An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1322

NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2003

IN THE MATTER OF:

ASHLEY HUTCHINS                 Buncombe County                     &n bsp;      
                            No. 99 J 249
                                          &nb sp;     

    Appeal by respondent from judgment entered 27 September 2001 by Judge Gary S. Cash in Buncombe County Superior Court. Heard in the Court of Appeals 23 April 2003.

    James N. Freeman, Jr. for respondent appellant.

    The McDonald Law Office P.A., by Diane K. McDonald for petitioners appellees.

    TIMMONS-GOODSON, Judge.

    Philip Allen Hutchins (“respondent”) appeals from judgment terminating his parental rights to his daughter, Ashley Hutchins (“juvenile”). For the reasons set forth herein, we affirm the judgment of the trial court.
    Respondent and Angela Morgan (“Morgan”) are the natural parents of juvenile at issue in the instant appeal. Respondent and Morgan never married. Theresa Ann Searcy (“Theresa”) is the maternal aunt of Morgan. Juvenile was born on 19 February 1996. Shortly after her birth, juvenile lived with Theresa and her husband, Noah Searcy (referred to collectively as, “petitioners”) for extended periods of time. By April 1996, juvenile was permanently residing with petitioners in their home.     On 14 September 1999, petitioners filed a petition to terminate respondent's parental rights. The petition alleged the following: (1) respondent had willfully left juvenile in a placement outside of the home for more than twelve months without showing reasonable progress; (2) juvenile had been in the custody of petitioners for a continuous period of more than six months; and (3) respondent willfully abandoned juvenile for at least six consecutive months preceding the filing of the petition for termination of parental rights.
    In response to the petition, respondent sought a consent order for visitation with juvenile. On 27 April 2000, the trial court signed a consent order, in which the parties agreed to supervised therapeutic visits between respondent and juvenile. The order further provided that respondent would seek a psychiatric or psychological evaluation.
    After several visits between juvenile and respondent, the hearing to terminate respondent's parental rights came before the trial court on 16 August 2000. The matter was heard over a course of three days. Petitioners were present at the termination hearing and represented by counsel. Respondent was present at the hearing and represented by counsel. Morgan was not represented by counsel, but testified on behalf of petitioners. At the time of the trial, juvenile was five years old and had resided with petitioners' for five years. Juvenile was represented at trial by a guardian ad litem.     The trial court heard lengthy testimony regarding respondent's mental illness, supervised visits between respondent and juvenile, and respondent's ability to care for juvenile. The following evidence was presented at trial: Darren Boice (“Boice”) testified that he observed a total of four therapeutic visits between juvenile and respondent in June, July, and August, 2000. During the visits, Boice observed juvenile to be closely bonded with petitioners, but able to interact with respondent. Boice explained that respondent was not a strong or assertive person and needed assistance to provide boundaries for juvenile.
    Dr. Smith Goodrum (“Dr. Goodrum”), a clinical psychologist, testified on behalf of respondent. Dr. Goodrum performed a psychological assessment on respondent in July and August, 2000. Dr. Goodrum testified that respondent's mental health fit a pattern of schizophrenia. At the time of the psychological assessment, respondent was able to resume his life with treatment and the proper medication. Testimony from Dr. Goodrum revealed that respondent felt that petitioners' attitude toward him was demeaning. Dr. Goodrum further explained that respondent was capable of having visits with juvenile, but was compelled to seek custody of juvenile due to petitioners' negative behavior towards his visits with juvenile. The testimony of Dr. Goodrum further revealed that he was concerned about petitioners' motivation to gain custody of juvenile, and he opined that petitioners may be passive aggressive toward respondent. Due to respondent's mental illness, Dr. Goodrum opined that juvenile might be geneticallypredisposed to schizophrenia or depression, and was in need of a secure setting during her developmental years.
    Cassandra Pavone (“Pavone”), a clinical social worker, testified on behalf of respondent. Testimony from Pavone revealed that respondent contacted her to set up therapeutic visits with juvenile. Thereafter, Pavone supervised four visits in 2001. Pavone explained that respondent was cooperative and sincere in wanting to secure a relationship with juvenile; however, petitioners' were apprehensive about the process of therapeutic visitation. As the visits proceeded, Theresa informed juvenile that respondent was her father. Pavone testified that upon learning respondent's identification, juvenile was more affectionate toward him during visits. In Pavone's opinion, respondent was capable of setting appropriate boundaries for juvenile, but needed assistance with parenting a child.
    Based on the above evidence, testimony from respondent, and testimony from Theresa, the trial court made the following pertinent findings of fact:
        . . . .
        
        25. That at some time in the summer of 1999, petitioners mailed to respondent and to . . . Morgan requests for their consent to allow petitioners to adopt [juvenile]; that [Morgan] signed a consent to allow that adoption but respondent threw said papers away and did not respond to petitioners.
        
        . . . .
        
        27. That on September 14, 1999, having had no communication from respondent since mid February of 1998, and still not knowing of respondent's whereabouts, his military serviceor his mental illness, petitioners filed a petition to terminate said respondent's parental rights to [juvenile]; . . . that respondent filed a pro se answer to said petition denying its allegations on October 13, 1999, and a further responsive pleading along with a motion for a visitation schedule with [juvenile]. . .
        
        28. That during the year 1999, neither [juvenile] nor petitioners received any communication or contact from respondent; that they never received any cards or letters from him or clothing or other items or communication intended for [juvenile]; that during all of this time as in the prior years, petitioners resided at the same address they had previously resided.
        
        29. That from the time that [juvenile] came to live exclusively with the petitioners in April 1996 until the time of the filing of the termination of parental rights petition herein, respondent provided no financial support for [juvenile] to petitioners; that respondent did provide diapers for [juvenile] on one occasion in 1996 and may have, during the same year, made some statement to petitioners regarding his willingness to pay them some money; that petitioners never requested money of the respondent and declined to receive social security or other governmental benefits due to the respondent's disability for which they might be entitled due to their being the custodians for [juvenile].
        
        . . . .
        
        44. That respondent . . . testified before this Court and responded appropriately to direct and cross-examination; that he exhibited no signs of unusual behavior in the courtroom; that he was competent to handle his affairs and to initiate requests for visitation or other contact or involvement with [juvenile] up until a time shortly before his admission into the . . . hospital . . . and regained sufficient competency to initiate communication with [juvenile] and/or petitioners following his release from the . . . hospital . . . in February, 1999; that he isappropriately managing his paranoid schizophrenia with medication at this time and would be fit and proper to exercise visitation with [juvenile] provided said visitation was loosely supervised.
        
        . . . .
        
        47. That [juvenile] needs a stable home with a consistent relationship with family members and with a minimization of conflict; that it appears likely that the conflict will continue between petitioners and respondent if respondent has Court ordered visitation with [juvenile] and that [juvenile] would be exposed to this conflict; that it also appears likely, that if respondent has Court ordered visitation with [juvenile], that respondent will repeat his behavior of not initiating contact with [juvenile] for substantial periods of time when he becomes frustrated due to respondent's need to be supported in exercising his visitation, his difficulty in dealing with stress, his passiveness and his history of being sporadic in visitation both prior to and after the filing of the termination of parental rights petition herein.
        . . . .
        
        52. That the respondent . . . has neglected [juvenile], . . . in that he has not provided her with proper care, supervision or discipline, and there is a probability of repetition of said neglect based on the respondent's neglect of said juvenile both before and after the filing of the termination of parental rights petition herein, . . .

Based on the above-stated findings, the trial court entered the following conclusions of law:
        . . . .
        
        2. That the respondent, . . . has willfully abandoned [juvenile] . . . for at least six consecutive months immediately preceding the filing of the petition herein.
        
        3. That the respondent, . . . has neglected [juvenile], . . . in that he has not providedher proper care, supervision or discipline, and there is a probability of a repetition of said neglect.

        4. That the petitioners herein are fit and proper persons to have the care, custody and control of [juvenile], and it is in the best interests of said [juvenile] that the parental rights of respondent . . . be terminated.

The trial court therefore terminated respondent's parental rights to juvenile. Respondent appeals the judgment of the trial court.

__________________________________

    Respondent presents three assignments of error on appeal, arguing that (1) there was not clear, cogent and convincing evidence that he abandoned juvenile; (2) there was not clear, cogent and convincing evidence that respondent neglected juvenile; and (3) the trial court abused its discretion by concluding that it was in the best interests of juvenile to terminate respondent's parental rights. For the reasons stated herein, we affirm the trial court.
    A proceeding for the termination of parental rights involves two stages: (1) the adjudicatory stage, governed by section 7B- 1109, and (2) the dispositional stage, governed by section 7B-1110. See N.C. Gen. Stat. §§ 7B-1109, 7B-1110 (2001); In re Huff, 140 N.C. App. 288, 290, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). At the adjudicatory stage, the petitioner must show by “clear, cogent and convincing evidence” the existence of one or more of the statutory grounds for termination of parental rights set fourth in section 7B-1111. N.C. Gen. Stat. § 7B-1109(e) and (f) (2001); In re Montgomery, 311 N.C.101, 110, 316 S.E.2d 246, 252 (1984). The clear, cogent and convincing evidentiary standard is a greater standard than the preponderance of the evidence standard, but not as rigorous as the proof beyond a reasonable doubt requirement. See In re Montgomery at 109-110, 316 S.E.2d at 252. The trial court may terminate the parental rights on the basis of several grounds, and “[a] finding of any one of the . . . separately enumerated grounds is sufficient to support a termination.” In re Pierce, 67 N.C. App. 257, 261, 312 S.E.2d 900, 903 (1984). In a termination proceeding, this Court “should affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law.” In re Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996).
    In his first assignment of error, respondent contends that there was not clear, cogent and convincing evidence that he willfully abandoned juvenile, and that the trial court therefore erred in otherwise finding. We disagree.
    In the case at bar, the trial court found and concluded that respondent willfully abandoned juvenile as set fourth in section 7B-1111(a)(7) of the North Carolina General Statutes. Under this section willful abandonment is defined as follows:
        
        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, . . .
N.C. Gen. Stat. § 7B-1111(a)(7) (2001). “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.” In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). “The word willful encompasses more than an intention to do a thing; there must also be purpose and deliberation.” Id. The finding of whether a parent has willfully abandoned his child is a question of fact to be determined from the evidence. Id.
    In the instant case, since the petition for terminating respondent's parental rights was filed on 14 September 1999, respondent's behavior between 14 March 1999 and 14 September 1999 is determinative. Theresa gave testimony regarding respondent's lack of communication with petitioners' or juvenile for a continuous period of nineteen months. According to Theresa, in February, 1998 there was a consent order entered granting certain visitation rights to respondent. Theresa testified that from February, 1998 through September, 1999, respondent failed to communicate his whereabouts to petitioners or juvenile. Further, respondent failed to provide petitioners with his address or telephone number during a nineteen month period of time. Moreover, the evidence at trial revealed that from 1996 until the date of trial, respondent failed to provide any financial support for juvenile.
    Testimony from respondent revealed that in May, 1998 he joined the military and moved to Georgia. Respondent testified that hedid not inform petitioners that he was moving to Georgia or joining the military. There was ample testimony that respondent visited juvenile in petitioners' home prior to moving to Georgia and that petitioners' telephone number was listed in the telephone directory; however, respondent testified that he did not have petitioners' address or telephone number. Further testimony revealed that although respondent sent postcards, they were directed to Morgan, irrespective of the fact that he was aware that juvenile resided with petitioners. The evidence failed to show that the postcards mailed to Morgan were for the benefit of juvenile. Moreover, respondent testified that he believed that Morgan terminated her parental rights to juvenile in 1996.     
    In February, 1999, respondent was discharged from the military and placed on “retired” status. Upon his discharge, respondent returned to North Carolina after six months of hospitalization for a mental illness. Respondent testified that in “late 1999" he received a request for consent to allow petitioners to adopt juvenile, but “he discarded those papers.” At that time, respondent did not attempt to contact petitioners and did not seek visitation until he received the petition to terminate his parental rights. Furthermore, respondent's testimony revealed that he did not communicate with juvenile from May, 1998, when he joined the military, until September, 1999. This conduct displays a willful abandonment of juvenile by respondent. We conclude that the trial court's findings of fact support its conclusion that respondent abandoned juvenile for a period of six months prior to the filingof the petition for termination of his parental rights. Thus, the trial court did not err.
    By his second assignment of error, respondent argues that the trial court committed error in finding that he neglected juvenile. Respondent contends that there was not clear, cogent, and convincing evidence that he neglected juvenile.
    Because we have upheld the trial court's findings and conclusion regarding willful abandonment, we need not address respondent's assignment of error contesting termination based on neglect. A finding of any one of the enumerated termination grounds is sufficient to support the order of the trial court. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990).
    In his final assignment of error, respondent argues that the trial court abused its discretion in concluding that it was in the best interests of juvenile to terminate respondent's parental rights. We disagree.
    “Once the court has determined that grounds for terminating parental rights are present, the court then 'moves to the disposition stage to determine whether it is in the best interests of the child to terminate the parental rights.'” In re Leftwich, 135 N.C. App. 67, 71, 518 S.E.2d 799, 802 (1999) (quoting In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 615 (1997)). Upon finding adequate grounds for termination of parental rights, either party may offer relevant evidence as to the child's best interests. In re Pierce, 356 N.C. 68, 76, 565 S.E.2d 81, 86 (2002). “Such evidence may therefore include facts or circumstances demonstratingeither: (1) the reasonable progress of the parent, or (2) the parent's lack of reasonable progress that occurred before or after the twelve-month period leading up to the filing of the petition for termination of parental rights.” Id. at 76, 565 S.E.2d at 86- 87. The trial court's decision to terminate parental rights is reviewed on an abuse of discretion standard. See In re Brim, 139 N.C. App. 733, 745, 535 S.E.2d 367, 374 (2000); see also In re Allred, 122 N.C. App. at 569, 471 S.E.2d at 88.
    The evidence supports a finding and conclusion that respondent willfully abandoned juvenile. Morgan testified that she signed a consent order to allow petitioners to adopt juvenile. It is well within the trial court's discretion to conclude that the child's best interests would be served by terminating respondent's parental rights so that adoption could take place. Furthermore, there was evidence that after the petition was filed, respondent's visits with juvenile were sporadic and he often went lengthy periods of time without contacting petitioners or juvenile. Therefore, the trial court did not abuse its discretion in concluding that juvenile's best interests would be served by termination of respondent's parental rights.
    In conclusion, we hold that the trial court did not err in terminating respondent's parental rights to juvenile. The order of the trial court is therefore
    Affirmed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***