An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-807


Filed: 4 March 2003

IN RE:                            Onslow County
LANDY MICHAEL STOVALL,                No. 01 J 206
    A Minor Child

    Appeal by respondent from order entered 14 December 2001 by Judge Paul A. Hardison in Onslow County Superior Court. Heard in the Court of Appeals 24 February 2003.

    Donald G. Walton, Jr. for petitioner-appellee.

    McNeil & Gilbert, by Joseph B. Gilbert and Annick Lenoir-Peek, for respondent-appellant.

    TYSON, Judge.

    Hugh Landis Stovall (“respondent”), biological father of minor child Landy Michael Stovall, appeals from the order terminating his parental rights. We affirm.

I. Background

    Susan McGrath (“petitioner”) and respondent married in 1986, separated in 1987, and divorced in 1991. Petitioner gave birth to the minor child during the marriage on 5 September 1986.     
    Petitioner filed to terminate respondent's parental rights on 26 July 2001, on grounds of neglect and wilful abandonment. See N.C. Gen. Stat. § 7B-1111(a)(1), (7) (2001). The district court held a hearing on the petition on 16 November 2001. Respondent,who is incarcerated in federal prison in West Virginia, was represented in court by counsel and participated in the hearing by telephone. The district court found both grounds for termination alleged in the petition and concluded that termination of respondent's parental rights was in the best interests of the minor child.
II. Issues

    Respondent claims the trial court erred in finding the minor child was neglected and abandoned, and in denying respondent's motion to dismiss the petition at the conclusion of the evidence. Respondent also excepts to the court's finding that his failure to provide financial support to the minor child was willful.
III. Termination of Parental Rights

    The termination of a party's parental rights is a two-stage process. In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). At the adjudication stage, the district court must determine if clear, cogent and convincing evidence establishes grounds for termination under N.C. Gen. Stat. § 7B-1111. See id. (citing In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997)). Our review addresses whether the court's findings of fact are supported by clear, cogent and convincing evidence, and whether its findings of fact support its conclusions of law. See In re Blackburn, 142 N.C. App. 607, 612, 543 S.E.2d 906, 909 (2001) (citing In re Allen, 58 N.C. App. 322, 293 S.E.2d 607 (1982)).
    If one or more grounds exist for termination of parental rights, the district court proceeds to the disposition stage underN.C. Gen. Stat. § 7B-1110 (2001). Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908 (2001). The court must decide whether termination would serve the best interests of the child. See id. We review the district court's ruling at the disposition stage for abuse of discretion. See id. at 614, 543 S.E.2d at 911.
    Respondent's assignments of error address issues arising in the adjudication stage. He challenges the district court's findings of abandonment and neglect under G.S. § 7B-1111(a)(1), (7), as well as the finding that he willfully failed to provide financial support to the minor child. Similarly, respondent contends the trial court erred in denying his motion to dismiss at the conclusion of the evidence. See N.C.R. Civ. P. 41(b); In re Pierce, 67 N.C. App. 257, 260, 312 S.E.2d 900, 902 (1984). Respondent “did not except, however, to any of the court's other . . . 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.” In re Wilkerson, 57 N.C. App. 63, 65, 291 S.E.2d 182, 183 (1982) (citing Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962)).
    As supported by the testimony at the hearing, the court found as follows:
        13. That the Petitioner and Respondent separated on or about September, 1987 . . . .

                        . . .

        16. That the Respondent has been incarcerated continuously since September 1988 in either State prison or federal prison at variouslocations.

        17. That the Respondent has provided no child support to the Petitioner and did not visit with the minor child following the separation of the parties.

        18. That following the incarceration of the Respondent, the Petitioner took the minor child to visit with the Respondent on at least two (2) occasions.

                        . . .

        20. That the Petitioner's mother lives at the same address and has had the same telephone number for at least fifteen (15) years.

        21. That the Respondent is aware of the Petitioner's mother's telephone number as he telephoned her during the time in which the Petitioner was proceeding with the divorce in an effort to persuade Petitioner not to go through with it.

        22. That since September, 1987 through the date this action was filed the Petitioner has not received any calls, letters or gifts from the Respondent.

        23. That other than the one (1) telephone call as aforesaid, the Petitioner's mother has not received any calls, letters or gifts from the Respondent.

        24. That subsequent to the filing of this action the Respondent has sent three (3) letters, two (2) cards and one (1) telephone call and has sent the minor child a check for $20.00.

        25. That upon receipt of the Respondent's letters, cards and $20.00 the minor child wrote a letter to the Respondent stating that he was embarrassed by the Respondent's conduct and that he (the minor child) did not desire any further contact with the Respondent.

        26. That the Petitioner did not attempt to secrete the minor child from the Respondent.

                        . . .
        29. That the Petitioner has moved many times due to her marriage to Mr. McGrath and said moves were work-related and were not done in an attempt to frustrate or prevent Respondent's contact with the minor child.

        30. That the Respondent allegedly sent correspondence to the minor child as evidenced by some xeroxed copies of envelopes presented at the hearing[;] however these were addressed to the Respondent's grandmother's house which the Respondent explained was done in the event the Petitioner visited with her.

        31. That the Court didn't (sic) find any evidence to substantiate that the Respondent has made any genuine efforts to have contact with the minor child.

        32. That in 1993 the Petitioner contacted the Respondent about her husband adopting the minor child. The Respondent didn't (sic) attempt to contact the Petitioner or the minor child as a result of said contact from Petitioner.

        33. That the Petitioner has maintained a listed telephone [number] and left forwarding addresses with each move she made.

        34. That at the time of the birth of the minor child the Respondent deposited the sum of $5,000.00 in a savings account in his name and the minor child's name and gave the account book to the Petitioner. That prior to his incarceration the Respondent withdrew the entire $5,000.00.

        35. That the Petitioner has not heard from any of the Respondent's family regarding the welfare or condition of the minor child. . . .

        36. That the Respondent has expressed his love and desire to have a relationship with the minor child.

        37. That . . . [s]ince the Respondent's incarceration he has earned approximately $2,500.00 -$3,000.00 and the Respondent has not provided any assistance for the minor child.
        38. That the actions of the Respondent evince a lack of parental concern for the minor child.

                        . . .

        40. That the minor child has a loving relationship with the Petitioner's husband Michael Anthony McGrath. That this relationship is a father/son relationship and the minor child has expressed a desire for this relationship to continue.

        41. That the Petitioner's husband intends to adopt the minor child herein. That the minor child supports the adoption by Petitioner's husband.

                        . . .

        47. That the Petitioner has proven her case by clear, cogent and convincing evidence.

        48. That the termination of the Respondent's parental rights as to the minor child herein would be in the best interest of the minor child and would promote his general health and welfare.

        52. That the court further finds that the Respondent failed without justification to pay any support for the minor child. Even though the Respondent is incarcerated he has had the means to pay some support.

    The district court may terminate a respondent's parental rights if the respondent “has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition[.]” N.C. Gen. Stat. § 7B-1111(a)(7). Under N.C. Gen. Stat. § 7B-1111(a)(1), termination of parental rights is also authorized if the respondent has “neglected the juvenile” as defined by G.S. 7B-101 (2001). Section 7B-101(15) defines a “[n]eglectedjuvenile,” inter alia, as one “who has been abandoned[.]” The willful abandonment of a minor child provides grounds for the termination of parental rights pursuant to both G.S. § 7B-1111(a)(1) and (7).
    Our court has described the standard for parental abandonment of a child as follows:
        Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child. . . . [I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and [willfully] neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.

In re McLemore, 139 N.C. App. 426, 429, 533 S.E.2d 508, 509 (2000) (quotations omitted). Although the mere fact of a parent's incarceration “neither precludes nor requires a finding of willfulness,” a parent's complete failure to communicate with or support a child during an extended period of incarceration constitutes a “clear willful abandonment[.]” Id. at 431, 533 S.E.2d at 511; see also In re Williamson, 91 N.C. App. 668, 676, 373 S.E.2d 317, 321 (1988).
    The facts described by the trial court demonstrate such an abandonment of juvenile for a continuous period of more than thirteen years, dating from the parties' marital separation in September of 1987 to the filing of the petition to terminate respondent's parental rights in July, 2001. Respondent did not dispute that he had no contact with and provided no support for theminor child from September, 1987 until the filing of the petition. Instead, he testified that he had made “several thousands” of phone calls attempting to find the child, but was unsuccessful due to petitioner's frequent changes of address. Respondent also presented photocopies of envelopes addressed to his grandmother but purportedly intended for the minor child. However, respondent failed to produce any record of his telephone usage in prison, copies of the contents of the envelopes mailed to his grandmother, or corroborating witnesses. While including respondent's assertions in its findings of fact, the trial court found no evidence to substantiate that he has “made any genuine efforts to have contact with the minor child.” The court noted respondent never contacted petitioner's mother to ascertain the minor child's whereabouts, but had telephoned her in an attempt to dissuade petitioner from seeking a divorce. Moreover, respondent had not replied to petitioner's inquiry regarding the adoption of the minor child by her current husband. The court accepted petitioner's testimony that she consistently left forwarding addresses with the post office and maintained a listed telephone number. The district court as finder of fact “determine[s] the credibility of the witnesses and the weight to be given their testimony.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000).
    Although the district court was required to consider any change in conditions since the filing of the petition in assessing respondent's neglect of the minor child, it did not err in according little weight to respondent's few gestures toward the child afterthe petition was filed. In re White, 81 N.C. App. 82, 90, 344 S.E.2d 36, 41, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 470 (1986) (citing In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984)). In light of respondent's history of neglect of the minor child dating from 1987, the court did not err in finding grounds for termination under both N.C. Gen. Stat. § 7B-1111(a)(1) and (7). We further find no abuse of discretion in the court's conclusion at the disposition stage that termination of respondent's parental rights was in the best interests of the minor child. See In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984).
IV. Financial Support

    In a separate assignment of error, respondent challenges the court's determination that he willfully failed to provide financial support for the minor child. Clear, convincing, cogent evidence supports the court's findings that respondent made no effort to maintain contact with the minor child and contributed nothing toward his support from the date of the marital separation in 1987 until the filing of the petition in 2001. During his period of incarceration, respondent earned between $2,500.00 and $3,000.00. At the time of the hearing, respondent acknowledged having $200.00 in his inmate account. Prior to his incarceration, respondent withdrew for his own use the entire $5,000.00 balance of a bank account he had established in the minor child's name. These facts support the court's conclusion that respondent had the means to contribute some amount more than zero to the care of the minor child, but willfully failed to do so. See In re McMillon, 143 N.C.App. 402, 410-11, 546 S.E.2d 169, 175, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001) (citing In re Huff, 140 N.C. App. 288, 292-93, 536 S.E.2d 838, 841-42 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001)). Defendant's assignment of error is overruled.
    Respondent's remaining assignment of error is not supported by any argument or citation to authority and is deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
V. Conclusion

    We hold that the trial court's findings of fact are supported by clear, cogent and convincing evidence in the record. The findings of fact support the trial court's conclusion of law that statutory grounds exist to terminate respondent's parental rights. We find no abuse of discretion in the trial court's ruling that it is in the best interest of the child to terminate respondent's parental rights. The judgment of the trial court is affirmed.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).

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