I.
First, respondent contends the court erred in making findings
of fact that are not supported by clear, cogent and convincing
evidence. We disagree.
“On appeal, the trial court's decision to terminate parental
rights is reviewed on an abuse of discretion standard and we must
affirm where the court's findings of fact are based upon clear,
cogent, and convincing evidence and the findings support the
conclusions of law.” In re J.L.K., 165 N.C. App. 311, 317, 598
S.E.2d 387, 391 (2004), review denied, 359 N.C. 68, 604 S.E.2d 314
(2004), motion dismissed, 359 N.C. 281, 609 S.E.2d 773 (2005)
(internal citation and internal quotes omitted) (quoting In re
Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996)). Clear,
cogent, and convincing evidence is a standard of proof greater than
the preponderance of the evidence standard required in most civilcases but lesser than the standard of proof beyond a reasonable
doubt in criminal cases. In re Montgomery, 311 N.C. 101, 109-10,
316 S.E.2d 246, 252 (1984), later proceeding at, 77 N.C. App. 709,
336 S.E.2d 136 (1985). An appellate court is bound by the trial
judge's findings of fact “where there is some evidence to support
those findings, even though the evidence might sustain findings to
the contrary.” Montgomery, 311 N.C. at 110-11, 316 S.E.2d at
252-53 (citations omitted). In addition to considering testimony
and documentary evidence presented at the hearing, the court may
take judicial notice of prior orders. In re Shermer, 156 N.C. App.
281, 287, 576 S.E.2d 403, 407 (2003) (trial court took judicial
notice of past orders; past orders are relevant evidence in
termination proceeding).
Respondent contests the findings that: (1) he failed to pay a
reasonable portion of the cost of care of the child even though the
court also found he was current in his court-ordered support
obligation; (2) he is unable to provide independent housing for
himself and the child; (3) he “has probably been rehabilitated” but
may still have a drug problem; and (4) termination of his parental
rights will not create an unnecessary severance of the relationship
between him and the child despite the existence of a bond between
the two.
The trial court's findings of fact are summarized below.
Respondent's addiction to drugs affects his ability to care for the
minor child. Although respondent is current on his obligation to
pay a court-ordered $55.00 per month in child support, somepayments were paid on his behalf by his mother. Other than a
three-month period in mid-2006, respondent was unable to provide
independent, suitable housing for the minor child. He was evicted
from his most recent housing, where he lived from April 2006 until
one week prior to the termination hearing. Respondent relies on
his mother, friends and girlfriends to provide housing and does not
appear able to maintain housing on his own. Since he is unable to
provide housing for himself, he is unable to provide housing for
the minor child.
Respondent tested positive for illegal drugs as far back as
March of 2006. During the time the minor child was outside the
home, respondent had a history of going through drug rehabilitation
programs and relapsing. Respondent failed to explain why he missed
five of eight drug screens requested by DSS.
Respondent also did not maintain steady employment. Although
he held a job from April through September 2006, he lost that job
due to absenteeism. The court reasoned that if respondent was
unable to hold a job, as he demonstrated during the entire time the
minor child was placed with others, then he would be unable to
provide suitable housing, clothing, and food for the minor child.
We find adequate support for these findings in the testimony
of social workers and Mr. Foster. The testimony shows respondent
contributed to the support of the child by paying only $55.00 per
month toward the cost of care with his mother's help. According to
the allegations of the verified petition, the cost of caring for
the child is $7,200.00. Respondent failed to reimburse his motherfor expenses associated with caring for his child.
The longest time that respondent resided at any one place
prior to the filing of the termination petition, was when he was
enrolled in a drug treatment program that paid for his housing
while he received treatment. When not in treatment facilities for
substance abuse, he lived with his mother or female companions.
Respondent was evicted just before the termination hearing.
The social workers testified extensively regarding
respondent's lifelong history of abusing cocaine, marijuana and
alcohol. Respondent completed five to six inpatient drug treatment
programs prior to DSS involvement in 2004 and four more inpatient
drug treatment programs after DSS became involved. Within months
after completion of a treatment program, he relapsed. The social
workers testified that he last completed a drug treatment program
in September 2005, and attended no further inpatient treatment
programs or support groups after that date. He told a social
worker that after September 2005 he did not attend Narcotics or
Alcoholics Anonymous meetings because “he didn't feel like he
needed it.” Respondent tested positive for cocaine in August 2005.
He tested positive for marijuana in March 2006.
Respondent's substance abuse affected the child, who was aware
that respondent often left the house at night. While respondent
was away from the house, the child feared monsters and the dark.
In a reversal of parental roles, the child frequently worried about
respondent and his well being. Furthermore, respondent would call
DSS and request to see the child because “he was hurting and heneeded [the child] to make him feel better.”
The evidence of respondent's drug use and inability to
financially support his child satisfies the clear, cogent and
convincing evidence standard and supports the trial court's
findings of fact concerning respondent's failure to pay child
support, failure to provide independent housing, failure to
complete drug rehabilitation programs, and the finding that the
termination of parental rights is necessary. This assignment of
error is overruled.
II.
Respondent next contends the court erred in concluding that
clear, cogent and convincing evidence supported its conclusions
that grounds exist to terminate respondent's parental rights and
that termination of parental rights is in the child's best
interests. We disagree.
A.
To terminate one's parental rights, the petitioner must show
by clear, cogent and convincing evidence that a statutory ground to
terminate rights exists.
In re Young, 346 N.C. 244, 247, 485
S.E.2d 612, 614 (1997). The court's determination of the existence
of a ground is a conclusion of law.
In re Helms, 127 N.C. App.
505, 510, 491 S.E.2d 672, 675-76 (1997) (holding that determination
of neglect is a conclusion of law). “Our review of a trial court's
conclusions of law is limited to whether they are supported by the
findings of fact.”
Id.,
127 N.C. App. at 511, 491 S.E.2d at 676
(citing
In re Montgomery, 311 N.C. at 111, 316 S.E.2d at 253)
. The court found four statutory grounds under N.C. Gen. Stat.
§ 7B-1111(a) (2006) to terminate the parents' parental rights: (1)
the parents neglected the child; (2) the parents willfully left the
child in a placement outside the home for a period of more than
twelve months without showing the court that reasonable progress
was made to correct the conditions which led to the removal of the
child from the home; (3) the parents have, for a continuous period
of six months next preceding the filing of the petition, willfully
failed to pay a reasonable portion of the cost of care for the
child; and (4) the parents abandoned the child for at least six
months preceding the filing of the petition. The court concluded
that termination of the parents' parental rights was in the best
interests of the minor child. The court ordered termination of
their parental rights and ordered DSS to proceed with adoption
efforts.
Only one statutory ground is required to terminate parental
rights. N.C. Gen. Stat. § 7B-1111(a) (2006). The court found that
the respondent neglected the child. A neglected juvenile is one
“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 lives in an environment injurious
to the juvenile's welfare. . . .” N.C. Gen. Stat. § 7B-101(15)
(2006).
Prior to determining whether a child is neglected, and whether
a finding of fact supports a conclusion that the child is
neglected, the court considers evidence of prior neglect and eventsoccurring before and after an adjudication of neglect.
In re
Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232-33 (1984).
The evidence is overwhelming that respondent has suffered from
substance abuse for the majority of his life. He has been unable
to refrain from abusing drugs and alcohol for any longer than a few
months. In addition, he is unable to maintain a steady job and
stable housing due to his substance abuse. As a result, he has
been unable to care for the child, leading to the adjudication of
neglect. He relied upon his mother and the Fosters to care for the
child subsequent to the adjudication.
The first ground leads to the second ground for termination.
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) (2006), the court
concluded respondent willfully left the child in foster care or
placement outside the home for more than twelve months without
showing to the satisfaction of the court that reasonable progress
under the circumstances had been made in correcting the conditions
which led to the removal of the juvenile.
The willfulness required for a finding under § 7B-1111(a)(2)
is something less than willful abandonment and may be found even
when the parent has made some effort to regain custody but has
failed to show reasonable progress or positive response to efforts
of DSS to rectify the conditions.
In re B.S.D.S., 163 N.C. App.
540, 545, 594 S.E.2d 89, 93 (2004). “Extremely limited progress is
not reasonable progress.”
In re Nolen, 117 N.C. App. 693, 700, 453
S.E.2d 220, 224-25 (1995) (citing
In re Bishop, 92 N.C. App. 662,
670, 375 S.E.2d 676, 681 (1989)). As previously noted, respondent has a long history of drug
abuse. From the time DSS became involved with this family, DSS
requested that respondent undergo forty-two drug screens. For less
than half of the screens, respondent tested negative eleven times,
positive for cocaine six times, positive for marijuana twice, and
he altered one screen. Of the twenty-two screens he failed to
undergo, respondent admitted he would have tested positive on
twelve of them. He tested positive for marijuana as late as March
2006. Furthermore, he failed to maintain steady employment and
stable housing.
We therefore conclude the evidence and findings of fact
support the court's conclusions of law that grounds existed to
terminate respondent's parental rights. After determining that at
least two grounds exist, we need not consider the other grounds
found by the trial court.
See In re Davis, 116 N.C. App. 409, 413,
448 S.E.2d 303, 305 (1994) (holding that when grounds to terminate
exist under one subsection, no need to address whether termination
is proper under another subsection).
B.
The court concluded that termination of the parents' parental
rights was in the best interests of the minor child. Once a trial
court finds grounds exist to terminate parental rights, then the
trial court moves to the determination of the best interests of the
child.
In re Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406-07.
The determination of whether it is in the best interests of the
child to terminate parental rights is in the discretion of thetrial court and will not be disturbed absent an abuse of
discretion.
In re I.S., 170 N.C. App. 78, 89, 611 S.E.2d 467, 474
(2005) (citing
In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d
906, 910 (2001));
In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d
84, 88 (1996).
The trial court found that after visitations with respondent
the minor child required therapy. Once the visits ceased, the
minor child progressed to a point where the therapist advised Mr.
Foster that no future therapy was needed. Although respondent
loves the minor child, continuation of the parental relationship
will not provide stability and permanency for the minor child.
The minor child lived with the Fosters full-time from July
2003, with few interruptions, until March 2004, and then from
January 2005 until the present. The minor child is “extremely
happy” in the placement. The Fosters “appear to provide a loving
environment” for the minor child, who calls Mr. Foster her “dad[.]”
The minor child realizes respondent is her biological father but
her love and affection, as between a father and daughter, are
directed to Mr. Foster. The minor child views Mrs. Foster as her
mother. When the minor child was first placed with the Fosters at
age four, she was not potty trained or weaned from a bottle. Mrs.
Foster succeeded in potty training and weaning the minor child.
She considers the Fosters her parents and their son as her brother.
The child desires permanency and stability in her life.
The minor child told the social workers her desire to be
adopted by the Fosters. The minor child wants to be called by thesurname of Foster, and she writes that name on her papers at
school. Her school allows her to use a hyphenated name until she
is adopted. The minor child is adoptable and the Fosters are two
loving parents who are willing to adopt her. The Fosters have a
suitable home with enough room for the minor child and the
financial ability to assume responsibility for another child.
Based upon the trial court's findings we find no abuse of
discretion in the trial court's conclusion that termination is in
the child's best interests. This assignment of error is overruled.
III.
Respondent next contends the court erred in failing to conduct
the termination hearing within 90 days after the filing of the
petition to terminate parental rights. We disagree.
Pursuant to N.C. Gen. Stat. § 7B-1109(a), the adjudicatory
hearing in a proceeding to terminate parental rights must be held
within 90 days from the filing of the petition. N.C. Gen. Stat. §
7B-1109(a) (2006). However, the trial court has authority to
“continue the hearing for up to 90 days from the date of the
initial petition in order to receive additional evidence” and
conduct discovery. N.C. Gen. Stat. § 7B-1109(d) (2006). Reversal
of the trial court for failure to comply with the above time
limitation will result when the hearing is held “egregiously late.”
In re D.M.M.,
N.C. App.
,
, 633 S.E.2d 715, 717 (Sept.
5, 2006) (No. COA06-29). Reversal of a termination order for
failure to comply with a time deadline is improper unless prejudice
is shown.
In re As.L.G. & Au.R.G., 173 N.C. App. 551, 558, 619S.E.2d 561, 566 (2005),
reh'g granted by, 360 N.C. 289, 627 S.E.2d
618 (2006),
disc. review improvidently allowed, 360 N.C. 476, 628
S.E.2d 760 (2006),
motion granted by, __ N.C. __, __, 630 S.E.2d
671 (March 29, 2006) (No. 624PA05),
motion denied by, __ N.C. __,
__, __ S.E.2d __, __ (April 6, 2006).
Respondent has not presented any evidence that he was
prejudiced by the delay. The petition was filed on 15 June 2006
and the matter calendared for 6 September 2006, within the 90-day
period. The court continued the hearing on 6 September 2006 until
25 October 2006 because the time allotted for the mother to respond
to the petition had not expired. Respondent did not appear for
this hearing. The court entered a second continuance on 25 October
2006 until 29 November 2006, to permit the appointment of a
guardian ad litem for respondent. Although the hearing held on 29
November 2006 was outside the statutory time period allowed for the
court to continue the hearing, respondent has not shown he was
prejudiced by the delay. This assignment of error is overruled.
IV.
Respondent next contends the court erred by failing to file
the adjudication/termination and disposition order within thirty
days after the date of the hearing as required by N.C. Gen. Stat.
§ 7B-1109(e) (2006) and N.C. Gen. Stat. § 7B-1110(a) (2006). We
disagree.
Failure to file an order within this time limitation does not
invalidate the order unless prejudice resulting from the delay is
shown.
In re J.L.K., 165 N.C. App. at 316, 598 S.E.2d at 391(
delay of eighty-nine days was not prejudicial). “[A] trial
court's violation of statutory time limits in a juvenile case is
not reversible error
per se . . . . [T]he complaining party must
appropriately articulate the prejudice arising from the delay in
order to justify reversal.”
In re S.N.H. & L.J.H., 177 N.C. App.
82, 86, 627 S.E.2d 510, 513 (2006) (citations omitted).
Here, the hearing was conducted on 29 November 2006 and the
order was filed on 10 January 2007. Respondent fails to
“appropriately articulate” how he was prejudiced by a delay of
twelve days. We overrule this assignment of error.
V.
Respondent next contends the court violated his due process
rights by relying upon incompetent hearsay and testimony presented
without proper or sufficient foundation. We disagree.
Respondent lists under this assignment of error three
instances in which the court purportedly admitted incompetent
evidence. He excepts to testimony by a social worker that the
child said she wants to be adopted by the Fosters, testimony of Mr.
Foster that the child underwent an investigation for sexual abuse,
and testimony of Mr. Foster as to the effect respondent's behavior
has had upon the child. The court sustained respondent's objection
to Mr. Foster's testimony regarding an investigation into possible
sexual abuse of the child.
“The mere admission by the trial court of incompetent evidence
over proper objection does not require reversal on appeal.”
In re
Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000),
reviewdenied,
appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). In a
bench trial, the appellant must show the court relied upon the
incompetent evidence in making its findings of fact and must
overcome the presumption the court disregarded the incompetent
evidence.
Id.,
140 N.C. App. at 301, 536 S.E.2d at 846. Given the
overwhelming amount of other competent evidence to support the
court's findings of fact, we conclude this showing has not been
made and overrule this assignment of error.
VI.
Respondent's final contention is that the court erred by
denying his pretrial motion to dismiss the petition made on three
grounds: (1) the hearing was not held within 90 days from the
filing of the petition pursuant to N.C. Gen. Stat. § 7B-1109(a);
(2) the petition was not in compliance with N.C. Gen. Stat. § 7B-
1104 (2006); and (3) a special hearing was not held as provided by
N.C. Gen. Stat. § 7B-1108(b) (2006). We disagree.
As a preliminary matter, we must address respondent's failure
to specifically assert these three issues in his original Notice of
Appeal to this Court filed on 22 January 2007. Pursuant to Rule 3
of the North Carolina Rules of Appellate Procedure, the time and
manner for appeals in termination of parental rights cases are
governed by the North Carolina General Statutes § 7B-1113 (2006).
N.C. R. App. P. 3(b)(1)(2006). N.C. Gen. Stat. . 7B-1113 requires
that written notice of appeal be given within ten days of the entry
of the order terminating parental rights. N.C. Gen. Stat. §
7B-1113 (2006). In this case, respondent filed his Notice ofAppeal from the trial judge's Order on Motion to Dismiss
Termination of Parental Rights Petition entered on 29 November
2006. This Order does not assert the three issues respondent now
argues.
Respondent asks this Court to consider these issues as a
petition for writ of certiorari pursuant to N.C. R. App. P. 21
(2006). Such a writ “may be issued in appropriate circumstances by
either appellate court to permit review of the judgments and orders
of trial tribunals when the right to prosecute an appeal has been
lost by failure to take timely action. . . .” N.C. R. App. P.
21(a)(1) (2006).
Here, we note the serious consequences of the termination of
respondent's parental rights. See In re I.S., 170 N.C. App. 78,
84-85, 611 S.E.2d 467, 471 (2005). Therefore, we choose to grant
certiorari in this case and will consider respondent's three
arguments on the merits.
First, respondent contends the court erred by denying his
pretrial motion to dismiss the termination petition because the
hearing was not held within 90 days from the filing of the petition
as required by N.C. Gen. Stat. . 7B-1109(a) (2006).
We concluded under section III of this opinion that although
the 29 November 2006 hearing was held more than 90 days after
filing the initial petition, respondent failed to show how this
error resulted in prejudice to him. Because we find no prejudicial
error in continuing the hearing for more than 90 days of the filing
of the petition, the court's denial of respondent's pretrial motionto dismiss was not in error on this ground.
Respondent does not bring forward any argument in his brief
regarding the second ground and therefore abandons this ground.
N.C. R. App. P. 28(b)(6) (2006); In re B.D., 174 N.C. App. 234,
239, 620 S.E.2d 913, 916 (2005), disc. review denied, 360 N.C. 289,
628 S.E.2d 245 (2006).
Respondent asserts the court erred in not conducting a special
hearing required by N.C. Gen. Stat. § 7B-1108(b) when a respondent
files an answer and denies any material allegation of the petition
or motion. N.C. Gen. Stat. § 7B-1108(a) (2006). This statute
provides:
The court shall conduct a special hearing
after notice of not less than 10 days nor more
than 30 days given by the petitioner or movant
to the respondent who answered or responded,
and the guardian ad litem for the juvenile to
determine the issues raised by the petition
and answer or motion and response.
N.C. Gen. Stat. § 7B-1108(b) (2006).
In construing an earlier version of this statute, N.C. Gen.
Stat. § 7A-289.29(b), this Court noted the statute “does not
prescribe the exact form the special hearing is to take except that
it is to be used to determine the issues raised by the pleadings.”
In re Peirce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981).
We held the requirement of the special hearing may be satisfied by
the holding of a pre-trial hearing at which the issues for
resolution at trial may be identified. Id., 53 N.C. App. at 383,
281 S.E.2d at 204. Furthermore, we have held the failure to give
notice of the special hearing is not prejudicial when the answeringrespondent denies all of the material allegations of the petition,
thereby leaving no issues for pre-trial disposition by the court.
In re B.D., 174 N.C. App. at 240, 620 S.E.2d at 917.
In the case before us, respondent, in his answer, denied all
the material allegations of the petition and contested every ground
alleged for terminating his parental rights. Therefore, there were
no issues remaining for disposition at a special hearing. The day
before trial the court conducted a “pre-calendar call” during which
the parties agreed to set this case as the only one for trial on 29
November 2006. The day of trial, the court chastised respondent's
attorney for not bringing an oral motion to the court's attention
during the previous day's hearing, stating the court “possibly
could have heard [the motion]” at that time while all the parties
were present. Although the court did not expressly call it as
such, it appears the “pre-calendar call” hearing served the purpose
of a pre-trial hearing. We conclude the court did not err by
denying the motion to dismiss.
The order terminating respondent's parental rights is
affirmed.
Affirmed.
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
Footnote: 1