Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-995

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

IN THE MATTER OF                        Harnett County
                                    No. 04 J 43
D.Z.F.
                                                

    Appeal by respondent father from judgment entered 28 November 2005 by Judge George R. Murphy in Harnett County District Court. Heard in the Court of Appeals 25 January 2007.

    E. Marshall Woodall and Duncan B. McCormick, for the Harnett County Department of Social Services.

    Elizabeth Boone for the guardian ad litem.

    Peter Wood for respondent-father.

    CALABRIA, Judge.

    Herman F. (“Respondent”) appeals from an order entered 28 November 2005 in Harnett County District Court terminating his parental rights to D.Z.F. (“the minor child”). We affirm.
    Respondent and Wendy F. (“Wendy”), the biological parents of the minor child, engaged in a relationship during 2002 and 2003. During the relationship, both of them used illegal drugs. Wendy had no contact with respondent after June of 2003 and stated that she was afraid of respondent. In November of 2003, Wendy gave birth to the minor child. After the minor child's birth, Harnett County Department of Social Services (“DSS”) learned that Wendy used drugs and neglected the minor child. DSS substantiated the report and, as a result, extended case management services toWendy. During the time services were extended to Wendy, D.Z.F. was subjected to unsanitary living conditions and domestic violence. Wendy continued abusing drugs. During this time, respondent had no contact with Wendy. On 15 March 2004, DSS filed a petition and obtained non-secure custody of D.Z.F., who was placed in foster care.
    In October of 2004, respondent was arrested for selling illegal drugs. He was subsequently convicted and sentenced to an active prison sentence. Wendy identified respondent as the father of the minor child but refused to cooperate with DSS in locating him due to her stated fear of respondent. On 23 April 2004, Wendy stipulated to neglect and the court entered an order adjudicating the minor child as neglected. Respondent was not present at the hearing because he was not served with a petition until 3 November 2004. At that time, he was incarcerated and had never seen the minor child. In May of 2005, respondent requested a paternity test, which determined he was the biological father of D.Z.F. Respondent was notified of various court proceedings related to D.Z.F., but never contacted DSS.
    On 1 March 2005, DSS filed a motion to terminate respondent's parental rights on grounds of neglect and abandonment of the minor child. The motion further alleged the minor child had been placed in the custody of DSS for a continuous period of six months preceding the filing of the motion, that D.Z.F. was born out of wedlock and that respondent had not legitimated the child. Themotion also sought to terminate Wendy's parental rights for both her minor children.
    On 1 November 2005, the trial court entered an order terminating the parental rights of both parents. Wendy did not appeal from the order and is not a party to the instant case. Respondent's parental rights were terminated on grounds that he neglected, abandoned, and failed to legitimate the minor child. From that order, respondent appeals. On appeal, respondent argues the trial court erred in entering several findings of fact and conclusions of law, and in determining it was in the best interests of the minor child to terminate respondent's parental rights.
    Termination of parental rights is a two-step process that requires this Court to apply two separate standards of review. There is an adjudicatory phase, governed by N.C. Gen. Stat. . 7B-1109(e) (2005), followed by a dispositional phase, governed by N.C. Gen. Stat. . 7B-1110 (2005). In the adjudicatory phase, the trial court's findings must be supported by clear, cogent, and convincing evidence, and the findings must support a conclusion that at least one statutory ground for termination of parental rights exists. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d 403, 406 (2003). “Clear, cogent and convincing evidence describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” The N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323 (1985). In the dispositional phase, the trial court considers the best interests of the child. We review thisdetermination for an abuse of discretion. Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407. Reversal for abuse of discretion is limited to instances where the appellant can show the judge's decision is “manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
    A court may terminate the parental rights of a father of a juvenile born out of wedlock upon a finding the father has not, prior to the filing of the petition 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).
    “Upon a finding that the putative father has not attempted any of the four possible ways to legitimate his child, the trial court may terminate parental rights.” In re Hunt, 127 N.C. App. 370, 373, 489 S.E.2d 428, 430 (1997). However, the trial court must make findings that the putative father has not complied with any ofthe statute's four subsections. In re Harris, 87 N.C. App. 179, 188, 360 S.E.2d 485, 490 (1987).
    Respondent correctly notes that the trial court made no finding that he failed to legitimate the child by marriage to the child's mother. Although there is nothing in the record to suggest he and Wendy were married, it was error for the trial court to terminate the respondent's parental rights on this ground, since failure to legitimate the child is one of the statutorily-required findings that was not made.
    However, in a termination proceeding the court's findings only need to support a conclusion that at least one statutory ground exists. Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406. In the case sub judice, the trial court found grounds for termination beyond respondent's failure to legitimate the minor child. Specifically, the trial court terminated respondent's parental rights on the grounds of neglect and abandonment. North Carolina General Statute . 7B-1111(a)(1) (2005) allows a trial court to terminate a parent's parental rights on the basis of neglect. “The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.” Id. North Carolina General Statute . 7B-101(15) (2005) defines a neglected juvenile as follows:
        A juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in anenvironment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

Id.

    Similarly, N.C. Gen. Stat. . 7B-1111(7) (2005) allows termination of parental rights on the grounds of abandonment. “The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B-500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.” Id.
    The record contains evidence supporting a determination that the respondent not only neglected the minor child with a likelihood of repetition of neglect, but also that respondent abandoned the minor child. Although respondent has assigned error to numerous findings of fact, we need not address whether each assignment of error was supported by clear, cogent, and convincing evidence because we determine that there is ample evidence in the record to support both neglect and abandonment. Finding of fact 50 states as follows:
        50. Respondent had knowledge of the juvenile, was acquainted with the circumstances of the mother and her parenting skills and abilities. He failed to assist the mother with caring for his son. After knowledge of DSS involvement in November 2004, he failed to take action to care for the juvenile or make any plan for hissupport and/or care. Such actions were willful; he could have taken some parental action.

    We determine that this finding is supported by clear, cogent, and convincing evidence in that respondent was made aware of his obligations as the minor child's father and also was regularly updated on the child's conditions. Respondent was served with a petition in November of 2004 and after requesting a paternity test, learned he was the minor child's father. Despite this knowledge, respondent never contacted DSS about a plan for parenting D.Z.F. When the termination order was filed, respondent had never even seen the child. These facts are set forth in finding of fact 42, which is not contested by respondent and is binding on appeal. This finding, as well as finding of fact 50, constitute clear, cogent, and convincing evidence that respondent neglected and abandoned the minor child. Since the findings support a conclusion that at least one statutory ground for termination of parental rights exists, this assignment of error is overruled.
    We next review the dispositional phase to determine whether the trial court erred in ordering that it was in the best interests of the child to terminate respondent's parental rights. As previously stated, our standard of review for concluding that a trial court abused its discretion is to determine if the court's decision was “manifestly unsupported by reason.” Here, the trial court determined that the minor child was in need of stability and a plan of adoption would be in the child's best interests. This decision was based on factors including respondent's willfulabandonment and neglect of the minor child, as well as the likelihood of a repetition of neglect.
    Respondent, by his actions, demonstrated no ability or interest in providing the appropriate stability and care for D.Z.F. In light of all the facts before us, we determine the trial court's decision to terminate respondent's parental rights was not an abuse of discretion. Accordingly, this assignment of error is overruled.
    Affirmed.
    Judges GEER and JACKSON concur.
    Report per Rule 30(e).
    

*** Converted from WordPerfect ***