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2. Termination of Parental Rights_decision by same judge who had previously
terminated other parent's rights_no error
There was no error where a judge who had previously terminated a mother's parental
rights concluded that it was in the best interest of the child to terminate the father's rights.
Nothing suggests reliance by the court upon evidence other than that presented at the father's
hearing, and the court was entitled to take judicial notice that the mother's rights had been
terminated. Moreover, this district has a Family Court, one of the primary characteristics of
which is the assignment of one judge to one family.
Wake County Attorney's Office, by Corinne G. Russell, for Wake
County Human Services, petitioner-appellee.
Poyner & Spruill, LLP, by Bryn Dodge Wilson, for Guardian ad
Litem.
Annick Lenoir-Peek, for respondent-appellant.
JACKSON, Judge.
Respondent L.B., father of the minor child M.A.I.B.K., appeals
from an order terminating his parental rights. In an opinion filed
6 March 2007, this Court affirmed the termination of the
respondent-mother S.K.'s parental rights to the child. In re
M.A.I.B.K,, 182 N.C. App. 175 LEXIS 482, 641 S.E.2d 417 (2007)
(unpublished). M.A.I.B.K. was born out of wedlock in New York in July 1999,
and moved to Wake County, North Carolina with respondent-mother.
Wake County Human Services (“DSS”) obtained nonsecure custody of
the child and placed her in foster care on 1 July 2004, following
respondent-mother's incarceration on charges of obtaining property
by false pretenses and forgery. At the time of her arrest, the
mother was unemployed and homeless. Although she identified
respondent-father to DSS as the child's putative father, DSS'
attempts to locate him in New York were unavailing.
M.A.I.B.K. was adjudicated a neglected and dependent juvenile
on 15 September 2004. On 30 January 2006, DSS filed a petition to
terminate both respondents' parental rights, alleging the following
two grounds for termination as to respondent-father: (1) that he
had neglected M.A.I.B.K., and it was probable that such neglect
would be repeated if she were placed in his care, and (2) that
M.A.I.B.K. had been born out of wedlock, and respondent-father had
not established his paternity judicially or by affidavit filed with
the North Carolina Department of Health and Human Services, had not
legitimated the child, and had not provided substantial financial
support or consistent care for the child or her mother. See N.C.
Gen. Stat. § 7B-1111(a)(1), (5) (2005). Attached to the petition
was an affidavit from the North Carolina Department of Health and
Human Services (“NCDHHS”), affirming that “[n]o Affidavit of
Paternity has been received from any person acknowledging paternity
or purporting to be the father of [M.A.I.B.K.].” The petition was
served upon respondent-father by publication, and he appeared atthe termination hearing scheduled for 21 June 2006. The trial
court granted respondent-father's request for appointed counsel and
a continuance to prepare for the proceedings. The trial court then
proceeded with respondent-mother's termination hearing, and entered
an order terminating her parental rights on 20 July 2006.
The trial court held respondent-father's termination hearing
on 20 September 2006. DSS Social Worker Heather Shapiro
(“Shapiro”), who had supervised M.A.I.B.K.'s foster care since July
of 2004, testified that respondent-father was never married to
respondent-mother and had not established his paternity of
M.A.I.B.K. or legitimated the child prior to the filing of DSS's
petition; nor had an affidavit of paternity been filed with NCDHHS.
Respondent-father told Shapiro that he had not seen M.A.I.B.K.
since she was two years old, and although he was not “in a position
to care for” M.A.I.B.K., he “did have relatives that he wanted to
see her placed with possibly.” Other than inquiring about the
results of the paternity test in July 2006, respondent-father did
not contact Shapiro about the child after their initial interview.
His friend, Trudy Beamon (“Beamon”), called Shapiro to request a
visit with the child while respondent-father and Beamon were in
North Carolina for the termination hearing. At no time did
respondent-father provide any support for respondent-mother or
M.A.I.B.K., and even after learning the results of the paternity
test which determined he was the child's father, he made no attempt
to communicate with the child. In addition to Shapiro's testimony,
the trial court took judicial notice of the order terminating theparental rights of respondent-mother and the prior adjudication of
neglect entered on 15 September 2004.
Respondent-father testified, inter alia, that although
respondent-mother told him that he was M.A.I.B.K.'s father within
two months of her birth in 1999, he “didn't know for sure one way
or the other.” He stated that he tried to arrange a paternity test
in New York, but that respondent-mother had “just disappeared” with
the child. Respondent-father was aware that his friend, William
Worth, was in touch with respondent-mother but he made no effort to
communicate with her or to ascertain her whereabouts through Worth.
In June of 2006, four or five years since his last contact with
respondent-mother, respondent-father learned from Worth that “her
parental rights were about to be taken from her.” After speaking
to respondent-mother's attorney, respondent-father obtained a
paternity test through DSS in June 2006, and learned conclusively
that he was M.A.I.B.K.'s father in July 2006. He acknowledged that
he had not established his paternity of M.A.I.B.K. prior to June
2006, and had neither legitimated nor provided any support for the
child.
After hearing the parties' evidence, the trial court found
each of the grounds for termination as alleged by DSS under section
7B-1111(a)(1) and (5). The court then heard additional testimony
from Shapiro, respondent-father, and Beamon regarding the best
interests of M.A.I.B.K. The trial court also considered a report
on the child's best interests submitted by her guardian ad litem.
Based upon the evidence at disposition, the trial court concludedthat termination of respondent-father's parental rights would
facilitate the permanent placement plan of adoption and would serve
the best interests of the child. The order terminating respondent-
father's parental rights was entered on 13 October 2006.
We initially note that respondent-father asserts twenty-four
assignments of error in the record on appeal. However, respondent-
father's brief addresses only eight of the assignments of error.
Therefore, the remaining assignments of error for which no argument
has been presented are deemed abandoned. N.C. R. App. P. 28(b)(6)
(2006).
[1] On appeal, respondent-father asserts that the evidence
adduced at the termination hearing was insufficient to support
either of the grounds for termination found by the trial court.
At the initial, adjudicatory stage of termination proceedings,
the petitioner “'must show by clear, cogent, and convincing
evidence that grounds authorizing the termination of parental
rights exist'” under North Carolina General Statutes, section 7B-
1111(a). In re L.A.B., 178 N.C. App. 295, 298, 631 S.E.2d 61, 64
(2006) (citation omitted). A finding of any one of the statutory
grounds for termination is sufficient. In re Taylor, 97 N.C. App.
57, 64, 387 S.E.2d 230, 233-34 (1990). Where, as here, a
respondent does not challenge any of the trial court's adjudicatory
findings of fact by a properly briefed assignment of error, the
findings are deemed to be supported by competent evidence and are
binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991). Therefore, our review is limited to adetermination of whether the facts found by the trial court support
its conclusion that a ground for termination exists pursuant to
section 7B-1111(a). In re Helms, 127 N.C. App. 505, 511, 491
S.E.2d 672, 676 (1997) (citing In re Montgomery, 311 N.C. 101, 111,
316 S.E.2d 246, 253 (1984)).
Under North Carolina General Statutes, section 7B-1111(a)(5),
the trial court may terminate a father's parental rights if it
finds as follows:
The father of a juvenile born out of wedlock
has not, prior to the filing of a petition or
motion to terminate parental rights:
a. Established paternity judicially or by
affidavit which has been filed in a
central registry maintained by the
Department of Health and Human Services;
provided, the court shall inquire of the
Department of Health and Human Services
as to whether such an affidavit has been
so filed and shall incorporate into the
case record the Department's certified
reply; or
b. Legitimated the juvenile pursuant to
provisions of G.S. 49-10 or filed a
petition for this specific purpose; or
c. Legitimated the juvenile by marriage to
the mother of the juvenile; or
d. Provided substantial financial support or
consistent care with respect to the
juvenile and mother.
N.C. Gen. Stat. § 7B-1111(a)(5) (2005). In its termination order,
the trial court made particularized findings as to M.A.I.B.K.'s
out-of-wedlock birth and respondent-father's failure to take any of
the actions required by this subsection. Rather than contest the
sufficiency of the trial court's findings under section 7B-1111(a)(5), respondent-father asserts that the actions of
respondent-mother after the birth of M.A.I.B.K. “prevented [him]
from taking any of the steps required to establish paternity” or to
provide support and care for the child. While acknowledging the
“bright line test” adopted by our courts in interpreting this
subsection, he suggests that this Court “should set aside its'
[sic] prior line of cases which apply N.C. Gen. Stat. § 7B-
1111(a)(5) without consideration for the particular circumstances
of each case.”
Respondent-father likens his circumstances to that of the
father in A Child's Hope, LLC v. Doe, 178 N.C. App. 96, 630 S.E.2d
673 (2006), and he argues that, for reasons similar to those stated
in the dissent in A Child's Hope, we should set aside the bright
line test. We find no merit to respondent-father's claim. In A
Child's Hope, this Court reiterated that the provisions of section
7B-1111(a)(5) are applied strictly, without regard to the
respondent-father's knowledge of the minor child:
Our Court has previously considered and
rejected the argument that a putative father
“was unable to take the steps set out in N.C.
Gen. Stat. § 7B-1111(a)(5) because he did not
know of” the existence of the child. The
similarity of the requirements between the
statute permitting the termination of a
putative father's rights and the statute
requiring the consent of a father of a child
born out of wedlock to its adoption reflect
the intention of the legislature not to make
an “illegitimate child's future welfare
dependent on whether or not the putative
father knows of the child's existence at the
time the petition is filed.”
Id. at 103, 630 S.E.2d at 677 (quoting In re T.L.B., 167 N.C. App.298, 302-03, 605 S.E.2d 249, 252 (2004); citing In re Adoption of
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)). In A Child's
Hope, we held that the respondent-father's failure to take any of
the acts set forth in section 7B-1111(a)(5) required the district
court to find grounds for termination thereunder, notwithstanding
evidence that the mother hid the child's existence from the father
by claiming to have miscarried. Id. at 105, 630 S.E.2d at 678.
While expressing “no doubt that the biological mother thwarted
respondent's parental rights by lying about the status of the
pregnancy[,]” this Court concluded that section 7B-1111(a)(5) “is
explicit in its requirements and there was no evidence that
respondent met those requirements.” Id. at 105, 630 S.E.2d at 678.
Here, the record is equally clear that respondent-father took
none of the steps required by section 7B-1111(a)(5) to assume his
responsibilities as M.A.I.B.K.'s father. Unlike the father in A
Child's Hope, respondent-father was aware of his daughter's
existence and had been told by the child's mother that he was the
father. Respondent-father also saw the child on at least two
occasions. Moreover, despite knowing that his friend, William
Worth, was in contact with respondent-mother, respondent-father
made no attempt to contact her regarding M.A.I.B.K. over a period
of almost seven years. In addition, unlike the father in A Child's
Hope, once respondent-father learned he was the father of
M.A.I.B.K., he still took no action to communicate with or provide
support for the child. Accordingly, we hold the trial courtproperly found grounds to terminate respondent-father's parental
rights under North Carolina General Statutes, section 7B-
1111(a)(5). Because we uphold the court's adjudication under
section 7B-1111(a)(5), we need not review the second ground for
termination found under section 7B-1111(a)(1). Taylor, 97 N.C.
App. at 64, 387 S.E.2d at 233-34.
[2] Respondent-father next claims the trial court violated the
procedures set forth in North Carolina General Statutes, sections
7B-1109(e) and -1110(a) (2005), by considering M.A.I.B.K.'s best
interests prior to adjudicating the existence of grounds to
terminate his parental rights. As the basis for this argument, he
notes that the trial judge who presided over his termination
hearing previously heard evidence and reached conclusions about the
best interests of the child in terminating respondent-mother's
parental rights on 20 July 2006. Respondent-father suggests that
the trial judge's disposition in his case was impermissibly
“tainted” by her earlier disposition of the mother's case.
Our Juvenile Code contemplates a two-stage proceeding for the
termination of parental rights. See, e.g., In re White, 81 N.C.
App. 82, 85, 344 S.E.2d 36, 38 (1986) (citing Montgomery, 311 N.C.
at 110, 316 S.E.2d at 252). During the initial, adjudicatory stage
prescribed by section 7B-1109, “[t]he court shall take evidence,
find the facts, and shall adjudicate the existence or nonexistence
of any of the circumstances set forth in G.S. 7B-1111 which
authorize the termination of parental rights of the respondent.”
N.C. Gen. Stat. § 7B-1109(e) (2005). The second, dispositionalstage is governed by North Carolina General Statutes, section 7B-
1110, which provides, “[a]fter an adjudication that one or more
grounds for terminating a parent's rights exist, the court shall
determine whether terminating the parent's rights is in the
juvenile's best interest.” N.C. Gen. Stat. § 7B-1110(a) (2005).
The trial court need not conduct a separate and distinct hearing
for each stage, however, and may hear adjudicatory and
dispositional evidence concurrently, provided that it applies the
appropriate standard of proof at each stage. White, 81 N.C. App.
at 85, 344 S.E.2d at 38. Moreover, “'[e]vidence heard or
introduced throughout the adjudicatory stage, as well as any
additional evidence, may be considered by the court during the
dispositional stage.'” In re J.B., 172 N.C. App. 1, 23, 616 S.E.2d
264, 277 (2005) (quoting In re Blackburn, 142 N.C. App. 607, 613,
543 S.E.2d 906, 910 (2001)). The trial court's determination of a
child's best interests at disposition is reviewed only for an abuse
of discretion. Id. at 24, 616 S.E.2d at 278 (citing In re Nolen,
117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995)).
We find no error in the procedures employed by the trial court
in the instant case. While not required to do so, the trial court
conducted a separate dispositional hearing after adjudicating the
existence of grounds for termination of respondent-father's rights.
Nothing in the trial court's dispositional findings and conclusions
suggests its reliance upon any evidence other than what was
presented by the parties at the hearing for respondent-father.
Moreover, in evaluating the best interests of M.A.I.B.K., the trialcourt was entitled to take judicial notice that the respondent-
mother's parental rights also had been terminated. See generally
J.B., 172 N.C. App. at 16, 616 S.E.2d at 273 (“'A trial court may
take judicial notice of earlier proceedings in the same cause.'”)
(quoting In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73
(1991)). Respondent-father cites no authority that would bar a
trial judge from presiding in an action to terminate the parental
rights of one parent of a child simply because the judge previously
has terminated the rights of the other parent. See N.C. R. App. P.
28(b)(6) (2006).
In addition, we note that the Tenth Judicial District has a
specialized division of the District Court known as Family Court.
The Family Court program began with a pilot program in three
judicial districts in 1999, and the Administrative Office of the
Courts has since expanded the Family Court program to eleven
judicial districts in North Carolina. One of the primary
characteristics of the Family Court is its “one judge, one family”
policy. This policy is “[o]ften cited as the most critical
component of any successful family court,” as it helps “avoid the
fragmentation, the duplication of effort and expense, and the
potential for conflicting court orders” in a domestic case. Cheryl
Daniels Howell, North Carolina's Experiment with Family Court,
Popular Gov't, Summer 2000, at 15, 18.
Pursuant to the authority granted by North Carolina GeneralStatutes, section 7A-146
(See footnote 1)
, the Tenth Judicial District has adopted
local rules which govern its juvenile Family Court cases. These
rules require judicial assignment of one judge to each juvenile's
case. Specifically, Rule 19.1 of the Tenth Judicial District
Juvenile Abuse/Neglect/Dependency Court Rules, which became
effective 15 February 2006, provides as follows:
19.1 Judicial Assignment upon Adjudication.
Once a juvenile case involving allegations of
abuse, neglect, or dependency has been
adjudicated, that case shall be assigned to
the judge presiding over the
Adjudication/Disposition hearing. All
subsequent hearings in the case shall bescheduled before the same judge, including
Termination of Parental Rights hearings and
future adjudications regarding the same
juvenile(s), unless extraordinary
circumstances require otherwise.
10th Jud. Dist. Juv. Abuse/Neglect/Dependency Ct. R. 19.1 (Feb. 15,
2006).
The petition for termination of parental rights in this case
was filed just prior to the effective date for Rule 19.1, but this
Rule was in effect at the time of the termination of parental
rights hearings of both the mother and respondent-father.
Therefore, Judge Sasser, as the assigned judge in juvenile court,
was required pursuant to Rule 19.1 to hear all juvenile matters
involving M.A.I.B.K., “unless extraordinary circumstances
require[d] otherwise.” Id. Respondent-father has not argued any
extraordinary circumstances in this case which would call for
removal or recusal of the assigned judge. The fact that the
assigned judge would have heard other matters involving the
particular child and/or family is entirely appropriate in juvenile
Family Court cases such as this one.
As further support for his claim that the trial court pre-
judged the issue of M.A.I.B.K.'s best interests, respondent-father
contends the “only findings of facts which refer to [him]” on the
issue of M.A.I.B.K.'s best interests are the following:
39. That it is in the best interests of
M.A.I.B.K. that the rights of the father,
[L.B.], be terminated.
. . . .
41. That the conduct of the father . . . has
been such as to demonstrate that he willnot promote the healthy and orderly,
physical and emotional well being of the
child, M.A.I.B.K.
42. That the minor child, M.A.I.B.K., is in
need of a permanent plan of care at the
earliest possible age which can be
obtained only by the severing of the
relationship between the child and her
father, and by termination of the
parental rights of the father[.]
43. That it is in the best interests of the
child, M.A.I.B.K., that the parental
rights of the father . . . be terminated.
Respondent-father contends these findings “are not supported by
competent evidence” and are mere reiterations of conclusions of law
appearing elsewhere in the order.
Again, we find no merit to this claim. Regarding the quantity
of the trial court's findings on the child's best interests vis a
vis respondent-father, we note that he fails to reckon with the
following uncontested findings pertinent to the issue:
18. That when the child was born, the father
believed, but was not 100% sure, that he
was the father of the child.
19. That the father last saw the child when
she was two and a half years old.
. . . .
21. That when the mother left with the child
the father took no steps to find the
child or the child's mother.
22. That the father and mother have, and have
had since the birth of the child, a
mutual acquaintance in the child's
godfather[, Worth].
23. That after the mother left with the
child, the father was aware the mother
occasionally contacted [Worth].
24. That the father never asked [Worth] if he
knew the whereabouts of the mother or the
child; the father did not ask [Worth] to
relay messages to the mother or the
child; and the father took no steps to
utilize [Worth] as a way to look for the
child.
25. That the father has not legitimated the
child by statute or through marriage.
26. That the father has provided no financial
support for the child during her life.
27. That the father did not establish
paternity for the child prior to the
filing of the petition to terminate
parental rights.
28. That the father's first appearance in
this matter was at a hearing initially
held on June 21, 2006. The father met
with the social worker at this time. He
told the social worker that he is not in
a position to care for the child in the
future, but wants her to live with family
in New York.
29. That since that date the father has not
traveled to North Carolina to visit with
the child. The father did not send the
child any cards or gifts. He did not
request a visit until, through his
companion, he requested to see the child
while he was in town for today's hearing.
. . . .
31. That the permanent plan for M.A.I.B.K. is
adoption. The agency at this time is
looking at the foster parent who is
interested in adopting.
32. That a child needs stability and needs a
safe and secure sense of belonging in
order to develop a healthy life. It is
not a safe, permanent plan for a child to
be in limbo in foster care . . . .
33. That the child has been placed with the
current foster parent[] since she has
been in care and has developed a strongbond with her. M.A.I.B.K. also has a
strong bond with the foster parent's
extended family.
34. That M.A.I.B.K. is a very adoptable
child. She is articulate, intelligent,
outgoing, beautiful, has no behavior
issues and does well in school.
35. That M.A.I.B.K. and her father have no
bond.
36. That M.A.I.B.K. turned seven years of age
. . ., and the likelihood of her adoption
appears great.
See N.C. Gen. Stat. § 1110(a)(1)-(6) (2005). Moreover, we find
ample support for findings of fact 39, and 41-43 in the testimony
of Shapiro and respondent-father, and the guardian ad litem's
report. The report noted respondent-father's failure to provide
the guardian ad litem with promised documentation regarding his
criminal and employment histories, housing, and other information
pertinent to his ability to care for a child. It also noted that
he “made no efforts to acknowledge [M.A.I.B.K.'s] birthday in mid
July or to request [] visits or phone call privileges.” The report
advised the trial court that M.A.I.B.K. “continues to thrive in her
original foster care placement” and “is very bonded with her foster
mother.” The foster mother was described as “anxious to take
permanent custody of [M.A.I.B.K.] if [] she becomes free for
adoption.” The guardian ad litem portrayed M.A.I.B.K. as having
experienced “a tremendous amount of grief, loss and stress in her
short life[,]” pointing specifically to her loss of respondent-
mother after five “very chaotic” years in her care. She concluded
her report as follows:
M.A.I.B.K. needs a stable nurturing permanent
home. . . . It is apparent that [she] isdoing very well and feels safe and secure in
her present home. This Guardian feels that
[it] is in the best interest of M.A.I.B.K. to
be adopted by her current foster parent.
Finally, although the determination of a child's best interests is
in the nature of a conclusion of law rather than pure fact-finding,
see Helms, 127 N.C. App. at 511, 491 S.E.2d at 676, we hold the
trial court's conclusion to be fully supported by its findings of
fact and the evidence presented at the hearing. Respondent-
father's final assignment of error is overruled.
Affirmed.
Judges STEPHENS and STROUD concur.
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