IN THE MATTER OF:
L. N. B., Wayne County
A Minor Child. No. 02 J 51
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.
Affirmed.
Judges MCGEE and CALABRIA concur.
Report per Rule 30(e).
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