Opinion
No. COA07-1212.
Filed February 19, 2008.
Haywood County No. 07 JT 45.
Appeal by respondent from order entered 7 August 2007 by Judge Richlyn D. Holt in Haywood County District Court. Heard in the Court of Appeals 1 February 2008.
Ira L. Dove, for Haywood County Department of Social Services, petitioner-appellee. Teague, Campbell, Dennis Gorham, L.L.P., by Robert C. Kerner, Jr., for guardian ad litem. Thomas B. Kakassy, for respondent-appellant.
G.C. ("respondent"), the father of N.S., appeals from an order entered terminating his parental rights. We affirm.
I. Background
On 28 August 2005, the Haywood County Department of Social Services ("DSS") took custody of N.S., a four-month-old child. On 8 December 2005, the trial court adjudicated N.S. to be neglected based upon a finding that the child's mother had used methamphetamine while caring for N.S. On 7 February 2007, the trial court held a permanency planning review hearing. Respondent was present and represented by counsel. On 19 March 2007, DSS filed petitions to terminate the parental rights of both N.S.'s mother and respondent. On 22 March 2007, respondent was served with the requisite petition and summons pursuant to N.C. Gen. Stat.§ 7B-1106.1 (2007). On 16 May 2007, the trial court terminated N.S.'s mother's parental rights. On 4 June 2007, respondent filed his response to DSS's petition to terminate his parental rights and denied the material allegations set forth therein. Respondent's termination hearing was continued to 18 July 2007 because of delays in appointing counsel for respondent. The trial court entered an order terminating respondent's parental rights on 7 August 2007. Respondent appeals.
II. Issues
Respondent argues the trial court erred when it made findings of fact numbered 33, 37, 40, 42, 43, and 44. Respondent also argues the trial court abused its discretion when it terminated his parental rights and asserts DSS presented insufficient evidence concerning the best interests of the child.
III. Standard of Review
A termination of parental rights proceeding involves two separate analytical phases: an adjudication stage and a dispositional stage. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). A different standard of review applies to each phase.
"At the adjudication stage, the party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist." In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). The standard for appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether those findings of fact support its conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000) (citation omitted), disc. rev. denied, 353 N.C. 374, 547 S.E.2d 9 (2001). "Clear, cogent and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d 320, 323, cert. denied, 314 N.C. 117, 332 S.E.2d 482, cert. denied, 474 U.S. 981, 88 L. Ed. 2d 338 (1985).
If a petitioner meets its burden of proving at least one ground for termination of parental rights exists under N.C. Gen. Stat. § 7B-1111(a), then the trial court proceeds to the dispositional phase and determines whether the termination of parental rights is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a) (2007). We review the trial court's "best interests" decision under an abuse of discretion standard. In re Nesbitt, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
IV. Termination of Parental Rights A. Findings of Fact 33 and 37
Respondent argues that the trial court's findings of fact numbered 33 and 37 are not supported by any evidence. We disagree.
Findings of fact numbered 33 and 37 state:
33. [Respondent] did not learn until September, 2006 that he was N.S.'s Father, at which time, paternity testing indicated that [Respondent] was, in fact the Father of the child.
37. During the September 2006 conversation with the, [respondent's prison] Case Manager, Social Worker, [Joe] Allen stated that [Respondent] had been proven, the Father of the child as a result of paternity, testing, and requested to have [Respondent] contact, him. There was no contact by the Respondent Father, with Social Worker Allen or the Department of Social, Services following that conversation.
Respondent testified at his termination hearing, which occurred on 18 July 2007, that he did not seek to legitimate or otherwise establish paternity of N.S. because he "didn't even find out [N.S.] was [his child] until last year." This testimony indicates respondent knew N.S. was his biological child at some point in 2006. Further, respondent acknowledged on cross-examination by his attorney that DSS swabbed his mouth for a DNA sample in September 2006 and since that time he has not denied paternity of N.S. Respondent also testified that: (1) he saw N.S. when he was one month old; (2) he gave $150.00 to N.S.'s mother on the child's behalf at or around the time of N.S.'s birthday in May 2005; (3) he "assumed [N.S.] was [his];" and (4) N.S.'s mother told respondent that he may be N.S.'s father. This testimony indicates respondent knew he was N.S.'s biological father before September 2006. Respondent's own testimony supports the trial court's finding of fact numbered 33.
The trial court based finding of fact numbered 37 on other testimonial evidence received at respondent's termination hearing. Joe Allen ("Allen"), the DSS employee responsible for respondent's case from September 2006 to March 2007, testified that in September 2006 he called respondent's case manager at the prison to notify respondent that DNA testing had revealed that he was N.S.'s biological father. Respondent's case manager indicated that she would contact Allen after speaking with respondent. In December 2006, after not receiving a response, Allen called the prison again and left a message for respondent's case manager. Respondent did not return Allen's call. This testimony supports finding of fact numbered 37. This assignment of error is overruled.
B. Grounds for Termination
By his next four assignments of error, respondent argues that the trial court erred by finding and concluding that four grounds existed to terminate respondent's parental rights. The crux of respondent's argument is that he did not receive notice of the paternity test results until March 2007 and that DSS failed to provide services to assist him in correcting the conditions that led to N.S.'s removal.
"[N.C. Gen. Stat. § 7B-1111] sets forth [ten] distinct and separate grounds upon which an order terminating parental rights may be based." In re Swisher, 74 N.C. App. 239, 240, 328 S.E.2d 33, 34 (1985). "If [any] of these grounds [are] based upon findings of fact supported by clear, cogent and convincing evidence the order appealed from should be affirmed." Id. at 239, 328 S.E.2d at 35 (citation omitted).
We first address respondent's argument that the trial court erred by finding and concluding as a matter of law that respondent had not established paternity, judicially or by affidavit, "when he did not know the child was his child." We disagree. N.C. Gen. Stat. § 7B-1111(a)(5) (2007) states:
The 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 reply; or
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.
(Emphasis supplied).
We note at the outset that respondent incorrectly argues that he did not receive notice of the paternity test results until a hearing in March 2007. The record does not indicate any hearing in March 2007. The record shows that respondent was noted as being present and represented by counsel at the permanency review hearing held on 7 February 2007.
Even if we presume that respondent's assertion that he did not know he was N.S.'s biological father until 7 February 2007 was true, respondent's argument fails. The petition to terminate respondent's parental rights was not served until 22 March 2007, almost two full months after he allegedly received the paternity test results. DSS presented sufficient evidence that tended to show respondent did not, prior to the filing of the termination petition, seek to establish paternity judicially or by affidavit. DSS presented a certified reply from the Department of Human Resources that stated, "[n]o Affidavit of Paternity has been received from any person acknowledging paternity or purporting to be the father of [N.S.]. . . ." Testimonial evidence was also presented from two DSS employees responsible for respondent's case. Allen and Karen Messimer, testified they were not aware that respondent had taken any action to legitimate N.S.
The trial court's finding of fact that respondent failed to established paternity, judicially or by affidavit, is supported by "clear, cogent and convincing evidence" and this finding supports the trial court's conclusion of law that sufficient grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(5). In re Swisher, 74 N.C. App. at 239, 328 S.E.2d at 35.
Further, this Court has previously stated:
G.S. 7A-289.32(3) was repealed and replaced by, 7B-1111(a)(2) effective 1 July 1999. 7B-1111(a)(2), deleted the "diligent efforts" requirement, indicating, an intent by the legislature to eliminate the, requirement that DSS provide services to a parent, before a termination of parental rights can occur., Thus, we hold that a determination that DSS made, diligent efforts to provide services to a parent is no, longer a condition precedent to terminating parental, rights.
In re Frasher, 147 N.C. App. 513, 517, 555 S.E.2d 379, 382 (2001) (emphasis supplied); See also In re Pierce, 146 N.C. App. 641, 643-44, 554 S.E.2d 25, 27 (2001), aff'd, 356 N.C. 68, 565 S.E.2d 81 (2002); In re D.J.D., D.M.D., S.J.D., J.M.D., 171 N.C. App. 230, 237, 615 S.E.2d 26, 31 (2005); In re J.W.J., T.L.J., D.M.J., 165 N.C. App. 696, 700, 599 S.E.2d 101, 103 (2004). "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citation omitted). Respondent's argument that DSS failed to provide him services is without merit. This assignment of error is overruled.
C. Best Interest
Respondent argues insufficient evidence was presented regarding the best interests of N.S. and that the trial court abused its discretion by terminating respondent's parental rights. We disagree.
In determining whether the termination of parental rights is in the best interest of the child, the trial court must consider the following factors: (1) the age of the juvenile; (2) the likelihood of adoption of the juvenile; (3) whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile; (4) the bond between the juvenile and the parent; (5) the quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement; and (6) any other relevant consideration. N.C. Gen. Stat. § 7B-1110(a) (2007).
Here, the trial court's findings of fact tended to show: (1) N.S. was less than two years of age at the time of the hearing; (2) although no prospective adoptive parent had been identified, there was a likelihood of adoption, given the child's young age and the significant success of DSS in placing children for adoption; (3) termination of respondent's parental rights will aid in the accomplishment of the permanent plan; (4) no bond was established between respondent and N.S.; (5) respondent's conduct has been such as to demonstrate that he will not promote the healthy and orderly physical and emotional well-being of N.S.; and (6) N.S. needs a permanent plan of care at the earliest possible age, which can be achieved only by the severing of the parental relationship between respondent and N.S.
Respondent did not assign error to any of these findings. "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." In re L.A.B., 178 N.C. App. 295, 298, 631 S.E.2d 61, 64 (2006) (citation and quotation omitted). The trial court did not abuse its discretion by concluding that N.S.'s best interests required respondent's parental rights to be terminated. This assignment of error is overruled.
V. Conclusion
The trial court properly found and concluded sufficient grounds existed to terminate respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(5). The trial court did not abuse its discretion by concluding that N.S.'s best interests required respondent's parental rights to be terminated. The trial court's order is affirmed.
Affirmed.
Judges GEER and JACKSON concur.
Report per Rule 30(e).