IN THE MATTER OF: Randolph County
JUSTIN JOE DORLAC No. 01 J 148
Thomas D. Robins, for Carol Buchanan, petitioner-appellee.
No brief filed for guardian ad litem.
Peter Wood, for Paula Dunlap, respondent-appellant.
HUDSON, Judge.
Justin Joe Dorlac was born on 19 April 1996. The respondent,
Paula Dunlap, is his mother. The petitioner, Carolyn Buchanan, is
the child's maternal grandmother. On 2 July 1996, the Randolph
County Department of Social Services (“DSS”) filed a petition
alleging that Justin was an abused and neglected juvenile. DSS was
granted non-secure custody of the child.
On 3 July 1997, nunc pro tunc 30 January 1997, Justin was
adjudicated a neglected juvenile pursuant to G.S. § 7A-517.21. The
trial court found that respondent and Billy Joe Dorlac, the child's
father, had a fight during which the child “was dropped from the
porch of the house by respondent mother while unstrapped and lyingin a car seat, and was between both respondent parents while they
continued fighting.” The court further found that respondent had
been intoxicated, and that this “caused her to be neglectful in her
role as primary care giver, especially in light of the past
domestic violence and likelihood of continued violence on the night
in question.” Custody of Justin was granted to the petitioner.
On 16 August 2001, a petition to terminate parental rights was
filed by petitioner against respondent mother and Justin's father
alleging that one or more grounds existed to support the
termination under G.S. § 7B-1111. Justin's father did not appeal
the termination of his parental rights, and thus we discuss here
only respondent mother. First, petitioner alleged that respondent
had neglected Justin in that she had not contacted him for several
years. Second, petitioner alleged that respondent had neglected
Justin by failing to pay any support since he was placed with
petitioner. Third, petitioner alleged that respondent had
willfully abandoned Justin for at least six consecutive months
immediately preceding the filing of the petition. Finally,
petitioner stated that the “conduct of the mother . . . has been
such as to demonstrate that [she] will not promote the child's
healthy and orderly physical and emotional well-being.”
On 23 May 2002 and 11 June 2002, hearings were held on the
petition to terminate respondent's parental rights. The trial
court found that Justin had “sporadic contact” with the respondent
after he was placed with petitioner, and that respondent had not
seen the child since 1999. The court further found that respondenthad not spoken with the child by phone or provided him with
birthday or Christmas cards and/or gifts. The court additionally
found that respondent has not paid any support for Justin since
1999. Thus, the trial court found and concluded that respondent
had neglected Justin within the meaning of G.S. § 7B-1111(1) in
that she had not had meaningful contact with the child in the three
years prior to the filing of the petition, and had failed to
contribute to his support since 1999. Additionally, the trial
court concluded that respondent had willfully abandoned Justin for
at least six months immediately preceding the filing of the
petition. Accordingly, the trial court found that grounds existed
to terminate respondent's parental rights, and that it was in
Justin's best interests that respondent's parental rights be
terminated. Respondent appeals.
We first consider whether the trial court committed
prejudicial error when it allowed petitioner to inquire about the
existence of prior criminal charges against Josephus Shaw,
respondent's fiancé. During petitioner's cross-examination of
Shaw, petitioner asked whether Shaw had ever been charged with a
crime. Respondent's objection was overruled and Shaw answered that
he had once been charged with theft. Respondent asserts that the
line of questioning was an impermissible form of impeachment.
Respondent contends that the questioning violated Rule 404(b) and
Rule 609(a) of the Rules of Evidence, and that the rules of
evidence do not allow a witness to be impeached by asking about
crimes for which he was only charged. We find no error. Rule 404(b) states that “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith.” G.S. 8C-1, Rule 404(b)(emphasis added). Rule 609(a)
provides for the impeachment of a witness's credibility with
evidence that the witness has been convicted of certain offenses.
Here, however, the questions asked of Shaw were not about a
conviction and were not asked to impeach his credibility as a
witness. Thus, Rule 609(a) does not apply. In addition, it does
not appear the questions were asked to prove he acted in conformity
with a bad character. Instead, it appears that the questions were
posed for the purpose of determining Shaw's suitability as a
caregiver for the child. As such, the questions were relevant and
admissible. G.S. § 8C-1, Rule 401.
Furthermore, even assuming arguendo that inquiry into whether
he had ever been charged with a crime was improper, there was no
prejudice to respondent. “In a bench trial, it is presumed that
the judge disregarded any incompetent evidence.” In re Beck, 109
N.C. App. 539, 544, 428 S.E.2d 232, 235 (1993) (citing In re Paul,
84 N.C. App. 491, 497, 353 S.E.2d 254, 258, cert. denied, 319 N.C.
673, 356 S.E.2d 779 (1987), cert. denied, 484 U.S. 1004, 98 L. Ed.
2d 646 (1988)). Additionally, the findings in the record about
Shaw related primarily to his constructive role in respondent's
life. There were no findings about his past history. Thus, the
evidence of a prior theft charge against Shaw appears to have had
little or no bearing on the court's decision to terminate herparental rights. Accordingly, the assignment of error is
overruled.
Respondent next argues there was insufficient evidence to
support the trial court's findings of fact and conclusions of law.
Regarding the finding of neglect, respondent contends the trial
court failed to consider her present ability to care for her child.
Respondent asserts that her living situation had improved markedly
by the time of the hearing. Regarding the finding of abandonment,
respondent asserts that her conduct should not have been considered
willful because of the interference with visitation by the
petitioner. Respondent claims that she had a hostile relationship
with petitioner, who did not allow her to see Justin despite her
numerous requests.
After careful review of the record, briefs and contentions of
the parties, we affirm. G.S. § 7B-1111 sets out the statutory
grounds for terminating parental rights. A finding of any one of
the separately enumerated grounds is sufficient to support a
termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233-34 (1990). “[T]he party petitioning for the termination must
show by clear, cogent, and convincing evidence that grounds
authorizing the termination of parental rights exist.” In re
Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997)(citing G.S.
7A-289.30(d) and (e)).
In the case sub judice, the trial court concluded that
respondent had neglected Justin in that she had not had meaningful
contact with him since the adjudication of neglect in 1997. “[I]ndetermining whether neglect has occurred, 'the trial judge may
consider . . . a parent's complete failure to provide the personal
contact, love, and affection that inheres in the parental
relationship.'” In re Mills, 152 N.C. App. 1, 7, 567 S.E.2d 168,
170 (quoting In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813
(1982)). The court found that respondent had not seen Justin since
1999, had sent neither cards or gifts for holidays or birthdays,
and had failed to contribute anything to his support. While
respondent argues that the court failed to consider her changed
circumstances, the record is clear that her relationship with
Justin has remained unchanged. As conceded by respondent on cross-
examination, she has “done nothing” for Justin since 1997. See In
re Yocum, _ N.C. App. _, _, 580 S.E.2d 399, 403 (2003)(“respondent
neglected the minor child's welfare, in that he never paid any
child support for the minor child and did not send the minor child
any gift or other type of acknowledgment on her birthday”). Thus,
the trial court could properly conclude that respondent had
neglected Justin within the meaning of G.S. § 7B-1111(1).
Since grounds exist pursuant to G.S. § 7B-1111(1) to support
the trial court's order, the remaining grounds found by the trial
court to support termination need not be reviewed by the Court.
Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34. Accordingly, the
order terminating respondent's parental rights is affirmed.
Affirmed.
Judges MCGEE and GEER concur.
Report per Rule 30(e).
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