NO. COA06-1238
Appeal by Respondent-father from orders entered 21 June 2006
by Judge Jimmy L. Love, Jr., in District Court, Johnston County.
Heard in the Court of Appeals 19 February 2007.
Law Office of Sally Scherer, by Sally Scherer, for Petitioner-
appellee.
Michael E. Casterline, for Respondent-appellant.
WYNN, Judge.
Our legislative policy regarding termination of parental
rights recognizes a “necessity for any juvenile to have a permanent
plan of care at the earliest possible age.”
(See footnote 1)
Here, Respondent-
father contends that terminating his rights was not necessary to
achieve a permanent plan of care since Petitioner (the minor
children's maternal aunt) already had legal custody of the
children. Because the trial court found clear, cogent, and
convincing evidence that the minor children were in need of a
permanent plan of care at the earliest possible age, we affirm the
trial court's order of termination. This appeal arises from an order terminating the rights of
Respondent-Father to his two minor children. Respondent-Father and
the children's mother began living together when they were
respectively eighteen and seventeen years old. Respondent-Father
killed the children's mother in 2003, while the children were the
ages of twenty-two months and eleven months. Petitioner took
custody of the two minor children in March of 2003.
In January 2005, Respondent pled guilty to voluntary
manslaughter and was sentenced to an imprisonment term of eight and
one half to eleven years.
In May 2005, Petitioner filed separate petitions to terminate
Respondent's parental rights of the two minor children. Petitioner
was awarded permanent custody of the two minor children in
February 2006. Thereafter, by orders filed on 21 June 2006, the
trial court terminated Respondent's parental rights based on the
statutory grounds set forth in sections 7B-1111(a)(1)(neglect); 7B-
1111(a)(5)(d)(failure to provide substantial support or consistent
care); 7B-1111(a)(6)(dependent); and 7B-1111(a)(7)(willfully
abandon). Respondent appeals.
Respondent's sole issue on appeal is whether the trial court
erred in terminating his rights because termination was not
necessary to achieve a permanent plan of care since Petitioner
already had legal custody of the children.
"The standard of review in termination of parental rights
cases is whether the findings of fact are supported by clear,cogent and convincing evidence and whether these findings, in turn,
support the conclusions of law." We then consider, based on the
grounds found for termination, whether the trial court abused its
discretion in finding termination to be in the best interest of the
child.
In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6
(2004) (citations omitted).
Respondent does not challenge the findings of fact in the
termination orders; therefore, the findings are
presumed to be
correct and supported by the evidence.
In re Moore, 306 N.C. 394,
293 S.E.2d 127 (1982).
A review of the record and transcript shows
each of the trial court's findings is based upon orders entered in
the case and testimony from a former police officer with the
Plymouth Police Department, the Guardian ad Litem, the minor
children's clinical social worker, Petitioner, another maternal
aunt, Respondent and Respondent's mother.
The trial court's findings of fact demonstrate Respondent and
the deceased mother relied on family members for financial support
throughout their relationship; Respondent had numerous jobs and was
also in and out of jail on various charges during the relationship;
Respondent and the deceased mother were involved in a domestic
dispute on 23 February 2003; Respondent left the mother dying or
dead in the home with the children; police found the oldest child
in the living room and the youngest child on a bed at the feet of
deceased mother; Respondent was incarcerated on 27 February 2003
and pled guilty to voluntary manslaughter on 26 January 2005; and
Respondent did not correspond with his children after Petitionerwas awarded custody of the children although no court orders
prevented Respondent from doing so.
Since the trial court's findings are supported by clear,
cogent and convincing evidence, and that these findings support the
court's conclusion that Respondent was subject to having his
parental rights terminated pursuant to N.C. Gen. Stat. § 7B-1111
(a)(1), we reject this assignment of error.
Furthermore,
we reject Respondent's argument that severance of
the children's relationship with the father was unnecessary.
Respondent is correct that our legislature recognizes the necessity
for any child to have a permanent plan of care at the earliest
possible age, while at the same time recognizing the need to
protect all children from the unnecessary severance of a
relationship with biological or legal parents.
See N.C. Gen. Stat.
§ 7B-1100 (2006). However, "the 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. 101, 109, 316 S.E.2d 246,
251 (1984).
"The trial court's decision to terminate parental
rights is reviewed [for] an abuse of discretion[.]"
In re Yocum,
158 N.C. App. 198, 206, 580 S.E.2d 399, 404 (2003).
Respondent
fails to show, nor do we find, that the trial court abused its
discretion in terminating his parental rights.
See Dept. of Social
Services v. Roberts, 22 N.C. App. 658, 207 S.E.2d 368 (1974).
In addition to the findings of fact recited above, the trial
court entered additional findings of fact in support of itsdetermination that termination was in the best interests of the
child. These findings state that the children have been living
with Petitioner since 2003; that Petitioner's home is appropriate
and that the children have their own rooms. Further, Petitioner
takes both children to therapy for post-traumatic stress disorder
and the children are improving. The court also found that “the
condition of the biological father has been such as to demonstrate
that the biological father will not promote the healthy and
orderly, physical and emotional well being of the minor
child[ren].” Finally, the trial court found that the children were
in “need of a permanent plan of care at the earliest possible age
which can be obtained by severing the relationship between the
child and the biological father[.]”
We hold that the trial court did not abuse its discretion in
determining that termination was in the best interests of M.S.M.
and M.S.M. Accordingly, the trial court orders terminating
Respondent's rights are,
Affirmed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
Footnote: 1