NO. COA02-645

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

    Appeal by respondent from judgments entered 30 October 2001 and 26 November 2001 by Judges Robert Anderson and Edward McCormick, respectively, in Johnston County District Court. Heard in the Court of Appeals 29 January 2003.

    Woodruff, Reece & Fortner, by Dionne Loy Fortner and Michael J. Reece, for petitioner-appellee.

    Terry F. Rose for respondent-appellant.

    STEELMAN, Judge.

    Respondent, James Garner, appeals the termination of his parental rights to Brandon James Garner, born 30 November 1995, and Ciara Nicole Garner, born 22 October 1997. For the reasons discussed herein, we affirm.
    Petitioner, Stacy Renee Wood, is the natural mother of Brandon and Ciara, who currently reside with her and her husband, Michael Wood. On 16 February 2001, petitioner filed separate petitions to terminate respondent's parental rights to Brandon and Ciara on the basis that: (a) respondent unjustifiably failed to pay childsupport, even though an order was put into place on 6 June 1998; and (b) respondent abandoned the children by not visiting or attempting to make contact with them for six consecutive months immediately preceding the filing of the petitions.
    On 30 October 2001 and 26 November 2001, the trial court filed nearly identical orders terminating respondent's parental rights to Brandon and Ciara. In the orders, the trial court found, inter alia, that: (1) respondent was ordered to pay $350.00 per month in child support pursuant to a June 1998 order; (2) respondent did not make any child support payments for 31 months prior to the filing of the petitions; (3) respondent was jailed several times in 1998 and 2000; (4) he resided at a halfway house from 27 December 2000 to 27 March 2001, during which he was employed; (5) respondent was employed for most of the time when he was not incarcerated; (6) respondent stated that he did not pay child support to spite petitioner and not because of his alcoholism or incarcerations; (7) there has been no justifications for respondent's failure to pay child support for one year prior to the filing of the petitions; (8) Brandon and Ciara were adjudicated neglected; (9) respondent told DSS he had the means to support Brandon; (10) in December 1998, respondent took Ciara from day care without petitioner's knowledge and was later arrested; (11) respondent had visitation which was to be supervised by his parents, with whom he lived; (12)respondent did not exercise any form of visitation or contact after the 16 December 1998 order and throughout 1999; (13) respondent testified that his convictions for larceny, burglary, worthless checks, obtaining property by false pretenses and driving while license revoked were linked to his alcohol abuse from 1998 to 2000; (14) respondent stated he did not pursue visitation because of outstanding warrants against him in North Carolina; and (15) respondent's inability to visit the children was the result of willful and intentional conduct constituting abandonment.
    The trial court concluded that because grounds for terminating respondent's parental rights were found pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(4) (respondent has for a period of at least one year willfully failed to pay for the care, support and education of the children) and 7B-1111(a)(7) (respondent has for a period of six consecutive months willfully abandoned the children), it was in the best interests of the children that his parental rights be terminated. Respondent appeals.
    There is a two-step process in a termination of parental rights proceeding. In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001). In the adjudicatory stage, the trial court must find that at least one ground for the termination of parental rights listed in N.C. Gen. Stat. § 7B-1111 exists. N.C. Gen. Stat. § 7B-1109 (2001). The court's decision must be supported by clear,cogent and convincing evidence. Id. If one or more of the grounds for termination is established, the trial court then proceeds to the disposition stage and must consider whether termination is in the best interest of the juvenile(s). N.C. Gen. Stat. § 7B-1110(a) (2001). The court shall issue an order terminating the parental rights unless it further determines that the best interests of the juvenile(s) require that the respondent's parental rights not be terminated. N.C. Gen. Stat. § 7B-1110(a) (2001). See generally, In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001).
    We further note that where the trial court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law, the appellate court should affirm the trial court in a termination of parental rights proceeding. In re Small, 138 N.C. App. 474, 477, 530 S.E.2d 104, 106 (2000).
    In his first assignment of error, respondent argues the trial court erred and abused its discretion by concluding respondent had willfully abandoned his children for six consecutive months preceding the filing of the petitions to terminate his parental rights pursuant to section 7B-1111(a)(7). We disagree.
    Section 7B-1111(a)(7) provides that:
(a) The court may terminate the parental rights upon a finding of one or more of the following: . . .     (7) The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B-500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.
N.C. Gen. Stat. § 7B-1111(a)(7) (2001). Abandonment is the willful neglect and refusal to perform the natural and legal obligations of parental care and support. In re Apa, 59 N.C. App. 322, 296 S.E.2d 811 (1982). Whether a parent has a willful intent to abandon a child is a question of fact to be determined from the evidence. In re Searle, 82 N.C. App. 273, 346 S.E.2d 511 (1986).
    In the instant case, the petitions were filed on 16 February 2001. From 16 August 2000 to 16 February 2001, respondent was incarcerated and then living at a halfway house. He was allowed to have employment while at the halfway house. However, only one payment of $22.18 was received 23 April 2001 pursuant to a wage withholding order, after the filing of the petitions to terminate parental rights.
    Respondent argues that he was unable to have contact with his children due to his incarceration. Incarceration alone is not sufficient to demonstrate willful abandonment. In re Maynor, 38 N.C. App. 724, 248 S.E.2d 875 (1978). Nonetheless, “if a parent withholds his presence, his love, his care, the opportunity todisplay filial affection, and [willfully] neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child,” despite the fact of incarceration. In re McLemore, 139 N.C. App. 426, 429, 533 S.E.2d 508, 509, rev. denied, ___ N.C. ___, 545 S.E.2d 429 (2000)(citing Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)).
    In McLemore, this Court held that although a respondent's incarceration, standing alone, neither precludes nor requires a finding of willfulness, one attempted contact during the relevant statutory period compels a finding of willful abandonment, despite respondent's incarceration during the relevant time period under consideration. McLemore, 139 N.C. App. at 431, 533 S.E.2d at 511. Respondent has failed to pay child support and has failed to visit or make contact with his children for the entire six months prior to 16 February 2001. Even after he was released from prison on 27 December 2000, respondent did not contact his children. By respondent's own admission, he purposely did not pursue visitation for fear of outstanding criminal warrants in North Carolina. Consequently, we hold that the trial court did not err in concluding that respondent abandoned his children.
    In his second assignment of error, respondent contends that the trial court erred in finding pursuant to section 7B-1111(a)(4) that respondent willfully failed without justification to pay forthe care, support and education of the children for a period of one year next preceding the filing of the petitions. We disagree.
    A valid consent order was entered by the trial court on 12 June 1998 that required respondent to pay petitioner $350.00 per month for the support and maintenance of the two minor children. The support order remained in full force and effect at all times relevant to the petitions. In the order, petitioner was awarded primary physical custody, with respondent retaining visitation rights on every other weekend and every other Wednesday. On 18 December 1998, the custody order was modified, giving sole custody to petitioner.
    From 16 February 2000 to 16 February 2001, respondent spent a significant amount of time incarcerated. However, during the time he was not incarcerated, 16 February 2000 to 9 March 2000 and 27 December 2000 to 16 February 2001, respondent made no payments for the support of the two minor children. Consequently, we hold the trial court did not err in concluding that respondent willfully failed without justification to pay for the care, support and education of the children for a period of one year next preceding the filing of the petitions as required by the December 1998 order. We therefore affirm the ruling of the trial court terminating respondent's parental rights on each of these two grounds.
    In his third assignment of error, respondent argues the trialcourt erred in basing its decision upon events that occurred in 1998 and 1999, and not within the applicable six-month or twelve- month period prior to the filing of the petitions. We disagree.
    The trial court made several findings of fact which spanned the time period from 1998 to 2001. Although some of respondent's inaction occurred outside of that time contemplated by sections 7B- 1111(a)(7) and 7B-1111(a)(4), the trial court did make appropriate findings as to the proper times set forth in the applicable statutes. We therefore hold that respondent was not prejudiced by the trial court's findings of fact concerning events from 1998 and 1999.
    AFFIRMED.
    Judges MARTIN and HUDSON concur.
    Report per Rule 30(e).

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