In Re ARHB

651 S.E.2d 247
CourtCourt of Appeals of North Carolina
DecidedOctober 2, 2007
DocketCOA07-690
StatusPublished

This text of 651 S.E.2d 247 (In Re ARHB) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re ARHB, 651 S.E.2d 247 (N.C. Ct. App. 2007).

Opinion

651 S.E.2d 247 (2007)

In the Matter of A.R.H.B. and C.C.H.L.

No. COA07-690.

Court of Appeals of North Carolina.

October 2, 2007.

J. Tyrone Browder, King, for Stokes County Department of Social Services, appellee.

Pamela N. Williams, Raleigh, for guardian ad litem.

Charlotte Gail Blake, Jefferson, for respondent-appellant father.

*250 Richard E. Jester, Louisburg, for respondent-appellant mother.

JACKSON, Judge.

Respondent father, M.B., appeals from an order terminating his parental rights to the minor child A.R.H.B. Respondent mother, S.L.H., appeals from an order terminating her parental rights to both minor children, A.R.H.B. and C.C.H.L. The father of minor child C.C.H.L. has not appealed the termination of his parental rights.

The Stokes County Department of Social Services ("DSS") obtained non-secure custody of the minor children 16 March 2005, after filing a petition alleging that they were dependent and neglected juveniles as defined by North Carolina General Statutes, section 7B-101(9) and (15). DSS had been called to the children's residence where they were found in the care of their maternal grandmother. The grandmother and her boyfriend were intoxicated and were suspected of engaging in domestic violence in the home. There were also allegations that C.C.H.L., fourteen, had been allowed to have sex with her boyfriend, eighteen, who also lived in the house. Respondent mother had moved to Florida and left the children in her mother's care while she sought to establish a home there. The whereabouts of both fathers were unknown.

After returning to North Carolina, respondent mother entered into a reunification plan on 7 July 2005 as to both children. Under these plans, she was required to (1) submit to a substance abuse assessment and follow all recommendations; (2) submit to random drug testing; (3) make an appropriate plan for the children should she choose to drink to the point of intoxication; (4) complete parenting classes and demonstrate an ability to appropriately parent and supervise the children and follow recommendations; (5) meet with a social worker one time per month and call one time per month to report any progress; (6) pay an appropriate amount of child support for the children; (7) obtain and maintain employment to be able to provide for the children's basic needs; and (8) obtain and maintain a safe and stable home.

On 2 August 2005, the trial court adjudicated the children neglected and dependent. The disposition order was not entered until 21 December 2005.

Respondent father eventually was located at Kershaw Correctional Institution in Kershaw, South Carolina, where he was sent notice of a permanency planning hearing concerning A.R.H.B. scheduled for 14 March 2006. Respondent father subsequently was transferred to another facility, where he actually received the notice in late February or early March 2006. In response, he mailed a letter on 6 March 2006 to the presiding judge in which he stated that he was due to be released 1 May 2006 and questioned his paternity. He sought a continuance so that he could attend the hearing, hire an attorney, and determine paternity. The 14 March 2006 hearing was held as scheduled in respondent father's absence, with the court concluding that the filing of a termination petition or motion in the cause was not in the children's best interest because respondent mother was still determined to address substance abuse through treatment. The order was not signed until 27 June 2006.

After the 14 March 2006 hearing, but before the order was signed, DSS filed motions for termination of parental rights as to both children on 17 April 2006. Respondent father was served with notice of the termination hearing pursuant to North Carolina General Statutes, section 7B-1106.1 on 21 April 2006. Such notice stated that the date, time, and place of hearing would be mailed thirty days from the date of service of said notice if no response was filed. Respondent father filed no response. A guardian ad litem for the termination was appointed for respondent father "or any/all unknown father" on 21 September 2006. The termination hearing was continued several times, but eventually scheduled for 22 February 2007. Notice of calendaring was served on respondent father's guardian ad litem on 2 February 2007.

Paternity testing was initiated by DSS in late 2006. Respondent father was determined to be A.R.H.B.'s biological father on 12 February 2007. The guardian ad litem moved the court to continue the case to allow *251 respondent father to be in attendance and prepare an answer, because of the recent determination that he was the child's father. The court denied the motion because respondent father had been served with notice of the termination hearing, received a copy of the motion for termination, and had never filed an answer or other responsive pleading at any time prior to the hearing. At the time of the termination hearing, respondent father was again incarcerated in South Carolina.

The court found that sufficient grounds existed to terminate the parental rights of respondent father in that he had not, prior to the filing of the motion, (1) established paternity judicially or by affidavit filed in a central registry; (2) legitimated A.R.H.B. pursuant to North Carolina General Statutes, section 49-10 or filed a petition for this purpose; (3) legitimated A.R.H.B. by marrying [respondent] mother; or (4) provided substantial financial support or consistent care to A.R.H.B. and her mother.

The court found that sufficient grounds existed to terminate the parental rights of respondent mother in that: (1) she had neglected the children within the meaning of North Carolina General Statutes, sections 7B-1111(a)(1) and 7B-101; (2) she had willfully left the children in foster care for more than twelve months without showing reasonable progress; and (3) she was incapable of providing for the proper care and supervision of the children, and there was a reasonable probability that such incapability will continue for the foreseeable future.

A dispositional hearing was held 21 March 2007, at which time the court concluded it was in the best interest of both minor children that parental rights be terminated.

RESPONDENT FATHER

Respondent father appeals the termination of his parental rights solely on the basis of lack of notice. We find his argument to be without merit.

Parental rights are terminated in a two-step process: adjudication of grounds for termination, and disposition. In re Nesbitt, 147 N.C.App. 349, 351, 555 S.E.2d 659, 661 (2001). In the adjudicatory phase, this Court determines whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence, and whether these findings support its conclusions of law. Id. "If unchallenged on appeal, findings of fact `are deemed supported by competent evidence' and are binding upon this Court." In re J.M.W., 179 N.C.App. 788, 792, 635 S.E.2d 916, 919 (2006) (quoting In re Padgett, 156 N.C.App. 644, 648, 577 S.E.2d 337, 340 (2003)).

Here, the trial court made the following findings of fact, which respondent father has not challenged and, therefore, are binding upon this Court:

2. The Motion to Terminate Parental Rights was filed on April 17, 2006.
. . . .

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Bluebook (online)
651 S.E.2d 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arhb-ncctapp-2007.