Opinion
No. COA03-283
Filed 5 August 2003 This case not for publication
Appeal by respondent from an order entered 25 October 2002, nunc pro tunc 24 October 2002, by Judge Alonzo Coleman in District Court, Chatham County. Heard in the Court of Appeals 21 July 2003.
Lunday A. Riggsbee for petitioner-appellee Chatham County Department of Social Services. Karen Davidson for guardian ad litem. Peter Wood for respondent-appellant.
Chatham County No. 01 J 127.
Respondent is the father of Luis David Ascencio (Luis), who was born on 28 July 1998. Luis was placed in the custody of the Chatham County Department of Social Services (DSS) on 29 March 2001 after his mother relinquished him for adoption. Respondent pled guilty on 17 September 2001 to charges of attempted first degree sexual offense and indecent liberties with a child, his son Luis. Petitioner was sentenced to a term of 94 to 122 months' imprisonment.
A petition to terminate respondent's parental rights was filed by DSS on 9 November 2001, alleging that respondent had abused and neglected Luis. The petition specifically alleged that respondent had: (1) sexually and physically abused Luis; (2) been abusive to Luis' mother; (3) abused alcohol and drugs; and (4) abandoned Luis. DSS alleged that it was in the child's best interest that respondent's parental rights be terminated.
A hearing was held on 24 October 2002 on the petition to terminate respondent's parental rights. During the hearing, respondent sought to introduce the testimony of his sister, Lydia Chica, regarding placement of Luis in Ms. Chica's home. However, the trial court refused to allow Ms. Chica to testify "unless [she was] going to testify about the relationship between this father and this son." Respondent made a proffer of what Ms. Chica's testimony would be. Defendant's counsel stated that Ms. Chica would testify that, if Luis were placed in her home, she would not let him see respondent and that he would be in a stable and loving home.
The trial court found that grounds existed for the termination of respondent's parental rights. Specifically, the trial court found that respondent had: (1) sexually abused Luis; (2) been convicted of attempted first degree sexual offense and indecent liberties with a child; (3) physically abused Luis; (4) physically abused Luis' mother; (5) abused drugs and alcohol; (6) placed cocaine on Luis' mouth; (7) tried to get Luis' mother to use drugs; (8) informed a social worker after Luis' mother relinquished Luis for adoption, that he did not want any information about the child, and that Luis needed a good home; and (9) abandoned Luis. The trial court determined that it was in the best interests of Luis that respondent's parental rights be terminated. Respondent appeals.
Respondent first argues that the trial court erred by refusing to allow him to present his sister's testimony during the best interests phase of the hearing on the petition to terminate his parental rights. Respondent contends that he "should also have the right to `paint a picture' of what is in his child's best interest."
After careful review of the record, briefs and contentions of the parties, we affirm the trial court's termination of respondent's parental rights. A termination of parental rights proceeding is conducted in two phases: (1) the adjudication phase set forth in N.C. Gen. Stat. § 7B-1109 and (2) the disposition phase set forth in N.C. Gen. Stat. § 7B-1110. See In re Brim, 139 N.C. App. 733, 738, 535 S.E.2d 367, 370 (2000). During the adjudication stage, petitioner has the burden of proof by clear, cogent, and convincing evidence that one or more of the statutory grounds set forth in N.C. Gen. Stat. § 7B-1111 for termination exists. See N.C. Gen. Stat. 7B-1109(e)-(f) (2001). The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
If petitioner meets its burden of proof that grounds for termination exist, the trial court then moves to the disposition phase and must consider whether termination is in the best interests of the child. See N.C.G.S. § 7B-1110(a) (2001). During the disposition phase:
Either party may offer relevant evidence as to the child's best interests. Such evidence may therefore include facts or circumstances demonstrating either: (1) the reasonable progress of the parent, or (2) the parent's lack of reasonable progress that occurred before or after the twelve-month period leading up to the filing of the petition for termination of parental rights.
In Re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86-87 (2002) (citing In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001)). In this case, the evidence proffered by respondent was not relevant to the issue of whether it was in the juvenile's best interests that respondent's parental rights be terminated. Instead, respondent sought to introduce evidence that his sister be considered as placement for Luis. This assignment of error is overruled.
Respondent next argues that the trial court erred by basing its decision to terminate respondent's parental rights on facts not in evidence. At the conclusion of the evidence, the trial court stated that it had "sent out [its] distress call" and put the court "at ease" until an answer was received. After a break, the trial court ruled that respondent's parental rights should be terminated. The court then stated that:
I will tell all of you, of course, that I went and consulted with someone that I consider to be very reliable in case stuff like this to help me out.
Respondent contends that the trial court called its own witness and based its decision on this witness. Respondent argues that he was not afforded a meaningful opportunity to cross-examine this witness or to respond to the witness's comments. Respondent asserts that his rights to procedural due process were therefore violated.
"The presumption is in favor of the correctness of the proceedings in the trial court, and the burden is on the appellant to show error." In re Moore, 306 N.C. 394, 403, 293 S.E.2d 127, 132 (1982) ( citing London v. London, 271 N.C. 568, 157 S.E.2d 90 (1967)); Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967)). The record in this case does not show to whom the trial court was referring, or what the subject of the communication was. However, there is nothing in the record to support respondent's contention that the court called a witness outside the record in search of evidence relevant to the termination of respondent's parental rights. Instead, it appears that the court was seeking clarification of a procedural issue, i.e., whether respondent was entitled to present evidence regarding future placement of the juvenile during the best interests phase of the hearing. This was a legal issue not subject to cross-examination by respondent. Respondent has failed to meet his burden of showing error in the hearing. The order terminating respondent's parental rights is affirmed.
Affirmed.
Judges HUDSON and GEER concur.
Report per Rule 30(e).