An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
19 June 2007
IN THE MATTER OF
No. 04 J 43
Appeal by respondent father from judgment entered 28 November
2005 by Judge George R. Murphy in Harnett County District Court.
Court of Appeals
Heard in the Court of Appeals 25 January 2007.
E. Marshall Woodall and Duncan B. McCormick, for the Harnett
County Department of Social Services.
Elizabeth Boone for the guardian ad litem.
Peter Wood for respondent-father.
Herman F. (“Respondent”) appeals from an order entered 28
November 2005 in Harnett County District Court terminating his
parental rights to D.Z.F. (“the minor child”).
Respondent and Wendy F. (“Wendy”), the biological parents of
the minor child, engaged in a relationship during 2002 and 2003.
During the relationship, both of them used illegal drugs.
had no contact with respondent after June of 2003 and stated that
she was afraid of respondent.
birth to the minor child.
In November of 2003, Wendy gave
After the minor child’s birth, Harnett
County Department of Social Services (“DSS”) learned that Wendy
-2used drugs and neglected the minor child.
DSS substantiated the
report and, as a result, extended case management services to
Wendy. During the time services were extended to Wendy, D.Z.F. was
subjected to unsanitary living conditions and domestic violence.
Wendy continued abusing drugs. During this time, respondent had no
contact with Wendy.
On 15 March 2004, DSS filed a petition and
obtained non-secure custody of D.Z.F., who was placed in foster
In October of 2004, respondent was arrested for selling
He was subsequently convicted and sentenced to an
active prison sentence.
Wendy identified respondent as the father
of the minor child but refused to cooperate with DSS in locating
him due to her stated fear of respondent.
On 23 April 2004, Wendy
stipulated to neglect and the court entered an order adjudicating
the minor child as neglected.
Respondent was not present at the
hearing because he was not served with a petition until 3 November
At that time, he was incarcerated and had never seen the
In May of 2005, respondent requested a paternity
test, which determined he was the biological father of D.Z.F.
Respondent was notified of various court proceedings related to
D.Z.F., but never contacted DSS.
On 1 March 2005, DSS filed a motion to terminate respondent’s
parental rights on grounds of neglect and abandonment of the minor
The motion further alleged the minor child had been placed
in the custody of DSS for a continuous period of six months
preceding the filing of the motion, that D.Z.F. was born out of
-3wedlock and that respondent had not legitimated the child.
motion also sought to terminate Wendy’s parental rights for both
her minor children.
terminating the parental rights of both parents.
Wendy did not
appeal from the order and is not a party to the instant case.
Respondent’s parental rights were terminated on grounds that he
neglected, abandoned, and failed to legitimate the minor child.
From that order, respondent appeals.
On appeal, respondent argues
the trial court erred in entering several findings of fact and
conclusions of law, and in determining it was in the best interests
of the minor child to terminate respondent’s parental rights.
Termination of parental rights is a two-step process that
requires this Court to apply two separate standards of review.
There is an adjudicatory phase, governed by N.C. Gen. Stat. §
7B-1109(e) (2005), followed by a dispositional phase, governed by
N.C. Gen. Stat. § 7B-1110 (2005). In the adjudicatory phase, the
trial court’s findings must be supported by clear, cogent, and
convincing evidence, and the findings must support a conclusion
that at least one statutory ground for termination of parental
rights exists. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d
403, 406 (2003). “Clear, cogent and convincing evidence describes
an evidentiary standard stricter than a preponderance of the
evidence, but less stringent than proof beyond a reasonable doubt.”
The N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326 S.E.2d
320, 323 (1985).
In the dispositional phase, the trial court
determination for an abuse of discretion. Shermer, 156 N.C. App. at
285, 576 S.E.2d at 407. Reversal for abuse of discretion is limited
to instances where the appellant can show the judge's decision is
“manifestly unsupported by reason.”
Clark v. Clark, 301 N.C. 123,
129, 271 S.E.2d 58, 63 (1980).
A court may terminate the parental rights of a father of a
juvenile born out of wedlock upon a finding the father has not,
prior to the filing of the petition 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
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
N.C. Gen. Stat. § 7B-1111(a)(5) (2005).
“Upon a finding that the putative father has not attempted any
of the four possible ways to legitimate his child, the trial court
may terminate parental rights.”
373, 489 S.E.2d 428, 430 (1997).
In re Hunt, 127 N.C. App. 370,
However, the trial court must
make findings that the putative father has not complied with any of
-5the statute’s four subsections.
In re Harris, 87 N.C. App. 179,
188, 360 S.E.2d 485, 490 (1987).
Respondent correctly notes that the trial court made no
finding that he failed to legitimate the child by marriage to the
child’s mother. Although there is nothing in the record to suggest
he and Wendy were married, it was error for the trial court to
terminate the respondent’s parental rights on this ground, since
failure to legitimate the child is one of the statutorily-required
findings that was not made.
However, in a termination proceeding the court’s findings only
need to support a conclusion that at least one statutory ground
Shermer, 156 N.C. App. at 285, 576 S.E.2d at 406.
case sub judice, the trial court found grounds for termination
Specifically, the trial court terminated respondent’s parental
rights on the grounds of neglect and abandonment.
General Statute § 7B-1111(a)(1) (2005) allows a trial court to
terminate a parent’s parental rights on the basis of neglect. “The
juvenile shall be deemed to be abused or neglected if the court
finds the juvenile to be an abused juvenile within the meaning of
G.S. 7B-101 or a neglected juvenile within the meaning of G.S.
North Carolina General Statute § 7B-101(15) (2005)
defines a neglected juvenile as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
welfare; or who has been placed for care or
adoption in violation of law. In determining
whether a juvenile is a neglected juvenile, it
is relevant whether that juvenile lives in a
home where another juvenile has died as a
result of suspected abuse or neglect or lives
in a home where another juvenile has been
subjected to abuse or neglect by an adult who
regularly lives in the home.
termination of parental rights on the grounds of abandonment. “The
parent has willfully abandoned the juvenile for at least six
consecutive months immediately preceding the filing of the petition
or motion, or the parent has voluntarily abandoned an infant
immediately preceding the filing of the petition or motion.”
The record contains evidence supporting a determination that
the respondent not only neglected the minor child with a likelihood
of repetition of neglect, but also that respondent abandoned the
Although respondent has assigned error to numerous
findings of fact, we need not address whether each assignment of
error was supported by clear, cogent, and convincing evidence
because we determine that there is ample evidence in the record to
support both neglect and abandonment. Finding of fact 50 states as
50. Respondent had knowledge of the juvenile,
was acquainted with the circumstances of the
mother and her parenting skills and abilities.
He failed to assist the mother with caring for
his son. After knowledge of DSS involvement
in November 2004, he failed to take action to
care for the juvenile or make any plan for his
-7support and/or care.
Such actions were
willful; he could have taken some parental
We determine that this finding is supported by clear, cogent,
and convincing evidence in that respondent was made aware of his
obligations as the minor child’s father and also was regularly
updated on the child’s conditions.
Respondent was served with a
petition in November of 2004 and after requesting a paternity test,
learned he was the minor child’s father.
Despite this knowledge,
respondent never contacted DSS about a plan for parenting D.Z.F.
When the termination order was filed, respondent had never even
seen the child.
These facts are set forth in finding of fact 42,
which is not contested by respondent and is binding on appeal.
This finding, as well as finding of fact 50, constitute clear,
cogent, and convincing evidence that respondent neglected and
abandoned the minor child. Since the findings support a conclusion
that at least one statutory ground for termination of parental
rights exists, this assignment of error is overruled.
We next review the dispositional phase to determine whether
the trial court erred in ordering that it was in the best interests
previously stated, our standard of review for concluding that a
trial court abused its discretion is to determine if the court’s
decision was “manifestly unsupported by reason.”
Here, the trial
court determined that the minor child was in need of stability and
a plan of adoption would be in the child’s best interests.
likelihood of a repetition of neglect.
interest in providing the appropriate stability and care for D.Z.F.
In light of all the facts before us, we determine the trial court’s
decision to terminate respondent’s parental rights was not an abuse
of discretion. Accordingly, this assignment of error is overruled.
Judges GEER and JACKSON concur.
Report per Rule 30(e).