In re Baker

• Decision Date: 17 June 2003
• Docket Number: No. COA02-729.,COA02-729.
• Court: North Carolina Court of Appeals
• Parties: In the Matter of Sho'Reice Domaine BAKER DOB: 10/29/89.

581 S.E.2d 144

158 NC App. 491

In the Matter of Sho'Reice Domaine BAKER DOB: 10/29/89.

No. COA02-729.

Court of Appeals of North Carolina.

June 17, 2003.

Stephanie L. Mitchiner, Smithfield, for respondent-appellant Antonio Baker.

Terry F. Rose, Smithfield, for respondent appellant Michelle Baker.

Jennifer S. O'Connor, Smithfield, for petitioner-appellee Johnston County Department of Social Services.

Murphy & Johnson, P.A., by James D. Johnson, Jr., Benson, for Guardian ad Litem.

LEVINSON, Judge.

Petitioners (Johnston County Department of Social Services, hereafter DSS) initiated this action on 3 August 2001, by filing a petition to terminate the parental rights of respondents (Michelle Baker and Antonio Baker) in their son, Sho'Reice Baker (the juvenile). A hearing was conducted in October 2001, and on 20 November 2001, the trial court entered an order terminating the parental rights of both respondents. From this order respondents appeal. For the reasons discussed below, we affirm the trial court.

Preliminarily, we note that respondent father, Antonio Baker, failed to include his notice of appeal in the record. This Court does not acquire jurisdiction without proper notice of appeal. Fenz v. Davis, 128 N.C.App. 621, 623, 495 S.E.2d 748, 750 (1998). However, Mr. Baker filed a motion to amend the record to include written notice of appeal. We grant respondent's motion, and proceed to review the merits of respondents' appeal.

Standard of Review

At the hearing on a petitioner's motion for termination of parental rights, the burden of proof "shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence." N.C.G.S. § 7B-1111(b) (2001).

Thus, in order to prevail in a termination of parental rights proceeding ... the petitioner must: (1) allege and prove all facts and circumstances supporting the termination of the parent's rights; and (2) demonstrate that all proven facts and circumstances amount to clear, cogent, and convincing evidence that the termination of such rights is warranted.

In re Pierce, 356 N.C. 68, 70, 565 S.E.2d 81, 83 (2002). "A clear, cogent and convincing evidentiary standard is a higher standard than preponderance of the evidence, but not as stringent as the requirement of proof beyond a reasonable doubt." In re Hardesty, 150 N.C.App. 380, 385, 563 S.E.2d 79, 83 (2002).

A proceeding for termination of parental rights requires the trial court to conduct a two part inquiry. N.C.G.S. § 7B-1109(e) (2001) directs that the court first "shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. [§ ] 7B-1111 which authorize the termination of parental rights of the respondent." Disposition is governed by N.C.G.S. § 7B-1110 (2001), which provides in relevant part that upon a finding "that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent ... unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated." N.C.G.S. § 7B-1111(a) (2001).

On appeal, "[o]ur standard of review for the termination of parental rights is whether the court's `findings of fact are based upon clear, cogent and convincing evidence' and whether the `findings support the conclusions of law.'" In re Pope, 144 N.C.App. 32, 40, 547 S.E.2d 153, 158 (quoting In re Huff, 140 N.C.App. 288, 292, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)), aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001).

With regards to each respondent, the trial court found that the following ground for termination of parental rights existed:

The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 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 removal of the juvenile.

N.C.G.S. § 7B-1111(a)(2) (2001). Respondents have each argued on appeal that this finding was not supported by clear, cogent, and convincing evidence. However, respondents failed to assign this issue in their assignments of error, in violation of N.C.R.App. P. 10(a) ("scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10"). Nonetheless, in the interests of justice, and pursuant to our authority under N.C.R.App. P. 2, we elect to review the merits of respondents' argument.

In the case sub judice, it is undisputed that the juvenile was in foster care for more than twelve months prior to the filing of the petition. However, to sustain the trial court's finding that grounds existed for termination of parental rights under G.S. § 7B-1111(a)(2), we must also determine that there was clear, cogent, and convincing evidence that (1) respondents "willfully" left the juvenile in foster care for more than twelve months, and (2) that each respondent had failed to make "reasonable progress" in correcting the conditions that led to the juvenile's removal from the home. In re Bishop, 92 N.C.App. 662, 667, 375 S.E.2d 676, 680 (1989).

A parent's "willfulness" in leaving a child in foster care may be established by evidence that the parents possessed the ability to make reasonable progress, but were unwilling to make an effort. See, e.g., In re McMillon, 143 N.C.App. 402, 410, 546 S.E.2d 169, 175 (2001)

(holding willful refusal to make progress demonstrated where "tasks assigned to [respondent] were within her ability to achieve, and did not require financial or social resources beyond her means"); In re Nolen, 117 N.C.App. 693, 453 S.E.2d 220 (1995) (holding respondent's refusal to seek treatment for alcoholism constituted willful failure to correct conditions that had led to removal of child from home).

Regarding the requirement that for at least twelve months the respondents failed to make reasonable progress in addressing the problems underlying their child's removal from the home, the North Carolina Supreme Court recently held:

The legislature specifically delineated that the "reasonable progress" evidentiary standard be measured in a twelve-month increment, and in our view, the twelve-month standard envisioned by lawmakers was "within 12 months" from the time the petition for termination of parental rights is filed with the trial court.

In re Pierce, 356 N.C. at 75, 565 S.E.2d at 86 (emphasis added). In the instant case, the petition for termination of parental rights was filed 2 August 2001, so our focus is on respondents' progress during the year preceding that date.

The record indicates that petitioners had "an extensive history with [respondents,]" and that DSS had "investigated 16 reports on [respondents]" between 1990 and the date of the hearing. In 1992, two reports of improper discipline of the juvenile's sister were substantiated, and a petition was filed. Testimony from a DSS social worker indicated that both respondents were "perpetrators" of the improper discipline substantiated in 1992. After the petition was filed in 1992, Ms. Baker attended parenting classes. In 1996, two more reports of improper discipline of the juvenile's sister were substantiated, and another petition was filed against Ms. Baker. In 1997, DSS substantiated a report of sexual abuse of the juvenile's sister by Mr. Baker, and the girl was placed in DSS custody. The remaining investigations were unsubstantiated.

On 7 March 2000, DSS investigated a report that the juvenile, then ten years old, had "marks and bruises on his arms, back, and legs." Melissa Cloer, a DSS social worker, examined the juvenile at school and found "linear belt marks [on] the inside of his forearm[,]... linear marks on his back and on the front of his left thigh." Later that day, Cloer went to respondents' home to discuss the situation. When confronted about the marks on her son, Ms. Baker began yelling at the juvenile that it was "his fault" that DSS was at the house, because "he had gone to school and run his mouth." She stated that Ms. Baker had spanked the juvenile with...