An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA02-125
NORTH CAROLINA COURT OF APPEALS
Filed:
15 October 2002
IN RE:
ANTOINETTE ARLESHIA LaVANTA McNEIL,
A Juvenile
Cumberland County
No. 00 J 352
Appeal by respondent from order entered 20 June 2001 by Judge
John W. Dickson in Cumberland County District Court.
Heard in the
Court of Appeals 7 October 2002.
David Kennedy for Cumberland County Department of Social
Services, petitioner-appellee.
Margaret Creasy Ciardella for respondent-appellant.
EAGLES, Chief Judge.
Antonio McNeil (respondent) appeals an order terminating his
parental rights as the father of Antoinette McNeil, born 24 October
1993.
The Cumberland County Department of Social Services (DSS)
initially filed a petition on 6 May 1996 to terminate the parental
rights of respondent and Denise Smith, the mother of the minor
child.
The
petition
alleged
that
respondent
had
failed
to
establish paternity pursuant to N.C. Gen. Stat. § 49-10, had left
the minor child in foster care for a continuous period of six
months, had failed to pay a reasonable portion of the cost to care
for the minor child, and had willfully abandoned the minor child.
-2In a 6 November 1998 order, the trial court found that respondent
had visited the child from the time she was born until his
incarceration
eight
months
later;
and
that
while
he
was
incarcerated, respondent provided the minor child with presents
through the “Angel Tree” program and sent her letters.
The trial
court concluded it would not be in the best interest of the minor
child to terminate the parental rights of respondent and dismissed
the
petition
as
to
respondent.
The
trial
court,
however,
terminated the rights of Denise Smith.
DSS filed another petition on 9 June 2000 to terminate the
parental rights of respondent.
DSS alleged that respondent had:
(1) neglected the minor child; (2) willfully left the minor child
in foster care for more than twelve months without showing any
reasonable progress under the circumstances within the twelve
months which led to the minor child’s removal; (3) failed to pay a
reasonable portion of support for the minor child for a continuous
period of six months after the minor child had been placed in the
custody of DSS; and (4) failed to legitimate the child.
On 20 June
2001, the trial court entered an order and terminated respondent’s
parental rights based on all four statutory grounds set forth in
N.C.
Gen.
Stat.
§§
7B-1111(a)(1),
(2),
(3)
and
(5)
(2001).
Respondent appeals from the order terminating his parental rights.
Respondent
contends
there
was
not
clear,
cogent,
and
convincing evidence to support a termination of his parental rights
under any of the four grounds upon which the trial court based its
decision.
We find the evidence sufficient to support the order
-3terminating parental rights and affirm the decision of the trial
court.
Termination of parental rights proceedings are conducted in
two phases: (1) the adjudication phase, governed by N.C. Gen. Stat.
§ 7B-1109; and (2) the disposition phase, governed by N.C. Gen.
Stat.
§ 7B-1110.
S.E.2d
237,
241
See In re Mitchell, 148 N.C. App. 483, 488, 559
(2002)
(citations
omitted).
During
the
adjudication phase, the burden of proof rests on petitioner to
prove “by clear, cogent, and convincing evidence that one or more
of the statutory grounds set forth in N.C.G.S. § 7B-1111 for
termination exists”.
Id.; see N.C. Gen. Stat.
§ 7B-1109(e)-(f).
The standard of appellate review is whether the trial court’s
findings are supported by clear, cogent and convincing evidence and
“whether the findings support the conclusions of law”. In re Huff,
140
N.C.
App.
288,
291,
536
S.E.2d
838,
840
(2000),
appeal
dismissed and 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 enters the disposition phase and
must consider whether termination is in the best interest of the
child.
In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906,
908 (2001). It is within the trial court’s discretion to terminate
parental rights upon a finding that it would be in the best
interests of the child.
Id. at 613, 543 S.E.2d 910.
Section 7B-1111 provides nine separate grounds upon which an
order terminating parental rights may be based. N.C. Gen. Stat. §
-47B-1111 (2001).
A court's finding of one of the statutory grounds
for termination, if supported by competent evidence, will support
an order terminating parental rights. In re Nolen, 117 N.C. App.
693, 700, 453 S.E.2d 220, 225 (1995).
The trial court's decision
to terminate parental rights is reviewed on an abuse of discretion
standard.
In re Allred, 122 N.C. App. 561, 569, 471 S.E.2d 84, 88
(1996).
A trial court may terminate parental rights under the 7B1111(a)(2) upon a finding that:
The parent has willfully left the juvenile in
foster care or placement outside the home for
more than 12 months without showing . . . that
reasonable progress under the circumstances
has been made in correcting those conditions
which led to the removal of the juvenile.
N.C. Gen. Stat. § 7B-1111(a)(2) (2001).
Willfulness under section
7B-1111(a)(2) is “something less than willful abandonment”.
117 N.C. App. at 699, 453 S.E.2d at 224.
Nolen
“A finding of willfulness
is not precluded even if the respondent has made some efforts to
regain custody of the children.” Id.
The trial court must also
find that the parent has failed to make reasonable progress in
correcting the conditions which led to the removal of the child.
N.C.G.S. § 7B-1111(a)(2).
In Nolen, this Court held that sporadic
efforts by the parent to improve her situation constituted willful
failure to correct conditions that led to the removal. Nolen, 117
N.C. App. at 699-700, 453 S.E.2d at 224-25.
In In re Oghenekevebe,
123 N.C. App. 434, 437, 473 S.E.2d 393, 397 (1996), this Court
found the respondent willfully left her child in foster care where
“she failed to show any progress in her therapy until her parental
-5rights were in jeopardy”.
Further, the Supreme Court has recently
clarified which twelve month period is critical in addressing this
issue under the identical language in the prior juvenile code. See
In re Pierce, 356 N.C. 68, ___ S.E.2d ___ (2002)(“within 12 months”
refers to the twelve months prior to the date DSS petitioned the
court to terminate parental rights).
Thus, the relevant period
here is the twelve months prior to 9 June 2000, the date DSS filed
the second petition to terminate parental rights.
In support of its conclusion that respondent’s parental rights
should be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(2) ,
the trial court entered the following pertinent findings of fact:
That the Petitioner is a duly constituted
Department of Social Services of Cumberland
County, North Carolina, which has legal and
physical custody of the minor child pursuant
to an Adjudication of Neglect on 1/25/93 in
File No. 92 J 689. The court takes Judicial
Notice of those matters contained in 92 J 689
and incorporates them herein.
. . . .
On 8/3/98 the putative father was before
the Court on a Petition to terminate his and
the mother’s parental rights. At that time he
was incarcerated. The Petition as to him was
dismissed
with
a
subsequent
plan
of
reunification with him being ordered upon his
release on probation in 12/98.
Between 12/98 and 8/99, Respondent father
was out of prison. He was employed for some
of this time, but provided no support
whatsoever.
Nor did he comply with court
orders, including substance abuse treatment.
He tested positive for cocaine approximately 6
out of 18 times he was tested.
-6Between 8/99 and 3/31/00 he maintained no
contact with the Agency. On or about 3/31/00
his probation was revoked and he returned to
prison. . . .
Respondent has excepted to each of these findings.
After a
review of the record, we determine these findings are based upon
orders entered in the case, the testimony of DSS social worker
Rhonda Chason and respondent’s probation officer Ronnie Locklear.
During the hearing, Chason testified that the nine-year-old minor
child has been in foster care “since her birth.”
She testified
that respondent attended visits sporadically, but did bring “some
clothes and some type of toy, stuffed toys.” Chason also testified
that respondent had not obtained a residence for himself pursuant
to his case plan.
She further testified that from August 1999 to
December 1999, respondent had not been in contact with DSS and had
not sent her money for clothes, food or school.
Chason stated that
during the period of time respondent held a job he did not give the
minor child any money and that the State of North Carolina has
supported the minor child her entire life.
Locklear testified
that “out of the 18 times [respondent] was tested, he tested
positive on six separate occasions.”
He also testified that
respondent “was taken to ‘TASK’ and he refused to go . . . he would
not participate in the local drug treatment.”
Locklear further
testified that respondent had started a job with an electrician,
but
was
terminated
influence on the job.
from
that
employment
for
being
under
the
From the testimony of these three witnesses
the trial court could reasonably conclude that in the twelve month
period preceding the DSS petition from 9 June 1999 to 9 June
-72000,respondent
willfully
left
his
daughter
in
foster
care.
Accordingly, we find the trial court’s findings are supported by
clear, cogent and convincing evidence.
Furthermore, we hold that
these findings support the court's conclusion that Antonio McNeil
was subject to having his parental rights terminated pursuant to
N.C. Gen. Stat. §
7B-1111 (a)(2). See, e.g., In re Nolen, 117 N.C.
App. 693, 453 S.E.2d 220 (1995),
434, 473 S.E.2d 393 (1996).
In re Oghenekevebe, 123 N.C. App.
Respondent fails to show, nor do we
find, that the trial court abused its discretion in terminating
respondent’s parental rights.
Because we have determined that one of the grounds set forth
in N.C. Gen. Stat. § 7B-1111 supports the trial court's order, we
need not address respondent's challenge to the trial court’s
termination on other grounds.
565, 471 S.E.2d at 86.
See In re Allred, 122 N.C. App. at
Accordingly, the trial court’s order
terminating respondent’s parental rights is affirmed.
Affirmed.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
