P.P.B.'s
placement plan was changed from reunification to adoption, and
visitation with both parents was suspended pending further review.
DSS filed a Motion for Termination of Parental Rights on 5 May
2005. A hearing was held 9 June 2005, and once again, respondent
mother was not present in court. Her attorney had not had contact
with her since 5 December 2004. The trial court found that both
parents had willfully abandoned P.P.B. and ordered their parental
rights terminated by order dated 23 June 2005.
Both respondent mother and respondent father appeal the trial
court's conclusion that they willfully abandoned their minor child.
Therefore, we will address this issue first.
“On appeal, our standard of review for the termination of
parental rights is whether the court's findings of fact are based
upon clear, cogent and convincing evidence and whether the findings
support the conclusions of law.” In re Baker, 158 N.C. App. 491,
493, 581 S.E.2d 144, 146 (2003) (citations, alteration, and
internal quotation marks omitted).
Furthermore, “[t]he presumption
is in favor of the correctness of the proceedings in the trial
court, and the burden is on the appellant to show error.”
In re
Moore, 306 N.C. 394, 403, 293 S.E.2d 127, 132 (1982) (citations
omitted). In the case sub judice, the trial court concluded that
both parents had willfully abandoned P.P.B. pursuant to North
Carolina General Statutes, section 7B-1111(a)(7). This conclusion
will be upheld if supported by the trial court's findings of fact
and those findings are based on clear, cogent, and convincing
evidence.
Section 7B-1111(a) provides that “[t]he court may terminate
the parental rights upon a finding . . . [that] [t]he parent has
willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition or motion.”
N.C. Gen. Stat. § 7B-1111(a)(7) (2005). As clarified by this
Court, “'[a]bandonment imports any wil[l]ful or intentional conduct
on the part of the parent which evinces a settled purpose to forego
all parental duties and relinquish all parental claims to thechild.'”
In re T.C.B., 166 N.C. App. 482, 485, 602 S.E.2d 17, 19
(2004) (alteration in original) (quoting In re Apa, 59 N.C. App.
322, 324, 296 S.E.2d 811, 813 (1982)). “'Whether a biological
parent has a willful intent to abandon his child is a question of
fact to be determined from the evidence,'” id. (quoting In re
Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514
(1986)), and as this Court recently noted, “[w]illful abandonment
has been found where a parent withholds his presence, his love, his
care, the opportunity to display filial affection, and [willfully]
neglects to lend support and maintenance.” In re D.J.D., 171 N.C.
App. 230, 241, 615 S.E.2d 26, 33 (2005) (second alteration in
original) (quoting In re McLemore, 139 N.C. App. 426, 429, 533
S.E.2d 508, 509 (2000) (interpreting N.C. Gen. Stat. . 7A-289.32,
the predecessor to N.C. Gen. Stat. . 7B-1111)).
As to respondent mother, the trial court found that she had
failed to visit regularly since March 2004, had missed several
mandatory visits in December 2004 and January 2005, had failed to
maintain contact with DSS, and had failed to provide financial
support for her minor child. The trial court then concluded that
“[respondent mother's] behavior indicates an intent to forgo all
parental duties toward [P.P.B.]” and provided grounds under section
7B-1111(a)(7) that she had willfully abandoned her minor child for
at least six consecutive months immediately preceding the filing of
the motion to terminate parental rights.
Respondent mother argues that the trial court considered
events outside the relevant six-month period of 5 November 2004 to5 May 2005. However, the statute requires that the child be
abandoned for at least six months prior to the motion or petition
to terminate parental rights. See N.C. Gen. Stat. . 7B-1111(a)(7).
It therefore was within the court's discretion to consider events
prior to the six-month period immediately preceding the filing of
the motion.
Respondent mother also argues that the court made no findings
of her financial resources during the relevant six-month period.
However, “[s]ince the petitions did not allege, and the court did
not find, that respondent [mother] had not paid a reasonable
portion of the cost of child care while the child[] [was] in foster
care, the court was not required to make findings as to [her]
ability to pay.” In re White, 81 N.C. App. 82, 87, 344 S.E.2d 36,
39 (citation omitted), disc. rev. denied, 318 N.C. 283, 347 S.E.2d
470 (1986). The trial court found that while respondent mother
received money through work study at St. Paul's College for part of
the six-month period preceding the filing of the motion to
terminate her parental rights, she paid no child support during
that time. These facts evidence an ability to pay at least some
amount of support, and though her legal obligation to pay support
may have been suspended when she began receiving public assistance
from Virginia, her moral obligation to support P.P.B. remained.
See Tilley v. Tilley, 30 N.C. App. 581, 583, 227 S.E.2d 640, 641.42
(1976) (quoting Ford v. Sec. Nat'l Bank, 249 N.C. 141, 143, 105
S.E.2d 421, 423 (1958)). Additionally, as this Court has noted,
even earning as little as forty cents per day evidences an ability,and thus an obligation, to pay child support. See In re T.D.P., 164
N.C. App. 287, 595 S.E.2d 735 (2004), aff'd, 359 N.C. 405, 610
S.E.2d 199 (2005) (per curiam). In the case sub judice, despite
working twenty hours per week at six dollars per hour, in addition
to receiving $228.00 per month in public assistance, respondent
mother failed to provide any financial support for P.P.B., and
accordingly, the trial court properly concluded that respondent
mother demonstrated an intent to forgo all parental duties toward
P.P.B.
Respondent mother further argues that her failure to maintain
contact with DSS was due to DSS' ceasing of all communications.
This argument is without merit. Although DSS was under no
obligation to contact respondent mother once P.P.B.'s placement
plan was changed to adoption, nothing prevented respondent mother
from inquiring about her child. During the six months immediately
preceding the filing of the motion to terminate parental rights,
respondent mother talked to DSS only once regarding visitation and
once regarding substance abuse treatment in Virginia, and
respondent mother failed to follow up on either of these
conversations. Respondent mother also failed to appear at several
court appearances during the relevant six months _ including the
permanency planning hearing _ and she failed to maintain contact
with her attorney. Even if DSS had attempted to contact respondent
mother, all of the phone numbers provided to DSS for respondent
mother had been disconnected. The responsibility for any failurein communication falls squarely on respondent mother and only
further evidences her apparent intent to abandon P.P.B.
Respondent mother also states that she visited her daughter
four times during the relevant six months. However, this does not
negate the fact that she was ordered by the court not to miss a
single visit, yet still missed five visits in December 2004 and
January 2005. Although respondent mother argues that it was
difficult for her to visit P.P.B. while in school in another state,
this Court notes that respondent mother's college was in
Lawrenceville, Virginia, which is located approximately fifty miles
from the heart of Northampton County, where P.P.B. presently
resides. Additionally, at least a few of the missed visits would
have occurred during the college's winter break, during which time
respondent mother would have been free from school obligations.
Contrary to respondent mother's contention, there was clear,
cogent, and convincing evidence supporting the trial court's
conclusion that respondent mother willfully abandoned her minor
child. Therefore, her assignment of error is without merit.
As to respondent father, the trial court found that he had
visited P.P.B. only three times since March 2004, had twice failed
to appear for paternity testing, had failed to maintain contact
with DSS, had refused to pay child support, and had never asked for
custody. The trial court then concluded that “[respondent
father's] behavior indicates an intent to forgo all parental duties
toward [P.P.B.]” and provided grounds under section 7B-1111(a)(7)
that he had willfully abandoned his minor child for at least sixconsecutive months immediately preceding the filing of the motion
to terminate parental rights.
Like respondent mother, respondent father argues the trial
court considered events outside the relevant six-month period.
Respondent father notes that during the relevant six months, he
took a paternity test and was adjudicated to be P.P.B.'s father.
However, for the reasons stated above, the trial court was free to
consider the prior paternity test appointments that respondent
father failed to attend. In addition, the paternity issue could
have been resolved at the initial court date of 29 March 2004 by
providing an Affidavit of Parentage, which respondent father made
no attempt to provide.
Respondent father also argues that his failure to visit was a
direct result of the trial court's Amended Dispositional Order of
20 August 2004. That order prohibited visitation between P.P.B.
and respondent father until respondent father was judicially
determined to be the biological father and until respondent father
began substance abuse treatment. However, he fails to attribute
that order to his own failure both to obtain a judicial
determination of paternity and to seek substance abuse treatment.
Had he completed both of these requirements, the trial court's
order would not have precluded him from visiting P.P.B.
In sum, the trial court's findings are based on clear, cogent,
and convincing evidence that respondent father willfully abandoned
his minor child. The trial court did not err in so concluding. In respondent mother's other assignment of error, she contends
the trial court erred in ordering the termination of her parental
rights. We disagree.
The termination of parental rights is a two-step process, and
a different standard of review applies at each phase. See In re
L.A.B., ___ N.C. App. ___, ___, 631 S.E.2d 61, 64 (2006) (citing In
re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001)).
During the adjudicatory stage, DSS has the burden of proving by
clear, cogent, and convincing evidence that at least one statutory
ground for termination of parental rights exists under North
Carolina General Statutes, section 7B-1111. See Blackburn, 142 N.C.
App. at 610, 543 S.E.2d at 908. Once DSS has met its burden, the
trial court moves to the dispositional phase and must consider
whether termination is in the best interests of the child. See id.
A trial court's disposition in a termination proceeding is reviewed
only for abuse of discretion. See id. at 613, 543 S.E.2d at 910.
Ultimately, “[a]lthough severing parental ties is a harsh judicial
remedy, the best interests of the child[] must be considered
paramount.” In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 5
(2004) (quoting In re Adcock, 69 N.C. App. 222, 227, 316 S.E.2d
347, 350 (1984)). In fact, “the [trial] court is required to issue
an order of termination in the dispositional stage, unless it finds
the best interests of the child would be to preserve the parent's
rights.” Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910
(emphasis added); see also N.C. Gen. Stat. § 7B-1110(a) (2005). As demonstrated above, clear, cogent, and convincing evidence
exists that respondent mother willfully abandoned P.P.B.
Additionally, based on the record before it, the trial court
properly concluded that it was in the best interest of the child
that respondent mother's and respondent father's parental rights be
terminated, thereby providing an opportunity for P.P.B. to be
adopted into a loving, nurturing, and supportive home. Having come
to this conclusion, it was within the trial court's discretion to
terminate their parental rights. Respondent mother has failed to
show that the court abused its discretion, and accordingly, this
assignment of error is without merit.
Respondent father has brought several additional assignments
of error, the first of which contends the trial court erred in
failing to appoint him a guardian ad litem. We disagree.
At the time the motion to terminate respondent father's
parental rights was filed, North Carolina General Statutes, section
7B-1101 provided in relevant part:
[A] guardian ad litem shall be appointed in
accordance with the provisions of G.S. 1A-1,
Rule 17, to represent a parent in the
following cases:
(1) Where it is alleged that a parent's rights
should be terminated pursuant to G.S.
7B-1111(a)(6), and the incapability to provide
proper care and supervision pursuant to that
provision is the result of substance abuse,
mental retardation, mental illness, organic
brain syndrome, or another similar cause or
condition.
N.C. Gen. Stat. § 7B-1101 (2003) (emphasis added).
(See footnote 1)
Two years ago,
this Court reversed an order terminating parental rights on the
ground that a guardian ad litem had not appointed. In re S.B., 166
N.C. App. 488, 602 S.E.2d 691 (2004). Specifically, we noted that
the motion in the cause to terminate
respondent's parental rights with respect to
S.B. alleges that '[r]espondent has a twenty
year history of heavy substance abuse,' then
proceeds to allege, as grounds for termination
of respondent's rights, S.B.'s juvenile
dependency due to respondent's 'incapability'
in language that tracks the statutory language
of section 7B-1111(a)(6).
Id. at 493, 602 S.E.2d at 694 (alteration in original).
The instant case is distinguishable from In re S.B. Here,
DSS' motion to terminate parental rights did not allege dependency.
Rather, DSS alleged, inter alia, neglect, failure to pay child
support, failure to make satisfactory progress, and willful
abandonment as grounds for terminating parental rights. Although
the initial juvenile petition filed on 23 March 2004 alleged
dependency, a trial court is obligated to conduct a hearing
regarding the appointment of a guardian ad litem only “where an
allegation is made that parental rights should be terminated,” In
re J.A.A., ___ N.C. App. ___, ___, 623 S.E.2d 45, 48 (2005), not
merely where an order for nonsecure custody is sought.
Furthermore, although DSS' motion referenced respondent father's
thirty-year history of alcohol abuse and twenty-year history ofcocaine abuse, “the trial court is not required to appoint a
guardian ad litem in every case where substance abuse or some other
cognitive limitation is alleged.” J.A.A., ___ N.C. App. at ___, 623
S.E.2d at 48 (citation and internal quotation marks omitted).
Because DSS did not allege dependency in its motion to terminate
respondent father's parental rights and because there is no
allegation or evidence in the record that respondent father's
substance abuse was a significant factor in his neglect of P.P.B.,
the trial court was not obligated to appoint a guardian ad litem
for respondent father. See D.H., ___ N.C. App. at ___, 629 S.E.2d
at 925;
J.A.A., ___ N.C. App. at ___, 623 S.E.2d at 48; see also
In re K.H., ___ N.C. App. ___, ___, 627 S.E.2d 478, 481.82 (2006)
(Jackson, J., dissenting).
In his next assignment of error, respondent father contends
the trial court erred in finding that his failure to obtain a
paternity test indicated no strong desire to establish paternity so
that he could reestablish visitation with P.P.B. We disagree.
As indicated above, respondent father could have provided an
Affidavit of Parentage at the 29 March 2004 hearing, thus
immediately establishing paternity of P.P.B. However, paternity
was not established until ten months later. Respondent father
missed two scheduled paternity test appointments, despite having
spoken with DSS only days before one of them and despite his
knowledge that judicial determination of paternity was a
requirement to his being allowed to visit P.P.B. Therefore, the
trial court's finding is supported by clear, cogent, and convincingevidence, which in turn supports the court's conclusion of willful
abandonment.
Respondent father also assigns error to the trial court's
incomplete finding that he told the social worker that “he was not
asking that the child be placed with him, and that he did not plan
to pay any support for the child.” Respondent father's complete
statement, however, was set out in an earlier finding of fact, and
as such, this assignment of error is without merit.
In his final assignment of error, respondent father contends
the trial court erred in considering the possibility of adoption as
a factor supporting the termination of his parental rights. We
disagree.
Although termination of parental rights is a two-step process,
this Court has not required two separate hearings. See White, 81
N.C. App. at 85, 344 S.E.2d at 38. Furthermore,
since a proceeding to terminate parental
rights is heard by the judge, sitting without
a jury, it is presumed, in the absence of some
affirmative indication to the contrary, that
the judge, having knowledge of the law, is
able to consider the evidence in light of the
applicable legal standard and to determine
whether grounds for termination exist before
proceeding to consider evidence relevant only
to the dispositional stage.
Id.
Respondent father argues the trial judge erred by considering
the positive impact that the child's adoption might have, while
still considering the evidence of grounds for termination. He
references transcript pages wherein the judge was dictating his
order into the record.
As an order lists all findings of fact,then all conclusions of law, it was not error to dictate findings
as to the impact of adoption prior to dictating conclusions as to
grounds for termination.
For all of the foregoing reasons, we hold that there was no
error in the trial court's order terminating the parental rights of
respondent mother and respondent father.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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