Wilkerson, Matter of
| Decision Date | 04 May 1982 |
| Docket Number | No. 8114DC598,8114DC598 |
| Citation | 291 S.E.2d 182,57 N.C.App. 63 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of Calvin WILKERSON, a minor. |
Lester W. Owen, Durham County Atty. by Asst. County Atty. James W. Swindell, Durham, for petitioner-appellee.
Samuel Roberti, Durham, Guardian Ad Litem, appellee.
Lipton & Mills by Stuart S. Lipton, Durham, for respondents-appellants.
Respondents' primary contention is that the evidence was insufficient to support termination of parental rights pursuant to G.S. 7A-289.32(3), and that their motions to dismiss at the close of petitioner's evidence and of all the evidence thus should have been allowed. We disagree, and thus affirm.
G.S. 7A-289.32(3) permits termination of parental rights upon a finding that:
The parent has willfully left the child in foster care for more than two consecutive years without showing to the satisfaction of the court that substantial progress has been made within two years in correcting those conditions which led to the removal of the child for neglect, or without showing positive response within two years to the diligent efforts of a county department of social services ... to encourage the parent to strengthen the parental relationship to the child or to make and follow through with constructive planning for the future of the child.
The court made such a finding, and respondents excepted to it. They did not except, however, to any of the court's other forty-one findings of fact which set forth in detail the evidence presented at the termination hearing. Those findings are thus deemed to be supported by competent evidence and are conclusive on appeal. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962); In re Smith, 56 N.C.App. 142, 287 S.E.2d 440 (1982); Ply-Marts, Inc. v. Phileman, 40 N.C.App. 767, 253 S.E.2d 494 (1979).
The findings showed, in pertinent part, the following:
All respondents' minor children except the oldest, Gregory, have remained in foster care since their removal from respondents in May 1974. Gregory was returned to respondents in 1976 and has continued to reside with them since that date. Petitioner made extensive efforts to get Gregory enrolled in school after his return to respondents, but Gregory has attended school only six days since that time despite respondents' agreement to keep him in school.
Calvin has been in four foster homes since 1974 and has lived 71% of his life in foster care. He is presently nine years old and is experiencing psychological problems as a result of his multiple placements. He is in need of one to two years of psychotherapy. His current foster parents would like to adopt him, and Calvin has expressed a desire to be adopted by them.
When petitioner filed for termination of parental rights in September 1980, respondents were living in a trailer which was rat infested and without minimum toilet facilities. Prior to living in the trailer, respondents resided in public housing from which they were evicted because of poor sanitation and health maintenance of their living unit. Respondents would have continued to live in the rat infested trailer had they not been evicted because of its unsanitary conditions. They have since moved into an apartment which petitioner observed in December 1980 to be neat and partially furnished.
During the first six months respondents' children were in foster care respondents made regular visits, but thereafter their contacts with petitioner and with their children began to decrease. Petitioner's representative Paul Kommell worked with respondents from January to October 1978 attempting to have Gregory enrolled in school. Petitioner's representative George Lipscomb was assigned to the case from November 1978 to February 1979. Lipscomb telephoned respondents and arranged two home visits with them. On the first visit Lipscomb did not find anyone home, but heard music coming from the house. The second visit was cancelled by respondent Jerry Wilkerson because he was "too drunk to talk." Lipscomb invited respondents to come to his office for a visit, but respondents failed to keep the appointment. Lipscomb did meet respondent Minnie Wilkerson when she came to his office seeking emergency assistance. At no time during Lipscomb's assignment to the case did respondents ask to visit with Calvin.
Nancy Berson was assigned to the case from March 1979 through October 1980. Each time she met with respondents, she was threatened and verbally abused by Mrs. Wilkerson. She was therefore unable to establish any meaningful communication with respondents. She did continue to encourage respondents to visit with their children, but could not get them to agree to a scheduled visit until 12 October 1979. Respondents failed to attend the visit and failed to attend another scheduled visit on 15 February 1980. Mrs. Wilkerson did keep three appointments to visit with her children between December 1979 and July 1980. Mr. Wilkerson attended one of those visits but did not attend the May 1980 hearing or the termination hearing.
Cathy Brock was assigned to the case in October 1980 and went to great lengths to have respondents visit with their children on 30 December 1980, Calvin's birthday. Respondents failed to attend the visit. After entry of the June 1980 order Mr. Wilkerson enrolled in an alcoholic rehabilitation program, but he left without finishing it and failed to keep an appointment to establish a post-treatment plan. Mr. Wilkerson appeared to Ms. Brock to have been drinking in November 1980 when he came to her office requesting emergency assistance. Mrs. Wilkerson did not participate in psychological therapy and parent training programs as ordered by the court in June 1980.
Due to Mr. Wilkerson's alcoholism, he is not employed. Mrs. Wilkerson is employable, but has been employed only intermittently during the past six years. She did obtain employment in October 1980 and has been employed since that time. During the various periods of her employment, she failed to pay any support for the benefit of Calvin or any of her other children in foster care.
Petitioner made diligent efforts arranging visits between the minors and respondents, but respondents showed lack of interest in their children and lack of appreciation for petitioner's efforts.
As noted above, these findings are deemed supported by competent evidence. Respondents do not contend otherwise. They argue, instead, that the evidence failed to establish three of the requirements for termination of parental rights pursuant to G.S. 7A-289.32(3), viz.: (1) willfulness by the parents in leaving their child in foster care for more than two consecutive years; (2) lack of substantial progress within two years in correcting the conditions which led to the removal of the child for neglect; and (3) diligent efforts by a county department of social services to encourage the parent to strengthen the parental relationship with the child.
As to (1), the alleged absence of willfulness, respondents contend that because of their uneducated, illiterate, unemployed, and alcoholic states, and because petitioner never communicated to them a plan for Calvin's return, they never possessed the ability to remove Calvin from foster care and thus cannot be said to have left him there willfully. This argument has no merit. Although the factors recited may have rendered respond...
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