Opinion
No. COA12–752.
2012-11-20
In the Matter of A.R.
Alexander County Department of Social Services, by Thomas R. Young for Petitioner–Appellee. Mary McCullers Reece for Respondent–Appellant Father.
Appeal by Respondent from order entered 25 March 2012 by Judge Dale Graham in Alexander County District Court. Heard in the Court of Appeals 23 October 2012. Alexander County Department of Social Services, by Thomas R. Young for Petitioner–Appellee. Mary McCullers Reece for Respondent–Appellant Father.
Michael N. Tousey for Guardian ad Litem.
BEASLEY, Judge.
Respondent, the father of the juvenile A.R., appeals from an order terminating his parental rights. After careful review, we affirm.
On 21 December 2009, the Alexander County Department of Social Services (“DSS”) filed a petition alleging that A.R. was a dependent juvenile. DSS stated that A.R.'s mother, who was also a minor, had previously been adjudicated a neglected child on 11 February 2004. The mother was placed in guardianship with a relative in New York, but restored to the maternal grandmother's custody on 19 March 2009. Shortly thereafter, at a permanency planning review hearing held on 1 April 2009, it was determined that the mother “had been subject[ed] to sexual abuse by a 31–year–old male [respondent] while in the custody of [the maternal grandmother] and that she [had] become pregnant as a result.” The mother was placed in foster care. A.R. was born in December 2009. DSS alleged in the petition that the mother was incapable of providing for the care or supervision of A.R. and no other suitable relative placement was known to exist. On 22 April 2010, the trial court adjudicated A . R. a dependent juvenile.
To protect the privacy of the minor child, his/her initials are used in this opinion.
Though a minor, A.R.'s mother is referred to as “A.R.'s mother” or “the minor.”
On 18 August 2011, the mother relinquished her parental rights to A.R. On 28 October 2011, DSS filed a petition to terminate Respondent's parental rights. DSS alleged that: (1) a paternity test on 14 March 2011 established that Respondent was the father of A.R.; (2) Respondent pled guilty to five counts of taking indecent liberties with a child and was sentenced to a minimum term of thirteen months imprisonment; and (3) the victim, with relation to the charges of indecent liberties, was A.R.'s mother, and A.R. was conceived as a result of sexual intercourse between A.R.'s mother and Respondent when the mother was still a minor. DSS further claimed that Respondent had: (1) failed to visit or support the juvenile; (2) neglected the juvenile; (3) failed to legitimize the juvenile; (4) abandoned the juvenile; and (5) left the juvenile in foster care for more than twelve months without making reasonable progress towards correcting the conditions which led to the removal of the juvenile.
On 1 March 2012, a hearing was held on the petition. The trial court concluded that grounds existed to terminate Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B1111(a)(5) (failure to legitimize) and (7) (abandonment). The trial court further concluded that it was in the best interests of the juvenile to terminate Respondent's parental rights.
Respondent filed written notice of appeal from the trial court's order terminating his parental rights on 26 April 2012, but the certificate of service indicates that he did not serve the guardian ad litem. The failure to serve a proper party is a fatal defect which deprives this Court of jurisdiction. SeeN.C.R.App. P. 26(b); In Re C.T., 182 N.C.App. 166, 167, 641 S.E.2d 414, 415 (2007) (dismissing the father's appeal because “failure to attach a certificate of service to the notice of appeal is fatal”). Respondent, cognizant of this deficiency, has filed a petition for writ of certiorari. In our discretion, we allow the petition.
Respondent's sole argument is the trial court erred by concluding that grounds existed to terminate his parental rights. N.C. Gen.Stat. § 7B–1111 (2011) sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support termination. In re Taylor, 97 N.C.App. 57, 64, 387 S.E.2d 230, 233–34 (1990). “The standard of appellate review is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law.” In re D.J.D., 171 N.C.App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000)).
Pursuant to N.C. Gen.Stat. § 7B–1111(a)(5), a court may terminate the parental rights of a father of a juvenile born out of wedlock upon a finding that 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 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.
N.C. Gen.Stat. § 7B–1111(a)(5) (2011). When basing the termination of parental rights on N.C. Gen.Stat. § 7B1111 (a)(5), “the court must make specific findings of fact as to all four subsections....” In re I.S., 170 N.C.App. 78, 88, 611 S.E.2d 467, 473 (2005) (citing In re Harris, 87 N.C.App. 179, 188, 360 S.E.2d 485, 490 (1987)).
Here, in support of its conclusion that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(5) to terminate Respondent's parental rights, the trial court made the following findings of fact:
30. [Respondent] has admitted in his testimony and the Court finds that as of the present Court date, he has taken no steps to establish paternity judicially or by affidavit which has been filed [with] a central registry maintained by the North Carolina Department of Health and Human Services.
31. [Respondent] admits and the Court finds that [Respondent] has failed to legitimate the minor child by filing a civil action pursuant to N.C. Gen.Stat. 49–10 or filed a petition for this purpose.
32. [Respondent] has never married [A.R.'s mother] and has had no contact with her or the minor child during the pendency of both the underlying dependency case or the present termination action.
33. [Respondent] has had every month a sum of money deposited by his brother in his prisoner canteen account. The amount of the sum has been as great as $100.00 at least at one point during [Respondent's] incarceration.
34. The Court will find that [Respondent] has had moneys [sic] available to him which could have been directed to the support of the minor child, either money that was held in his prisoner canteen account or money which he could have had his brother send. [Respondent] declined to send even a cent to cover the cost of care for the child.
Respondent does not specifically challenge these findings of fact and they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (unchallenged findings are deemed supported by competent evidence and are binding on appeal); see also In re S.N.H. & L.J.H., 177 N.C.App. 82, 83, 627 S.E.2d 510, 512 (2006).
Rather than challenge the trial court's findings of fact, Respondent instead argues that his purported admissions at the termination hearing were insufficient to support a conclusion that he failed to legitimize the minor child. Specifically, Respondent cites N.C. Gen.Stat. § 7B–1111(a)(5)(a) and claims that DSS is required to admit into evidence the certified reply from the Department of Health and Human Services regarding whether Respondent had filed an affidavit of paternity. We find Respondent's arguments unpersuasive.
In I.S., this Court addressed the issue of whether an attorney's stipulation regarding a father's failure to legitimize a minor child would have been sufficient to support termination of the father's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(5). This Court concluded that a stipulation would be sufficient, stating
If [the father's] attorney had, in fact, stipulated to all of the facts the trial court found her to have stipulated to, there would have been no need for further findings of fact on the issue of whether grounds existed to terminate respondent's parental rights.
I.S., 170 N.C.App. at 86, 611 S.E.2d at 472. By stating that a stipulation would be sufficient to support a conclusion of failure to legitimate pursuant to N.C. Gen.Stat. § 7B–1111(a)(5), the Court necessarily implied that admission into evidence of the certified reply from the Department of Health and Human Services regarding whether the father had filed an affidavit of paternity is not a strict requirement, and the father's failure to file the affidavit could be proved by other means.
Here, at the termination hearing, Respondent was clearly asked whether he had ever filed an affidavit to establish his paternity of A.R. Respondent replied that he had not. While Respondent contends that, due to a language barrier, his testimony was “confused and unclear,” we note it is the trial judge's duty to “weigh and consider all competent evidence, and pass upon the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn therefrom.” In re Whisnant, 71 N.C.App. 439, 441, 322 S.E.2d 434, 435 (1984). The trial court found as fact based on Respondent's testimony that he had not filed the affidavit. Thus, we conclude the trial court's findings of fact addressing all four subsections of N.C. Gen.Stat. § 7B–1111(a)(5) were sufficient to support its conclusion that grounds existed to terminate Respondent's parental rights.
Respondent additionally argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(7) to terminate his parental rights. However, because we conclude that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(5) to support the trial court's order, we need not address the remaining ground found by the trial court to support termination. Taylor, 97 N.C.App. at 64, 387 S.E.2d at 233–34. Accordingly, we affirm.
Affirmed. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).