An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-29


Filed: 6 April 2004


L. N. B.,                            Wayne County             
    A Minor Child.                    No. 02 J 51

    Appeal by respondent from judgment entered 22 August 2002 by Judge R. Les Turner in the District Court in Wayne County. Heard in the Court of Appeals 13 November 2003.

    E. B. Borden Parker, for petitioner-appellee.

    Michael J. Reece, for respondent-appellant.

    HUDSON, Judge.

    On 2 March 2002, petitioner, the Director of the Wayne County Department of Social Services, filed a petition for termination of respondent-appellant's parental rights to his daughter, L.N.B., born 15 December 1998. The petition alleged that respondent had willfully abandoned L.N.B. for a period of six or more months. Following a hearing on 22 August 2002, the district court in Wayne County terminated respondent's parental rights. Respondent appeals, contending that the court made findings that were not supported by clear, cogent and convincing evidence, concluded improperly that grounds existed for the termination of his parental rights, and abused its discretion in concluding that termination would be in L.N.B.'s best interests. For the reasons discussed below, we affirm.    Josie Allen (“Allen”), a foster care social worker, worked on L.N.B.'s case for one and a half to two years before the hearing. Allen testified that respondent is L.N.B.'s father, and that the parental rights of L.N.B.'s mother, A.M.B., were terminated two weeks prior to respondent's hearing. The permanent plan for L.N.B. if respondent's parental rights were terminated was for L.N.B.'s maternal grandmother to adopt her. Allen testified that respondent had never asked her about L.N.B. nor sent any money to L.N.B.'s mother or the Department of Social Services for L.N.B.'s support.
    Respondent testified that he is incarcerated at Wayne Correctional Institute with an anticipated release date in 2007. He last saw L.N.B. 31 December 1998, but said that he had written to L.N.B.'s grandmother and sent birthday cards to L.N.B. He testified that he had contacted Angel Tree about getting a Christmas gift for L.N.B., but never followed up to find out whether she had actually received a gift. He also testified that he had contacted the Department of Social Services about L.N.B. and did not know she was in foster care. In prison, he earns $7.00 per week, which he spends on personal items; in the past, he has bought cards and stamps to send to his daughter.
    First, respondent argues that the court erred in finding that he “earns approximately $7.00 per week but spends all the money on personal items for himself and has not written or sent any gift to the child for at least six months prior to the filing of this action,” and that “at the time that the respondent recently wrote to the mother of the child, he did not even ask about the child,”because these findings are not supported by clear, cogent and convincing evidence. We disagree.
    Termination of parental rights involves two steps. N.C. Gen. Stat. § 7B-1109 (2001); N.C. Gen. Stat. § 7B-1110 (2001). The petitioner must first prove by clear, cogent, and convincing evidence, any one of the grounds specified by statute to terminate parental rights. In re Shepard DOB: 9-19-87, __ N.C. App. __, 591 S.E.2d 1, 5 (2004); N.C. Gen. Stat. § 7B-1111(b). After petitioner has established any one of the statutory grounds listed in N.C. Gen. Stat. § 7B-1111, the court moves to the second stage and considers whether it is in the best interests of the child to terminate the parental rights. Id.; see also N.C. Gen. Stat. § 7B-1110(a). “However, so long as the court applies the different evidentiary standards at each of the two stages, there is no requirement that the stages be conducted at two separate hearings.” Id. at ___, 591 S.E.2d at 6. The standard of review in an appeal of the termination of parental rights cases is 1) whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law, and 2) whether the trial court abused its discretion in finding termination to be in the best interests of the child. Id. Clear, cogent and convincing evidence is an “intermediate standard . . . greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubtrequired in criminal cases.” In re Montgomery, 311 N.C. 101, 109- 110, 316 S.E.2d 246, 252 (1984).
    Respondent testified that he earned $7.00 per week at the Wayne Correctional Institute and that he spent that money on personal items and cosmetics for himself. When asked whether he had ever bought cards or stamps to send to L.N.B., he responded “I have done it.” He offered no evidence, however, that he had spent any money on L.N.B. in the previous six months. Respondent mentioned that he contacted the Angel Tree program, but that occurred prior to Christmas of 2000, well before the critical six- month period.
    In addition, respondent could not recall when he might have sent any cards to L.N.B., and Allen testified that L.N.B.'s grandmother had never mentioned receiving any cards for L.N.B. from respondent. Respondent also claimed he could not recall whether he had inquired about L.N.B. in a letter to her mother written only two months before the termination hearing. Thus, the court's finding is supported by clear, cogent, and convincing evidence presented at the hearing.
    Next, respondent argues that the court erred in finding that he had abandoned L.N.B. and in concluding that grounds existed to terminate his parental rights. We disagree.
    One of the grounds for terminating parental rights is that a parent “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). We first note that “arespondent's incarceration, standing alone, neither precludes nor requires finding the respondent willfully left a child in foster care.” In re Harris, 87 N.C. App. 179, 184, 360 S.E.2d 485, 488 (1987). However, a failure to contact one's child or to inquire about her welfare through the Department of Social Services while incarcerated has been deemed sufficient grounds to demonstrate abandonment. Id. This Court has frequently addressed facts similar to those here:
    In Harris, although we noted that a respondent's incarceration, standing alone, neither precludes nor requires a finding of willfulness, we held one attempted contact during the relevant statutory period compelled a finding of willful abandonment, despite respondent's incarceration during the relevant time period under consideration. We also conclude that one ineffectual attempt at contact during the relevant six month period in this case would not preclude otherwise clear willful abandonment, despite the fact of respondent's incarceration during that time.

In re McLemore, 139 N.C. App. 426, 431, 533 S.E.2d 508, 511 (2000) (emphasis added) (internal citations omitted).
    Here, respondent provided no evidence that he had contacted his daughter during the relevant statutory period and admitted that he never contacted the Department of Social Services about her welfare. The only evidence respondent was able to provide about his contact with L.N.B. was that he had at some point in the past sent her cards and that prior to the relevant statutory period he made an ineffectual attempt to have a Christmas gift sent to her. The evidence clearly, cogently and convincingly supports the court's findings, which in turn support the conclusion thatrespondent had willfully abandoned L.N.B., providing a statutory ground for termination of his parental rights.
    Respondent next argues that the court erred and abused its discretion in concluding that the termination of respondent's parental rights was in L.N.B.'s best interests. For the reasons discussed below, we disagree.
    Having found that at least one of the statutory grounds for terminating parental rights under N.C. Gen. Stat. § 7B-1111 exists, the court considers whether it is in the best interests of the child to terminate the parental rights. In re Nesbitt, 147 N.C. App. 349,352, 555 S.E.2d 659, 662 (2001).
    The trial court does not automatically terminate parental rights in every case that presents statutory grounds to do so. The trial court has discretion, if it finds that at least one of the statutory grounds exists, to terminate parental rights upon a finding that it would be in the child's best interests. The trial court's decision to terminate parental rights is reviewed on an abuse of discretion standard.

Id. (internal citations omitted).
    A trial court may decline to terminate parental rights only where “there is reasonable hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child.” In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001).
    One of the underlying principles guiding the trial court in the dispositional stage is the recognition of the necessity for any child to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all children from the unnecessary severance of a relationship with biological parents or legal guardians.Id. at 612, 543 S.E.2d at 910. “In all cases where the interests of the child and those of the child's parents or guardians are in conflict, however, action which is in the best interests of the child should be taken.” Id.
    In his brief, respondent contends that termination and adoption are not necessary to protect L.N.B. or serve her best interests. L.N.B. is currently living with her maternal grandmother, who is willing to adopt her. Respondent testified that he is willing to allow L.N.B. to continue living with her maternal grandmother while he completes his prison term, but that termination is unnecessary here. However, testimony revealed that respondent had been incarcerated since L.N.B. was sixteen days old and will remain incarcerated until 2007, when she will be nine years old. Under these circumstances, we see no abuse of the court's discretion in deciding that termination of respondent's parental rights is in L.N.B.'s best interests.
    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).

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