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In re Wilkerson

Filed: May 4, 1982.

IN THE MATTER OF: CALVIN WILKERSON, A MINOR


Appeal by respondents from LaBarre, Judge. Judgment entered 16 February 1981 in District Court, Durham County. Heard in the Court of Appeals 5 February 1982.

Whichard, Judge. Judges Clark and Arnold concur.

Whichard

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 ...


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