In re S.M. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1241
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
S.M. Wake County
No. 12 JT 45
Appeal by respondent father from order entered 28 June 2013
by Judge Margaret P. Eagles in Wake County District Court.
Heard in the Court of Appeals 7 April 2014.
Roger A. Askew for petitioner-appellee Wake County Human
Services.
Windy H. Rose for respondent-appellant father.
Robinson, Bradshaw & Hinson, P.A., by Ty E. Shaffer, for
guardian ad litem.
McCULLOUGH, Judge.
Respondent father appeals from the trial court’s order
terminating his parental rights to the juvenile S.M. Respondent
contends the trial court erred by concluding two grounds existed
to terminate his parental rights because he was never given the
opportunity to establish paternity or to provide support for the
juvenile. We affirm.
I. Background
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The juvenile was born in November of 2011. On 10 February
2012, Wake County Human Services (“WCHS”) received a report
alleging that the juvenile’s mother had endangered the juvenile
and then threatened to harm herself. The same day, WCHS filed a
petition alleging that the juvenile was neglected and dependent
and took the juvenile into non-secure custody. The petition
identified four putative fathers.
On 17 April 2012, the trial court entered an adjudication
and disposition order, in which it found that paternity still
had not been established, and adjudicated the juvenile neglected
and dependent. As of a review hearing held 6 and 8 November
2012, WCHS still had not identified the juvenile’s father, and
sought to have putative father “A.O.” submit to genetic testing.
At that point, the trial court relieved WCHS of further efforts
toward reunification and changed the permanent plan to adoption.
In November of 2012, the mother contacted respondent
through a social networking website and informed him that
genetic testing had determined that A.O. was not the juvenile’s
father. Respondent, who was attending high school in Maryland
at the time, agreed to come back to North Carolina to take a
paternity test, which determined that he was the juvenile’s
father. After WCHS received the paternity test results,
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respondent and his mother met with a social worker on 18 January
2013 and he entered into an out-of-home services agreement.
On 31 January 2013, WCHS filed a petition to terminate
respondent’s parental rights. As grounds for termination, WCHS
alleged: (1) respondent had failed to legitimate the juvenile
or establish paternity (N.C. Gen. Stat. § 7B-1111(a)(5) (2013));
(2) respondent had neglected the juvenile (N.C. Gen. Stat. § 7B-
1111(a)(1)); (3) respondent had left the juvenile in foster care
for more than twelve months without making reasonable progress
toward correcting the conditions that led to her removal from
the home (N.C. Gen. Stat. § 7B-1111(a)(2)); (4) the juvenile was
in WCHS custody, and respondent had failed to provide support
for a continuous period of six months prior to the filing of the
petition (N.C. Gen. Stat. § 7B-1111(a)(3)); and (5) respondent
had willfully abandoned the juvenile (N.C. Gen. Stat. § 7B-
1111(a)(7)).
The mother relinquished her parental rights on 2 May 2013.
The adjudication phase of respondent’s termination hearing took
place on 14 May 2013. After hearing the testimony of a social
worker, respondent, and respondent’s mother, the trial court
concluded grounds existed to terminate respondent’s parental
rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(3) and (5). The
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disposition hearing took place on 14 June 2013, and the trial
court concluded it was in the juvenile’s best interest to
terminate respondent’s parental rights. The trial court entered
its termination order on 28 June 2013. Respondent gave notice
of appeal.
II. Discussion
In his two arguments on appeal, respondent contends the
trial court erred by concluding that grounds existed to
terminate his parental rights. Respondent’s arguments are both
dependent on his assertion that he did not have sufficient time
to act, following his notification that he was the juvenile’s
father, to protect his parental rights. Respondent’s argument
is misplaced, in that his responsibility to establish paternity
did not begin when he received the results of the paternity
test. Thus, we disagree.
At the adjudicatory stage of a termination of parental
rights hearing, the burden is on the petitioner to prove by
clear, cogent, and convincing evidence that at least one ground
for termination exists. N.C. Gen. Stat. § 7B-1109(f) (2013); In
re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908
(2001). Review in the appellate courts is limited to
determining whether clear and convincing evidence exists to
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support the findings of fact 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), appeal dismissed, disc. review
denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “‘[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.’” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (citation omitted). “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.” Koufman v. Koufman, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991).
Although the trial court concluded two grounds existed to
terminate respondent’s parental rights, we find it dispositive
that the evidence supports termination of his parental rights to
the juvenile pursuant to N.C. Gen. Stat. § 7B-1111(a)(5), based
on his failure to establish paternity or legitimate the
juvenile. See In re Humphrey, 156 N.C. App. 533, 540, 577
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S.E.2d 421, 426 (2003) (a finding of one statutory ground is
sufficient to support the termination of parental rights).
A trial court may conclude grounds exist to terminate a
father’s parental rights to a child born out of wedlock if it
finds:
[He] has not, prior to the filing of a
petition or motion to terminate parental
rights, done any of the following:
a. Filed an affidavit of paternity in a
central registry maintained by the
Department of Health and Human Services;
provided, the petitioner or movant shall
inquire of the Department of Health and
Human Services as to whether such an
affidavit has been so filed and the
Department’s certified reply shall be
submitted to and considered by the court.
b. Legitimated the juvenile pursuant to
provisions of G.S. 49-10, G.S. 49-12.1, or
filed a petition for this specific
purpose.
c. Legitimated the juvenile by marriage to
the mother of the juvenile.
d. Provided substantial financial support or
consistent care with respect to the
juvenile and mother.
e. Established paternity through G.S. 49-14,
110-132, 130A-101, 130A-118, or other
judicial proceeding.
N.C. Gen. Stat. § 7B-1111(a)(5).
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“Although a father may have ‘acted consistently with
acknowledging his paternity,’ strict compliance with the
foregoing . . . requirements is required in order for a father
to prevent termination of his parental rights.” In re S.C.R.,
198 N.C. App. 525, 533, 679 S.E.2d 905, 910 (quoting A Child’s
Hope, LLC v. Doe, 178 N.C. App. 96, 105, 630 S.E.2d 673, 678
(2006)), appeal dismissed, 363 N.C. 654, 686 S.E.2d 676 (2009).
Thus, this Court has previously held “‘the illegitimate child’s
future welfare [is not] dependent on whether or not the putative
father knows of the child’s existence at the time the petition
is filed.’” In re T.L.B., 167 N.C. App. 298, 303, 605 S.E.2d
249, 252 (2004) (citation omitted). Further, even where the
mother has misled the respondent father about the status of the
child, the father is responsible for taking the steps required
by N.C. Gen. Stat. § 7B-1111(a)(5) by the time the petition is
filed. In re M.A.I.B.K., 184 N.C. App. 218, 223, 645 S.E.2d
881, 885 (2007) (citing A Child’s Hope, 178 N.C. App. at 105,
630 S.E.2d at 678).
In this case, the trial court made the following finding of
fact addressed to respondent’s efforts toward satisfying N.C.
Gen. Stat. § 7B-1111(a)(5):
22. That the father has not filed an
affidavit with the North Carolina
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Department of Health and Human Services
with regard to establishing paternity.
The father has not filed a petition to
legitimate the child. The father has not
taken steps to establish paternity
judicially. The father has not married
the mother. The father did not provide
financial support or care of any kind
with respect to the child or the mother.
Respondent does not challenge the evidentiary support for the
trial court’s finding, does not assert that he took the steps
required by the statute, and does not contend that the finding
fails to address the requirements set out in the statute.
Rather, respondent asserts that terminating his parental rights
based on this ground, when the petition was filed only weeks
after he learned the results of the paternity test, was unfair.
Respondent recognizes, however, that the bright-line rule
applied by our appellate courts in situations such as this,
where a father claims he was unaware of paternity, contradicts
his position. Further, we note that respondent was aware of the
mother’s pregnancy long before the petition was filed, but still
took none of the steps required by N.C. Gen. Stat. § 7B-
1111(a)(5). Accordingly, we affirm the trial court’s order
terminating respondent’s parental rights.
Affirmed.
Judges GEER and STEPHENS concur.
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Report per Rule 30(e).