IN THE MATTER OF:
NICOLE HOPE YOCUM
A Juvenile.
Sofie W. Hosford for respondent appellant.
Charles W. Porter for petitioner appellee.
TIMMONS-GOODSON, Judge.
Adam Jermaine Austin (respondent) appeals the order
terminating his parental rights as to his daughter, Nicole Hope
Yocum (the minor child). For the reasons stated herein, we
affirm the order of termination by the trial court.
The facts pertinent to the instant appeal are as follows:
Respondent and Brenda Lee Yocum (petitioner) are the natural
parents of the minor child. Respondent and petitioner have never
married. Prior to the birth of the minor child, respondent and
petitioner sought pre-adoption counseling; however, respondent
rejected the idea of adoption. On 13 February 1999, the minor
child was born in Rowan County.
On 5 June 2001, petitioner filed a petition to terminate the
parental rights of respondent. The petition alleged that
respondent failed to establish paternity, failed to support theminor child, abandoned the minor child and failed to communicate
with the minor child. The matter came before the trial court on 24
September 2001. Respondent appeared and was represented by counsel
at the termination hearing. Based on the evidence presented at the
hearing, the trial court made the following pertinent findings of
fact:
7. Respondent Father, Adam Austin, is 28
years old, incarcerated in North Carolina
Department of Corrections for multiple
consecutive sentences of Felony Breaking and
Entering and has a projected release date of
December 25, 2006. He has previously been
incarcerated in North Carolina Department of
Corrections in 1995 and released in January,
1997 without benefit of early release after
having served a full term for Felony Indecent
Liberties with a child and multiple probation
violations.
. . . .
9. The father has been employed:
a. while incarcerated, from May, 2001 to
present on a road crew and earned 70 cents per
day, 5 days per week; all moneys were used
for his personal expenses. None of these
moneys were applied in direct cash toward
support of the child nor was any of it used as
a resource to make any telephone, US Mail or
any other contact with the child.
b. while incarcerated, February, 2001 to May,
2001 in the prison kitchen and earned 40 cents
per day, 5 days per week; all moneys were used
for his personal expenses. None of these
moneys were applied in direct cash toward
support of the child nor was any of it used as
a resource to make any telephone, US Mail or
any other contact with the child.
c. for two months duration prior to
incarceration on February 1, 2000 at Draftex
Corporation. Prior to Draftex, he was
employed at Superior Lawn Service. Prior to
Superior Lawn Service, he was employed atApplebee's restaurant for approximately one
year. At all three of the above jobs, he
earned a paycheck every two weeks. The exact
amount is unknown but he was able to meet his
ongoing expenses of rent, food and clothing.
None of these moneys were applied in direct
cash toward support of the child nor was any
of it used as a resource to make any
telephone, US Mail or any other contact with
the child.
10. He was consistently employed from 02-13-
99 to his incarceration on 02-01-00. While
incarcerated he was employed in the kitchen
from February, 2001 to May, 2001 and a road
crew from May, 2001 to the present. All
income received was used for his personal
expenses. From birth, 02-13-99 to the time of
trial, Respondent Father never paid any cash
monetary support to the child or to the mother
for the child's benefit.
11. A Voluntary Support Agreement for $189
per month was entered into by the Respondent
Father on January 13, 2000 and no money has
ever been paid pursuant to that Agreement.
12. The Respondent Father, accompanied by the
paternal grandmother, visited the child and
mother on at least 4 occasions but no more
than 5 occasions at the Rockwell residence
with maternal grandmother present. Each visit
lasted no longer than 30 minutes. On the
first two visits during the 1st month of the
child's life, the Respondent Father brought
clothing and blankets for the child.
Respondent Father never brought any goods in
kind after that.
13. The Respondent Father telephoned the
mother and maternal grandmother to make
arrangements for additional visits. The
father acknowledged that after setting up the
additional visits, he did not show up for them
because of transportation conflicts.
14. The paternal grandmother telephoned the
mother and maternal grandmother prior to the
respondent's incarceration to set up her own
visits with the child and suggested Walmart or
K-Mart as a potential location. No agreement
was reached for those visits.
15. Respondent Father acknowledged that he
failed to communicate with the child by
acknowledging that he never mailed any cards,
letters nor gifts to the child on her
birthday, Christmas, other special occasion or
at any time since birth to the time of trial,
a period of 2 years and 7 months, nor did he
communicate in any other way with the child
since birth.
16. Respondent Father never gave any presents
for the child through the Angel Program, a
charitable program that provides inmates the
opportunity to send Christmas Presents to
their children, nor any other Charitable
program even though the Angel Program was
available to him.
17. The mother has signed a consent for
adoption, and has consistently desired to
place the child for adoption because she feels
the child needs both a mother and father. The
mother acknowledges she cannot raise the child
by herself.
18. Alternatives to adoption have been
explored by the mother by placing the child
with her brother in Texas for several months.
19. The mother has received Government Aid in
the form of Food Stamps and Medicaid to assist
her financially with the child from birth to
the present.
20. In the last 2 months before trial, the
Paternal Grandmother has left notes at the
mother's Salisbury address for the purpose of
establishing visitation for herself.
Respondent father has placed 2 collect phone
calls to the mother.
Based on the above-stated findings, the trial court entered the
following conclusions of law:
4. Respondent Father has willfully and
intentionally evinced a settled purpose to
forego all parental duties and has
relinquished all parental claims to his child.
5. Respondent father has willfully neglected
and refused to perform the natural and legal
obligations of parental care and support. He
has withheld his presence, his love, his care,
the opportunity to display filial affection
and has willfully neglected to lend any
support or maintenance for the child.
6. Grounds exist to terminate the parental
rights of the respondent father in that he has
abandoned this child pursuant to NCGS 7B-
1111(a)7.
7. The child does not receive the proper
care, supervision nor discipline from the
Respondent father.
8. The Respondent Father has not provided
necessary medical care or remedial care.
9. Grounds exist to terminate the parental
rights of the respondent father in that he has
neglected the child pursuant to NCGS 7B-
1111(a)1.
10. It is in the best interests of the child
for the Respondent Father's parental rights to
be terminated as the mother has consistently
felt that this child needed both a mother and
father to raise the child, has acknowledged
that she cannot raise the child herself and
has consented to adoption.
The trial court therefore terminated respondent's parental rights
to the minor child. Respondent appeals.
TYSON, Judge, dissenting.
I respectfully dissent from the majority opinion's affirming
the trial court's termination of respondent's parental rights. The
trial court concluded that respondent had abandoned and neglected
the child, and grounded its decision to terminate pursuant to
N.C.G.S. § 7B-1111(a)(7) and N.C.G.S. § 7B-1111(a)(1). I do not
find clear, cogent and convincing evidence in the record to support
the trial court's findings of fact and its conclusions of law. I
would remand to the trial court for further findings of fact.
The parental liberty interest 'is perhaps the oldest of the
fundamental liberty interests' the United States Supreme Court has
recognized. Owenby v. Young, __ N.C. ___, ___ S.E.2d __
(2003)(quoting Troxel v. Granville, 530 U.S. 57, 65, 147 L. Ed. 2d
49, 56 (2000)). The clear, cogent and convincing evidence standard
is greater than the preponderance of the evidence standard
required in most civil cases and safeguards this liberty interest.
In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984).
This standard has been defined as evidence which should fully
convince. Williams v. Building & Loan Asso., 207 N.C. 362, 364,
177 S.E. 176, 177 (1934).
I find substantial evidence supports respondent's contention
that petitioner, who waived her parental visits with respect to the
minor child before the hearing, interfered in the respondent'srelationship with his daughter. Petitioner kept written records of
the times respondent called and visited his daughter. These
records show respondent communicated with petitioner at least
twenty times during a period of nine months prior to his
incarceration. Respondent also visited with his daughter four or
five times during the year between her birth and his incarceration.
Respondent and his mother called petitioner at her mother's home to
schedule times to visit his daughter. They were informed on
numerous occasions by petitioner or her mother not to visit or were
discouraged from visiting. Petitioner secreted the child by
sending her to live with her brother in Texas for six months during
respondent's incarceration. After petitioner moved out of her
mother's home and during respondent's incarceration, respondent's
mother traveled to petitioner's home to visit her granddaughter
several times, visiting once and leaving notes for petitioner the
other times.
There is no dispute that respondent and his mother brought
clothes and blankets for his daughter. Record evidence shows
respondent and his mother offered petitioner money and other items
to support the daughter that were refused by petitioner.
Petitioner's behavior evidences an intent to shut respondent out of
his daughter's life. Neither the trial court's order nor the
majority's opinion accounts for either this interference or its
effect on respondent's ability for parental involvement. The trial
court's order makes no findings of fact in this regard. The statute requires a finding of existing neglect at the time
of the hearing to terminate parental rights on that ground. In re
Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984). The trial
court failed to make a finding of existing neglect at the time of
its order. The trial court relied upon its findings that while
incarcerated respondent had not written his daughter, arranged for
her to receive Christmas gifts through the prison's Angel Program,
or paid any child support to petitioner. Incarceration, standing
alone, is neither a sword nor a shield in a termination of parental
rights decision. See In re Maynor, 38 N.C. App. 724, 248 S.E.2d
875 (1978). Respondent's severely limited income prevented him
from providing support to his daughter. After reviewing all
competent evidence in the record, I fail to find clear, cogent, and
convincing evidence to support the finding of neglect existing as
of the date of the hearing.
Respondent's mother has been certified as a foster parent with
the Department of Social Services for five years and is willing to
provide a home for the child. The trial court failed to consider
any placement possibility with the child's natural family. I would
vacate the trial court's termination of respondent's parental
rights and remand this case for further findings of fact based upon
the clear, cogent, and convincing evidence in the record. I
respectfully dissent.
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