Opinion
No. COA13–117.
2013-06-4
In the Matter of D.K., Durham County a Minor Child.
Durham County Attorney's Office, by Robin K. Martinek, Assistant County Attorney, for petitioner-appellee, Durham County Department of Social Services. Mercedes O. Chut for respondent-appellant.
Appeal by respondent from order entered 1 November 2012 by Judge Brian C. Wilks in Durham County District Court. Heard in the Court of Appeals 6 May 2013. Durham County Attorney's Office, by Robin K. Martinek, Assistant County Attorney, for petitioner-appellee, Durham County Department of Social Services. Mercedes O. Chut for respondent-appellant.
Melanie Stewart Cranford for guardian ad litem.
DAVIS, Judge.
Respondent-father (“respondent”) appeals from the trial court's order terminating his parental rights to his son, D.K. (“David”). After careful review, we affirm the trial court's order.
The pseudonym “David” is used throughout this opinion to protect the privacy of the minor child and for ease of reading. N.C. R.App. P. 3. 1(b).
Factual Background
On 25 August 2010, Durham County Department of Social Services (“DSS”) filed a juvenile petition alleging that David was a dependent juvenile. David was adjudicated to be dependent in an order entered on 16 November 2010. The trial court determined that David's mother was unable to provide the necessary level of care that David required as a premature infant and that David's father, who had been recently released from incarceration, was also not able to adequately care for him. The trial court further determined that it was in David's best interest that paternity be established and ordered the parents to “cooperate in addressing the issue of paternity.”
David's mother voluntarily relinquished her parental rights and is not a party to this appeal.
At a review hearing held on 18 January 2011, DSS reported that respondent did not attend a scheduled meeting with a DSS social worker and that between 18 October 2010 and 9 November 2010, he participated in only two scheduled visits with David. On the first visit, respondent arrived late after receiving two calls from the social worker inquiring as to whether he would be coming. DSS reported that respondent visited with David a second time while attending a Child Family Teams (“CFT”) meeting before he was arrested on 9 November 2010. Based on DSS's report, the trial court determined that respondent was “not in compliance with any provisions of the most recent order.” A permanency planning hearing was held on 9 August 2011. The trial court determined once again that respondent was not in compliance with any of the terms of its most recent order and ordered him to complete a parenting program and a psychological evaluation. At the permanency planning hearing, the trial court ultimately ordered a permanent plan of adoption with a concurrent plan of guardianship with a court-approved caretaker.
On 29 November 2011, DSS filed a motion to terminate respondent's parental rights to David, alleging the following grounds for termination: (1) neglect; (2) failure to make reasonable progress; (3) failure to pay a reasonable portion of the costs of child care despite the ability to do so; (4) failure to establish paternity, legitimate the child, or provide financial support or consistent care to the child or mother; and (5) willful abandonment. The motion was heard on 14 September 2012, and an order terminating respondent's parental rights was entered on 31 October 2012.
The trial court determined that four statutory grounds for termination existed: (1) failure to make reasonable progress; (2) failure to pay a reasonable portion of cost of care for the child; (3) willful abandonment of the child; and (4) failure to establish paternity, legitimate the child, or provide financial support or consistent care to the child or mother. Respondent gave timely notice of appeal.
Analysis
A proceeding to terminate parental rights is a two-step process involving an adjudication phase and a disposition phase. In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). During the adjudication phase, the trial court must determine whether the petitioner has established—by clear, cogent, and convincing evidence—that at least one of the ten grounds for termination enumerated in N.C. Gen.Stat. § 7B–1111 exists. Id. If the court determines that the existence of a statutory ground for termination was established, it then moves to the disposition phase where it considers whether termination of parental rights is in the best interest of the juvenile. Id.
In this case, respondent only challenges the trial court's findings of fact and conclusions of law concerning the adjudication phase of the termination proceeding. We review a trial court's order terminating parental rights to determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings, in turn, support its conclusions of law. In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6,disc. review denied,358 N.C. 543, 599 S.E.2d 42 (2004). “Findings of fact supported by competent evidence are binding on appeal even if evidence has been presented contradicting those findings.” In re L.H., 210 N.C.App. 355, 362, 708 S.E.2d 191, 196 (2011).
Respondent contends that the trial court erred in concluding that statutory grounds for termination existed. In its order, the trial court determined that respondent's parental rights as to David were subject to termination based on four grounds: (1) willful failure to pay a reasonable portion of the juvenile's care under § 7B–1111 (a)(3); (2) willful abandonment under § 7B–1111(a)(7); (3) failure to make reasonable progress under § 7B–1111(a)(2); and (4) failure to establish paternity, legitimate the juvenile, or provide support or care under § 7B–1111(a)(5). Respondent challenges each of these grounds for termination.
In termination of parental rights proceedings, the trial court's “finding of any one of the ... enumerated grounds is sufficient to support a termination.” In re J.M.W., E.S.J.W., 179 N.C.App. 788, 791, 635 S.E.2d 916, 918–19 (2006). Thus, if we determine that any one of the statutory grounds under § 7B–1111(a) is supported by findings of fact based on competent evidence, we need not address the other grounds. In re D.H.H., 208 N.C.App. 549, 552, 703 S.E.2d 803, 805–06 (2010) (citing In re Humphrey, 156 N .C.App. 533, 540, 577 S.E.2d 421, 426–27 (2003)). After careful review of the record, we conclude that the trial court's findings of fact support at least two of the grounds for termination—failure to make reasonable progress and failure to establish paternity, legitimate David, or provide financial support or consistent care to David or his mother.
I. Failure to Make Reasonable Progress
Under N.C. Gen.Stat. § 7B–1111(a)(2), parental rights may be terminated if the trial court determines by clear, cogent, and convincing evidence that (1) the child has been willfully left by the parent in foster care for over 12 months and (2) as of the time of the hearing, the parent has failed to make reasonable progress under the circumstances to correct the conditions which led to the child's removal from the home. In re O.C. & O.B., 171 N.C.App. 457, 464–65, 615 S.E.2d 391, 396,disc. review denied,360 N.C. 64, 623 S.E.2d 587 (2005).
The trial court made the following findings of fact addressing this ground for termination:
6. The child has been in the custody of the Durham County Department of Social Services (hereinafter Durham DSS) since August 25, 2010. The child has remained continuously in foster care up to the hearing on this date.
7. At the time the child came into the custody of Durham DSS, [respondent] was in jail. He was released on or about October 10, 2010. On November 9, 2010, [respondent] was arrested for a probation violation.
8. On or about October 12, 2010, and October 21, 2010, hearings were held on the adjudication and disposition of the minor child, and the minor child was found to be dependent. As part of disposition, [respondent] was ordered to have a mental health evaluation and complete a parenting program. [Respondent] did not attend either hearing; however, he was aware of the recommendations for services based on conversations he had with Quincy Dowden, the social worker assigned to the case until August 2012.
9. Between October 10, 2010, and November 9, 2010, [respondent] could have participated in approximately five visitations, which were two hours each. Of those five visitations, he only participated in two visitations, and he was half an hour late for at least one of them.
10. Between October 10, 2010, and November 9, 2010, [respondent] did not participate in any services recommended by DSS or ordered by the Court.
11. [Respondent] has been incarcerated since his November 9, 2010 arrest and his projected release date is August 14, 2013, with a minimum release date of April 13, 2013. [Respondent] is in the Polk Youth Institute.
....
17. Over the course of the entire time that the minor child has been in the custody of the Durham DSS, [respondent] has sent one letter to the child by giving it to the Mother to deliver without knowing whether she was having visitation with the child or confirming that the letter was delivered to the child. [Respondent] was aware that the child was in Durham DSS custody and was aware of the address of Durham DSS and the social worker Quincy Dowden.
18. While incarcerated at Polk Youth Institute, [respondent] participated in the GED program until July 8, 2012. [Respondent] stated that was the only program he was interested in.
19. [Respondent] was aware that he could have participated in therapeutic counseling, parenting classes and anger management, but did not participate in those programs.
20. Since he has been in Polk Youth Institute, [respondent] has not made any requests to exercise visitation with [David].
....
23. [Respondent] has willfully left the child in foster care for more than twelve (12) months without showing to the satisfaction of the Court that reasonable progress under the circumstances has been made in correcting those conditions which led to the removal of the child.
Respondent argues that findings of fact 9, 17–20, and 23 are not supported by clear, cogent, and convincing evidence. We disagree.
Quincy Dowden (“Dowden”), the DSS social worker assigned to David's case from August 2010 until August 2012, testified at the hearing that he arranged visitation so respondent could see David once he was released from prison. Under the visitation agreement, respondent was entitled to weekly visitation with David. Dowden testified that respondent made only two visits during the four to five week period when he was not incarcerated. Dowden further testified that respondent was approximately half an hour late to one of the visits. Dowden also stated that respondent did not begin parenting classes or submit to a mental health evaluation while he was out of prison nor did respondent ask for his assistance in enrolling in a parenting class at the prison. Dowden testified that respondent wanted to see his son but also testified that respondent had never requested telephone contact with David or sent letters to David through him. When asked about whether respondent had sought information about the various programs offered at Polk Youth Institute, Dowden replied that “[t]he only thing we discussed about programs was the GED program.”
Respondent also testified at the termination proceeding. He stated that he had participated in the GED program and was aware that Polk Youth Institute offered therapeutic counseling but had never participated in such counseling. He stated that he had asked his case manager about parenting classes but had never enrolled in or attended a class.
We believe that Dowden's and respondent's testimony support findings of fact 9, 17–20, and 23. As respondent does not contest findings 6–8, 10, and 11, these findings are presumed to be supported by competent evidence and, therefore, are binding on appeal as well. In re Y.Y.E.T, 205 N.C.App. 120, 127, 695 S.E.2d 517, 522 (2010).
The trial court's order adjudicating David to be a dependent juvenile and placing him in DSS custody designated respondent's incarceration as one of the factors that led to its decision to remove David from the home. “[I]ncarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care.” In re Harris, 87 N.C.App. 179, 184, 360 S.E.2d 485, 488 (1987), superseded by statute on other grounds as stated in In re D.J.D., 171 N.C.App. 230, 615 S.E.2d 26 (2005). Rather, “[w]illfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.” In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175 (2001).
The trial court ordered respondent to submit to a mental health evaluation and complete a parenting class, determining that
[i]t is in the best interests of the child and will serve to remedy a condition which led or contributed to the adjudication or to the court's decision to remove custody that [respondent] have a mental health evaluation and follow any recommendations for treatment and attend and complete a parenting program[.]
Respondent did not submit to a mental health evaluation nor did he attend or complete a parenting class. In its order terminating respondent's parental rights, the trial court took judicial notice of the decretal portions of its prior orders and made findings noting respondent's failure to comply.
The trial court made factual findings supported by clear, cogent, and convincing evidence supporting its conclusion that respondent willfully left David in foster care without making reasonable progress in correcting the conditions that led to David's placement in DSS custody. Accordingly, we affirm the trial court's order on this ground.
II. Failure to Establish Paternity, Legitimate, or Provide Support
Pursuant to N.C. Gen.Stat. § 7B–1111(a)(5), the trial court may terminate parental rights if
[t]he 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 response.
While there is no evidence in the record that the trial court inquired as to whether an affidavit of paternity had been filed with the Department of Health and Human Services, respondent admitted at the hearing that he never filed such an affidavit. See In re I.S., 170 N.C.App. 78, 86, 611 S.E.2d 467, 472 (2005) (acknowledging that a respondent's stipulation that he had not filed an affidavit of paternity was sufficient to establish that such an affidavit was never filed).
(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.
When a trial court terminates parental rights based on § 7B–1111(a)(5), the court must make “specific findings of fact as to all four subsections and the petitioner bears the burden of proving the father has failed to take any of the four actions.” In re I.S., 170 N.C.App. 78, 88, 611 S.E.2d 467, 473 (2005). Here, the trial court made the following of findings of fact regarding termination under § 7B–1111(a)(5):
15. [Respondent] was not married to the Mother at the birth of [David] and has not since married the Mother.
16. [Respondent] has not taken any action to legitimate the minor child [David].
....
25. The child was born out of wedlock, and his father [Respondent] has not prior to the filing of this 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]; (b) legitimated the child pursuant to the provisions of G.S. 49–10 or filed a petition for this specific purpose; or (c) legitimated the child by marriage to the mother of the child; or (d) provided substantial support or consistent care with respect to the child and his mother.
With regard to the above findings, respondent only challenges finding of fact 25. Thus, findings of fact 15 and 16 are binding on appeal. See In re I.T.P–L., 194 N.C.App. 453, 462, 670 S.E.2d 282, 287 (2008) (“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.”) (citation and quotation marks omitted).
Respondent initially challenges finding of fact 25 based on his contention that it is a conclusion of law rather than a finding of fact. “As a general rule ... any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law. Any determination reached through logical reasoning from evidentiary facts is more properly classified a finding of fact.” In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (internal citations and quotation marks omitted). A determination that a respondent took no action under any of the subsections of § 7B–1111(a)(5) requires both logical reasoning from evidentiary facts and the application of a statute. Thus, finding of fact 25 is both a factual finding and a conclusion of law.
Each portion of finding of fact 25 is supported by clear, cogent, and convincing evidence in the record—namely respondent's own testimony at the termination proceeding. Respondent testified that (1) he was never married David's mother; (2) to his knowledge, his name was not on David's birth certificate; (3) he did not file a legal action establishing paternity; (4) he has not filed an affidavit of paternity; (5) he has not provided any financial support to David; and (6) other than submitting to a court-ordered paternity test, he has done nothing to legitimate David.
Based on findings of fact 15, 16, and 25, the trial court determined in conclusion of law 5 that David was born out of wedlock and that respondent had not, prior to the filing of the petition (1) established paternity either judicially or by affidavit; (2) legitimated David by marriage to the mother; (3) legitimated David under N.C. Gen.Stat. § 49–10; or (4) provided financial support or consistent care to David or his mother.
Respondent contends that the trial court erred in relying on this ground for termination because paternity was, in fact, judicially established. Specifically, he argues that because he submitted to a paternity test and because the trial court referred to respondent as David's father in its orders, paternity was judicially established. We disagree.
Although the trial court referred to respondent as David's father in its 16 November 2010 order adjudicating David to be a dependent juvenile, the trial court also determined in that same order that “[i]t is in the best interests of the child. that paternity be established.” Thus, respondent's paternity was clearly not judicially established at this point.
The evidence at the termination proceeding indicated that a paternity test was performed in December 2010 and indicated a 99.99% probability that respondent was David's father. Neither of the trial court's review orders, entered 9 February 2011 and 9 August 2011, addressed this paternity test or made any factual findings regarding respondent's paternity. Thus when DSS petitioned for termination of parental rights on 29 November 2011, respondent's paternity had not been judicially established.
Respondent's reliance on Helms v. Landry, 363 N.C. 738, 686 S .E.2d 674 (2009); State ex rel. Hill v. Manning, 110 N.C.App. 770, 431 S.E.2d 207 (1993); and In re J.K.C. & J.D.K., ––– N.C.App. ––––, 721 S.E.2d 264 (2012), is misplaced. Both Helms and Hill are child support cases that involved specific adjudications of paternity that had been made by a trial court. Conversely, the trial court in the present case never made such a determination.
In J.K.C., we held that a “birth certificate bearing the respondent's name as father of the child is the creation of a rebuttable presumption that the respondent has in fact established paternity of the child either judicially or by affidavit as required by N.C. Gen.Stat. § 7B1111(a)(5)(a).” J.K.C., –––N.C.App. at ––––, 721 S.E.2d at 274. We concluded that the evidence in that case indicated the respondent's paternity had been judicially established prior to the filing of the petition to terminate his parental rights.
In the present case, respondent testified that, to his knowledge, his name was not on David's birth certificate. Thus, no presumption of judicially established paternity existed. Respondent's testimony at the hearing also established that he had not (1) filed an affidavit of paternity with the Department of Health and Human Services; (2) legitimated David pursuant to the provisions of N.C. Gen.Stat. § 49–10; (3) legitimated David by marrying David's mother; or (4) provided substantial financial support or consistent care to David or his mother. As there was competent evidence supporting a determination that respondent had failed to establish paternity under any of the four subsections of § 7B–1111(a)(5), the trial court did not err in concluding that grounds for termination pursuant to this statutory provision existed.
Because we have determined that the trial court did not err in terminating respondent's parental rights under §§ 7B–1111(a)(2) and (5), we need not address the remaining grounds for termination found by the trial court.
Conclusion
For the reasons stated above, we affirm the trial court's order terminating respondent's parental rights.
AFFIRMED. Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).