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In re Smith

Filed: March 2, 1982.

IN THE MATTER OF: SHARON DENISE SMITH, DATE OF BIRTH: 6/2/70; CHRISTOPHER MICHAEL SMITH, DATE OF BIRTH: 12/12/72


Appeal by respondent from LaBarre, Judge. Order signed 13 January 1981 in District Court, Durham County. Heard in the Court of Appeals 10 February 1982.

Martin (Harry C.), Judge. Chief Judge Morris and Judge Vaughn concur.

Martin

Respondent first contends that the trial court erred in failing to grant her motion to dismiss, arguing that petitioner "failed to submit sufficient evidence to establish a ground by which parental rights could be terminated." Respondent argues that (1) petitioner's witnesses had no first-hand knowledge of the facts in controversy; (2) petitioner relied extensively on inadmissible foster care records; and (3) petitioner relied upon inadmissible findings of fact from prior judicial proceedings. Respondent further argues that the court's conclusions of law were not supported by clear, cogent and convincing evidence, and finally that the termination of parental rights violated her right to family integrity without due process of law. We do not agree.

The statute provides in pertinent part:

Grounds for terminating parental rights. -- The court may terminate the parental rights upon a finding of one or more of the following:

(2) The parent has abused or neglected the child. The child shall be deemed to be . . . a neglected child within the meaning of G.S. 7A-278(4).

(3) 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.

N.C. Gen. Stat. ยง 7A-289.32 (Cum. Supp. 1979).

We first direct our attention to respondent's contention that the court "used the wrong statute in defining 'abandonment.'" The court's reference to N.C.G.S. 7A-517 is entirely correct. As is pointed out in the Editor's Note to N.C.G.S. 7A-289.32 (1981), section 7A-278 referred to in 7A-289.32(2) was repealed and reference is made to the North Carolina Juvenile Code, including the following definition:

(21) Neglected Juvenile. A juvenile who does not receive proper care, supervision, or discipline from his parent . . . or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, ...


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