Opinion
No. COA04-233
Filed 18 January 2005 This case not for publication
Appeal by respondent-father from order entered 26 September 2003 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 3 January 2005.
Tyrone C. Wade, for petitioner-appellee. Carol Ann Bauer, for respondent-appellant.
Mecklenburg County, No. 03 J 40.
J.W. ("respondent"), the biological father of the juvenile ("B.R."), appeals from an order of the district court terminating his parental rights, pursuant to N.C. Gen. Stat. § 7B-1113 (2003).
B.R. was born prematurely to her mother ("the mother") on 3 December 2001. B.R. had cocaine in her system and weighed approximately four pounds. Mecklenburg County Department of Social Services (DSS) filed a petition alleging neglect and dependency and obtained nonsecure custody of B.R. on 7 December 2001, placing her in foster care. See N.C. Gen. Stat. §§ 7B-401, -402, -500 (2003). Although both respondent and the mother were served with a notice of hearing on 7 December 2001, their attorneys attended but they failed to attend the initial seven-day hearing on 11 December 2001. See N.C. Gen. Stat. § 7B-506 (2003). The district courtfound the "parents have shown little interest in caring for or parenting [B.R.,]" and ordered that DSS retain nonsecure custody of B.R.
An adjudicatory and dispositional hearing was held 24 January 2002. Again, neither parent attended. The district court entered an order adjudicating B.R. neglected and dependent and continuing B.R.'s foster care placement through DSS. The court's disposition included findings that respondent's attorney had been unable to contact him, that respondent and the mother "have shown no interest in [B.R.]'s care [and have] not appeared at any [court] hearings[,]" and that B.R.'s maternal grandmother "is not a placement option [because] she is already caring for [the mother's] two older children [and] cannot care for this child." The court scheduled a permanency planning hearing for 26 February 2002. It proscribed visitation until the parents appeared in court and directed the parents to contact DSS "if they wish to be involved [with B.R.'s] care."
Respondent and the mother attended the 26 February 2002 permanency planning hearing. Respondent requested a paternity test. The mother "indicate[d] to the court that she has begun to address her addiction problem" but "ha[d] not consistently followed through with treatment protocol[.]" The court declined to change the permanent plan to termination of parental rights as recommended by DSS but alerted the parents that they "must follow through with the case plan objectives [without] fail if they wish reunification to remain the goal." It ordered respondent to submit to apaternity test and a parenting evaluation and to comply with the case plan developed by DSS. Testing confirmed respondent's paternity of B.R. on 18 March 2002, and he was notified of the results on 11 April 2002.
The court held additional review hearings on 24 May 2002 and 12 July 2002 and entered orders maintaining the status quo. In its 12 July 2002 order, based upon the determination of respondent's paternity, the court authorized visitation between respondent and B.R. Respondent's visitation was suspended upon his arrest and confinement for attempted common law robbery on 12 September 2002. Respondent was released on 25 October 2002 but subsequently pled guilty to this offense and received an active prison sentence of fourteen to seventeen months.
The court changed the permanent plan from reunification to termination of respondent's and the mother's parental rights following a review hearing held 29 October 2002. In its review order, the court found the "parents have made little progress toward achieving case plan objectives." In addition to his incarceration on the attempted robbery charge, the court noted that respondent's parenting evaluation found he was "evasive [and] defensive" and unaware of "how to parent a small child." The order provided, however, that respondent was "free to comply [with the] case plan to satisfy [the] court of his ability to care for [B.R]."
DSS filed a petition to terminate parental rights on 14 January 2003, alleging, inter alia, the following grounds for termination: (1) the parents had neglected and abandoned B.R.; (2)the parents had willfully left B.R. in foster care for more than twelve consecutive months without reasonable progress in correcting the conditions which led to her placement; (3) the parents had willfully failed to pay a reasonable portion of the costs of B.R.'s care while in DSS custody; and (4) the parents were incapable of providing care and supervision for B.R. such that she was a dependent juvenile as defined by N.C. Gen. Stat. § 7B-101(9) (2003). See N.C. Gen. Stat. § 7B-1111(a) (2003).
The mother failed to attend the August 2003 termination hearing. Respondent testified, expressing his intention to find stable employment and provide for B.R. upon his release from incarceration in March of 2004. He asked the court to place B.R. with his mother, ("the grandmother"), "[u]ntil I can get out and provide for her." The grandmother testified that she came to the hearing "to see if I could get [B.R.], if it was too late for me to get her." The grandmother expressed her willingness to "keep [B.R.] until [respondent] got a full-time job and a place to stay." When asked why she had not come forward or contacted DSS at any time prior to the termination hearing, the grandmother claimed that the mother had told her she "was too old." The grandmother acknowledged she had seen B.R. only three times and had no familiarity with her developmental or educational needs.
In its order terminating respondent's parental rights, the court made the following findings of fact by clear, cogent, and convincing evidence:
24. . . . Since the 29 October, 2002 hearing, respondent father has not fully complied withthe case plan. He has sporadic employment, has been arrested for attempted common-law robbery, does not have stable housing and is not in a position to properly provide for the juvenile. He completed parenting classes on April 16, 2003.
. . .
26. That [respondent] admitted . . . that he consumes a six pack of beer three times a week. He has not participated in substance abuse treatment and continues to deny domestic violence though the mother has admitted domestic violence episodes.
27. . . . [R]espondent father is considerably unstable. He has a criminal history that has resulted in two years in prison. He was arrested once during the [parenting] evaluation and tested positive for cocaine. He has a questionable substance abuse history and has been unemployed for most of the past year. He has not demonstrated any stable characteristics that would enable him to be an appropriate consistent, available, involved organized parental figure in the life of the juvenile.
28. . . . [I]n order for respondent father to be an appropriate parental figure, he would have to demonstrate a two to three year pattern of stable employment and an absence of criminal behavior before being considered a responsible parenting figure for his daughter. . . . The respondent father has not refrained from criminal behavior. He is currently incarcerated on attempted common law robbery and continued to deny testing positive for cocaine. His explanation before the Court today is that his cocaine positive test was perhaps the result of eating sesame seeds.
29. That respondent father does not have stable employment and does not have stable housing. His expectation upon release from incarceration is to return to the home of his mother, [G.W.]
. . .
34. That both respondent parents have the ability to be gainfully employed; however, they have failed to maintain stable employment.
. . .
36. . . . [The grandmother] has raised another child of [respondent]'s, . . . who is now 17 years of age. [The grandmother] is 70 years of age and does not suffer from any disability. She has only seen [B.R.] three times since birth . . . [and] prior to the juvenile coming into foster care.
37. That respondent father has never asked or indicated that he wished to be the primary caretaker for his child. He has indicated his preference that either the mother or the grandmother be considered as the caretaker.
38. That both sets of grandparents were approached by the mother and father about caring for the child, but both declined to do so on a permanent basis.
39. That it has cost $38,740.96 to maintain the juvenile in foster care and neither parent has contributed any monies greater than zero to defray the cost of out of home placement.
. . .
41. The[parents] have not made substantial progress to complete the case plan objectives.
. . .
43. That respondent father was convicted of attempted common law robbery and began serving his prison term in February, 2003. His estimated release date is March, 2004.
. . .
45. That the juvenile is currently in foster care, where she is receiving adequate care, supervision and discipline, the juvenile has suffered developmental delays and her needs are being met.
46. That the foster parent[s] are participating in many services designed to meet her developmental and physical needs. The juvenile is bonded with the foster parent[s] and has been in that home since being placed in foster care. The home is an adoptive home and is a stable, loving environment.
47. That the Court specifically finds it is not able to place the juvenile with either parent after one year and eight months of foster care placement.
48. That the goal of the case is adoption and the Court specifically finds that adoption is in the juvenile's best interest.
After finding three of the four grounds for termination alleged by DSS, the Court concluded "[t]hat the best interest of [B.R.] would be served by the termination of parental rights with respect to both parents in order that the juvenile may be placed in a permanent safe living arrangement where her needs will be met on a consistent basis."
On appeal, respondent argues that the trial court erred in concluding that termination of his parental rights was in the best interest of B.R. without first exploring a possible placement with his mother, the grandmother. Respondent contends that according to N.C. Gen. Stat. §§ 7B-505 and 907(b)(2) (2003), when a minor child is removed from the custody of the parents, the court has a duty to explore placement with a relative before placing the child with strangers.
The statutes cited by respondent apply to custody placements during abuse, neglect and dependency proceedings under N.C. Gen. Stat. § 7B-401 and at permanency planning hearings under 7B-907, not for the termination of parental rights proceedings instituted pursuant to N.C. Gen. Stat. § 7B-1104. We further note respondent did not raise the issue of a possible placement with the grandmother at any time during the course of the abuse, neglect, and dependency proceedings.
The termination of parental rights is a two-stage process, consisting of (1) an adjudication of the existence or nonexistence that grounds for termination exist under N.C. Gen. Stat. § 7B-1111 (2003), and (2) a disposition based on this determination. See N.C. Gen. Stat. §§ 7B-1109, -1110 (2003). "Once one or more of the grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered." In re Locklear, 151 N.C. App. 573, 575, 566 S.E.2d 165, 166 (2002). At the dispositional stage, the decision to terminate parental rights where grounds for termination exist is reviewed only for abuse of discretion. In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). A court abuses its discretion if its decision "is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998).
Respondent does not contest the district court's findings of fact or its conclusion that grounds for termination existed under N.C. Gen. Stat. § 7B-1111(a)(1), (2), and (3). Instead, he challenges the court's disposition, in light of the grandmother's testimony that she was willing to care for B.R. until respondent obtained stable employment and housing. We find no abuse of discretion by the district court. The court's emphasis on B.R.'s need for a permanent placement was consistent with the legislative intent expressed in N.C. Gen. Stat. § 7B-1100. The court specifically found that none of the grandparents were willing to provide a permanent placement for B.R. Moreover, although the grandmother expressed a willingness to take custody of B.R. until respondent found stable housing and employment, respondent had neither expressed a desire to be B.R.'s primary caretaker nor demonstrated the capacity to maintain a stable living arrangement suitable for a developmentally delayed infant. The fact that B.R. had been in a loving and stable environment with an adoptive foster family for twenty months, since four days after her birth, and that the foster family was actively addressing her special developmental needs, further supported the court's conclusion that adoption was in her best interest. See In re Howell, 161 N.C. App. 650, 654, 589 S.E.2d 157, 161 (2003) (citing In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990)).
Affirmed.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).