In Re RR

638 S.E.2d 502
CourtCourt of Appeals of North Carolina
DecidedDecember 19, 2006
DocketCOA06-122
StatusPublished

This text of 638 S.E.2d 502 (In Re RR) 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 RR, 638 S.E.2d 502 (N.C. Ct. App. 2006).

Opinion

638 S.E.2d 502 (2006)

In re R.R., a minor child,
New Hanover County Department of Social Services, Petitioner,
v.
B.F., Respondent.

No. COA06-122.

Court of Appeals of North Carolina.

December 19, 2006.

Dean W. Hollandsworth, Wilmington, attorney for petitioner-appellee.

Lisa Skinner Lefler, Wilmington, attorney for respondent-appellant.

Regina Floyd-Davis, Wilmington, attorney for guardian ad litem-appellant.

ELMORE, Judge.

Respondent B.F. appeals the district court's order terminating his parental rights as the father of R.R. After careful review, we affirm the order of the trial court.

The child, R.R., was born on 16 November 2002, at which time both she and her mother, H.R., tested positive for cocaine. H.R. admitted to "freebasing" cocaine for a few days prior to going into labor and delivering R.R. The child has been in the legal and physical custody of petitioner, New Hanover County Department of Social Services, since 18 November 2002. The mother stated that the child resulted from being pregnant after a sexual assault by an unknown man whose identity has never been established.

*504 After R.R.'s birth, the mother left the state and made no contact with petitioner, no response to correspondence efforts from petitioner, no effort to regain custody of her daughter, and no inquiry as to her daughter's well being. On 10 July 2003, the district court ordered that the permanent plan be changed from reunification with the mother to adoption. In its July, 2003 order, the district court stated that B.F., H.R.'s "significant other," had contacted petitioner to assert his possible paternity of the child, requesting a paternity test. Petitioner "encouraged him to re-contact the social worker when he moved to the Durham area and had secured housing. He was instructed at that time that once he could provide a stable address, he could be served for Court." The trial court did not hear from B.F. again prior to issuing its order.

By 13 November 2003, the date of a periodic review before the district court, R.R.'s birth certificate had been amended to include B.F. as the named father. Apparently this amendment was made with the mother's cooperation. B.F. had met with the mother and R.R.'s social worker while the mother was incarcerated and stated that he wanted to have a paternity test to determine whether he was R.R.'s father, but that he could not afford to pay for the test himself. As a result of this statement, the district court judge ordered B.F. to undergo a paternity test paid for by petitioner.

By the next hearing on 29 January 2004, B.F. and H.R. were married and living together in Tennessee. B.F. had not taken the paternity test. The district court judge found that he had "told a social worker outside of the courthouse that he did not intend to complete the testing if he was not given a court appointed attorney" and that he had "not been in contact with the Department [of Social Services] since leaving the last court hearing without obtaining paternity testing." The court ordered B.F. to take a paternity test if he "desire[d] to participate in this matter."

On 14 July 2004, petitioner filed a Petition for Termination of Parental Rights pursuant to North Carolina General Statute section 7B-1100, which was granted on 23 May 2005. It is from this order that respondent appeals. The district court's findings, in relevant part, include:

4. The Court finds as a fact that Bradley F. is most likely not the father of this child due to the fact that he is Caucasian and the child is bi-racial. He failed and refused to submit to a paternity test when ordered previously to do so and this circumstance leads the Court to find that he fears the result of this test will disprove his assertion of paternity.
5. The Respondent-Parents have neglected the child within the meaning of G.S. § 7B-101 due to the fact that the Respondent-Mother and child both tested positive for cocaine at the time of the child's birth. . . . The purported biological father, Bradley F., refused to comply with the Court Order of November 13, 2003 to submit to paternity testing. The unknown father, whom the Respondent-Mother stated was a man who sexually assaulted her, has never had any contact with the child. In light of the Respondent-Parents' lack of compliance with any Court Orders and family services case plans during the history of this matter, the likelihood of repetition of neglect is strong.
6. The Respondent-Parents have willfully, and not due solely to poverty, left the child in foster care for more than twelve months without showing to the satisfaction of the Court that reasonable progress under the circumstances was made to correct the conditions which led to the child's removal. None of the Respondent-Parents have complied with any Court Orders or family services case plans which would be necessary to establish reasonable progress in obtaining substance abuse treatment, parenting classes and mental health treatment. None of the Respondent-Parents have seen the child since shortly after birth, nor participated in any of the activities needed to establish a safe home for her placement.
7. The Respondent-Parents have willfully failed to pay any amount toward the reasonable cost of care of the child for a period exceeding six continuous months prior to the filing of the Petition. The *505 Respondent-Parents have been physically and financially able to do so except for any period of incarceration.
. . .
9. The Respondent-Parents have willfully abandoned the child for at least six consecutive months immediately prior to the filing of the petition. None of the Respondent-Parents has seen or visited with the child since her removal on November 18, 2002, shortly after her birth on November 16, 2002. . . . The purported biological father, Bradley F., refused paternity testing and has never seen the child. . . . These circumstances lead the Court to find that a willful abandonment of this child by the Respondent-Parents is evident.

The district court terminated respondent's parental rights on the grounds of neglect, N.C. Gen.Stat. § 7B-1111(a)(1) (2005), willfully abandoning the child "for at least six consecutive months immediately preceding the filing of the petition," N.C. Gen.Stat. § 7B-1111(a)(7) (2005), and willfully leaving the child in foster care for more than twelve months "without showing to the satisfaction of the court that reasonable progress under the circumstances has been made in correcting those conditions" which led to the child's removal, N.C. Gen.Stat. § 7B-1111(a)(2) (2005).

Respondent appealed the order terminating his parental rights citing the following errors: (I) the trial court failed to make proper inquiry and findings of fact concerning B.F.'s paternity of the child; (II) the trial court made findings of fact not supported by the evidence that grounds existed to terminate the father's rights, that the evidence did not support a finding that the best interests of the child were served by terminating respondent's parental rights and the written order reflecting that the trial court made all the proper findings and conclusions was in error; (III) the trial court failed to appoint counsel to respondent; and (IV) the trial court lacked jurisdiction to hear this termination proceeding because of failure to comply with statutorily mandated time lines.

I.

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Bluebook (online)
638 S.E.2d 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rr-ncctapp-2006.