In the Matter of: Hardwick, 162 NC App 360 (03-279) 01/20/2004

Appeal by respondent from judgment entered 22 May 2002 by Judge Marvin Pope in Buncombe County District Court. Heard in the Court of Appeals 29 October 2003.

    John C. Adams, for petitioner-appellee Buncombe County Department of Social Services.

    Michael N. Tousey and Judy Rudolph, for petitioner-appellee Guardian ad Litem Donna Elliott.

    Elizabeth A. Hansen, for respondent-appellant Michael Hardwick.

    LEVINSON, Judge.

    Respondent (Michael Hardwick) appeals an order terminating his parental rights in his daughter Christina Hardwick (Christina). We affirm.
    The record establishes the following: Christina was born to Annis Marie Hardwick (Marie) and respondent on 16 November 1992. Respondent and Marie were married when Christina was born, but separated in 1995, when Christina was three years old. From 1995 until 1998 respondent visited with Christina on alternate weekends. In 1998, Marie was living with Maggie Merrill, whose own parental rights were terminated “due to life-threatening physical and sexual abuse” of her son. Although the Buncombe County Department ofSocial Services (DSS) directed Marie to ensure that her children had no contact with Ms. Merrill, Marie continued her relationship with Merrill. Because of Christina's ongoing contact with Merrill, DSS filed a petition on 11 December 1998 alleging that she was abused and neglected; Christina was placed in non-secure DSS custody. Following a hearing on 7 April 1999, the trial court adjudicated Christina abused and neglected. Respondent's attorney was present at this hearing, but respondent did not attend. The trial court ordered Christina's custody to remain with DSS, and ordered respondent to provide child support and to appear before the court for determination of his fitness to have visitation with Christina.
    Respondent was present at a permanency planning and review hearing in June, 1999, at which the court allowed respondent weekly supervised visitation with Christina. In November, 1999, respondent was ordered to obtain a substance abuse assessment. At a permanency planning and review hearing conducted in December, 1999, the trial court found that respondent had neither provided child support for Christina, nor obtained the substance abuse assessment. The trial court ordered respondent to comply with the court's previous orders, and directed that “prior to the next review hearing, the [DSS] treatment team shall make a decision concerning changing the plan in this case from reunification.” On 29 March 2000 the trial court entered an order finding that respondent still had not provided any child support for Christina or completed a substance abuse assessment. The court also foundthat it would be in Christina's best interests for her to obtain “psychological, medication, and learning disability evaluations” and to be placed in a therapeutic foster home. The court released DSS from further efforts towards reunification, and ordered that respondent comply with the court's prior orders, and that DSS provide Christina with the recommended evaluations and placement.
    About a year later, on 2 March 2001, the trial court entered an order finding that respondent had not visited with Christina since May, 2000, and had neither paid child support nor obtained a substance abuse assessment. The court ordered the plan for Christina changed to adoption, and ordered that any further visits between respondent and Christina “shall be in the discretion of the child's therapist[.]”
    On 10 May 2001, DSS filed a petition seeking to terminate respondent's parental rights in Christina. The petition alleged that respondent had (1) willfully left Christina in foster care for over 12 months without showing reasonable progress towards correcting the conditions that led to her placement, and (2) willfully abandoned Christina for more than six months prior to the filing of the petition. The hearing was initially scheduled for October, 2001; however, because respondent was in prison at that time, it was continued until spring, 2002.
    At the hearing, DSS social worker Lisa Cook testified that she had been assigned to Christina's case when the child was first placed in DSS custody. During the three years Christina spent in foster care, respondent made only one child support payment, inJune, 2001 (after the petition for termination of parental rights was filed), and had sent DSS no other child support payments, and no gifts, clothing, or other items for Christina. About six weeks after the permanency plan for Christina was changed to adoption, respondent completed a substance abuse assessment. However, his last visit with Christina was 8 May 2000. Several supervised visits were scheduled after that date; respondent failed to show up for these visits, and DSS had no further contact with respondent after 8 May 2000.
    Cook also testified concerning Christina's special needs. In July, 2000, Christina was placed in a therapeutic foster home. At that time she suffered from “educational delays,” was observed to engage in sexual “acting out,” and appeared to have difficulty with auditory processing. Additional testimony on Christina's needs was provided by her therapist, Barbara Hebert, who testified that Christina suffered from “generalized anxiety disorder,” attention deficit hyperactivity disorder, and enuresis. Sarah Hickey, Christina's therapeutic foster mother, testified that when Christina was first placed in her home she was “basically illiterate” and engaged in chronic crying, temper tantrums, lying, and misbehavior at school. However, Sarah and her husband made “great strides” with Christina using behavior modification techniques and extra tutoring, and were able to teach her new “coping strategies.”
    Respondent testified that during a supervised visit with Christina in May, 2000, a DSS social worker told him his visitationwas being suspended, and that in response he “threw his hands up” and “quit doing everything” as regards his parental obligations towards Christina. Respondent also testified that after May, 2000, he was “on the run” trying to avoid arrest for probation violations. He acknowledged that after 8 May 2000 he never asked to visit with Christina, never called DSS, never tried to call Christina on the phone, and did not stay in touch with his attorney. Respondent's explanation was that he “had just had enough” and “ran from the law because they made me stop seeing Christina.” He also conceded that he had not paid any child support since June, 2001, and had not obtained suitable housing for Christina in the eight months between his release from prison and the hearing.
    Following presentation of evidence, the trial court made findings of fact including, in pertinent part, the following:
        19. . . . The Court will find as facts by clear, cogent and convincing evidence as follows: 20. . . . That [Christina] has been in the continuous custody of the Buncombe County [DSS] for in excess of 3 years. . . . . 25. That Respondent Father was not present at the adjudication hearing on April 7, 1999. He . . . did obtain a court ordered substance abuse assessment on or about May 2, 2000 . . . [and] until May 8, 2000, the Respondent Father demonstrated some compliance with court orders. 26. . . . [Respondent] ha[s] not visited with the minor child since May of 2000. . . . He has paid no child support except purge payments, which he paid in June of 2001. 27. The Respondent Father was incarcerated from June 7, 2001 until January 27, 2002. . . . . 30. That Barbara Hebert, child and familytherapist . . . diagnosed Christina with generalized anxiety disorder, oppositional defiant/attachment disorder, ADHD and Enuresis. . . . [Christina] never really mentioned the Respondent Father at all in her therapy sessions. . . . Hebert testified that in her opinion it is clearly in the best interest of the minor child to be freed for adoption by her current foster placement[.] . . . . 34. That Respondent Father testified [that he] . . . separated from Respondent Mother sometime in 1995. . . . Respondent Father's visits with Christina stopped either in March of 2000 or May of 2000. He says that . . . he wanted visits with Christina at that time, but he gave up, threw his hands up, and quit doing anything. . . . He admits that he was on the run to avoid arrest from May of 2000 to June 7, 2001 when in fact he was incarcerated. . . . He admits that the only child support he paid was the June of 2001 purge payments. . . . He says he bears no responsibility for Christina being in foster care for over 3 years. . . . He admits that he made no attempts to contact Christina by phone or mail. He admits never calling the Buncombe County [DSS] or his lawyer to inquire about the minor child . . . [and] made no attempts to contact [DSS] while he was on the run or while he was in jail, a period of almost 2 years[.] . . . He admits that no attempts were made by him to reunify with his daughter from May of 2000 to the date of this hearing.

Based on these and other findings of fact, the trial court concluded that respondent had (1) neglected Christina “pursuant to N.C.G.S. § 7B-1111(1)” by failing to provide “proper care, supervision, or discipline”; (2) willfully left Christina in foster care for more than twelve months without making reasonable progress to correct the conditions that led to her placement in foster care, as set out in N.C.G.S. § 7B-1111(2), and; (3) willfully abandoned Christina “pursuant to N.C.G.S. § 7B-1111(7)” for at least six consecutive months immediately preceding the filing of thepetition. The court further concluded that it was “in the best interest of the minor child” that respondent's parental rights be terminated. Accordingly, the trial court entered an order for termination of parental rights on 22 May 2002. From this order respondent appeals.

    Respondent appeals from an order for termination of parental rights. A two-part proceeding is required before the court may issue an order for termination of parental rights: an adjudicatory stage, governed by N.C.G.S. § 7B-1109 (2003), and a dispositional stage, governed by N.C.G.S. § 7B-1110 (2003). In re Howell, __ N.C. App. __, __ S.E.2d __, N.C. LEXIS 2262 (2003). The adjudication stage requires petitioner to show “the existence . . . of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent.” N.C.G.S. § 7B-1109(e) (2003). The burden of proof is on the petitioner, and “all findings of fact shall be based on clear, cogent, and convincing evidence.” N.C.G.S. § 7B-1109(f) (2003). “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.” In re Yocum, __ N.C. App. __, __, 580 S.E.2d 399, 403 (citing In re Montgomery, 311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984)), aff'd, __ N.C. __, __ S.E.2d __, 2003 N.C. LEXIS 1262 (2003).
    “If the petitioner meets its burden of proving that there are grounds to terminate parental rights,         the trial court then willconsider whether termination is in the best interests of the child. . . . [T]he 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.” In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174 (2001) (citation omitted).
    On appeal, “the appellate 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) (citation omitted). This is so “even though there may be evidence to the contrary.” In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).

    Respondent argues first that the trial court erred by finding grounds for termination of parental rights. We disagree.
    The trial court may terminate a respondent's parental rights upon a finding that he or she “has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]” N.C.G.S. § 7B-1111(a)(7) (2003). Under G.S. § 7B-1111(a)(7), the trial court must evaluate a respondent's behavior in the six months before the petition for termination of parental rights was filed. See In re Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (“since the petition for terminating respondent's parental rights was filed on 6 May 1994, respondent's behavior between 6 November 1993 and 6 May 1994 isdeterminative”). In the instant case the petition was filed 10 May 2001, making respondent's actions between 10 November 2000 and 10 May 2001 dispositive.
    “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). “Abandonment has been defined as 'wilful neglect and refusal to perform the natural and legal obligations of parental care and support. . . . [I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.'” In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (upholding trial court's finding of abandonment where respondent “had limited interaction with the child . . . visit[ed] with him less than once a year . . . [and] failed to financially contribute to the support of the child”) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)).
    This Court generally has held that the existence of practical barriers to a respondent's involvement with his child will not excuse the respondent's failure to do what he could under the circumstances. The respondent in In re Bradshaw, __ N.C. App. __, __, 587 S.E.2d 83, 86 (2003), was incarcerated in prison during the six months before the petition was filed. This Court held that this fact, standing alone, was insufficient to excuse therespondent's failure to make any effort to offer emotional or financial support for his child, noting that:
        Apart from [his incarceration], which was beyond respondent's control, the undisputed findings of the trial court clearly show that respondent neither provided support for the minor child nor sought any personal contact with or attempted to convey love and affection for the minor child.

See also In re Graham, 63 N.C. App. 146, 151, 303 S.E.2d 624, 627 (1983) (“The fact that the respondent was incarcerated . . . does not provide any justification for his all but total failure to communicate with or even inquire about his children”); In re McLemore, 139 N.C. App. 426, 429, 533 S.E.2d 508, 509-10 (2000) (“the statutory factor of willful abandonment, . . . requires the court to consider . . . financial support respondent has provided to the child, as well as the respondent's emotional contributions to the child”; thus, “respondent's alcohol abuse and incarceration, standing alone, [does not] negate a finding of willfulness under the statute”).
    In the instant case, respondent's proffered explanation is even less compelling than incarceration: he asserts only that he was told by an unnamed DSS social worker in May, 2000, that his visitation privileges had been suspended. However, even assuming, arguendo, the accuracy of respondent's testimony in this regard, respondent acknowledges that until March, 2001, there was a standing court order allowing his visitation with Christina. Moreover, respondent's own testimony establishes that he “gave up, threw his hands up and quit doing anything” after 8 May 2000; thathis only child support payment was a “purge payment” in June, 2001 after the petition was filed; and that he never attempted to contact Christina by phone or mail, never called DSS, or tried to enforce the existing order allowing visitation.
    We conclude that the trial court's conclusion that respondent abandoned Christina is amply supported by its findings of fact, discussed above. We further conclude that these findings of fact are supported by the evidence. Accordingly, we hold that the trial court did not err by concluding that respondent had abandoned Christina. “Because we have upheld the trial court's findings and conclusion regarding [abandonment], we need not address respondent's assignment of error contesting termination based on [other grounds].” In re Yocum, __ N.C. App. at __, 580 S.E.2d at 403. This assignment of error is overruled.

    The respondent argues next that the trial court abused its discretion by entering an order for termination of parental rights. Respondent essentially argues that the termination of his parental rights was not his fault or responsibility, but should be blamed on DSS. On this basis, he contends that the trial court abused its discretion by concluding that termination of parental rights would be in Christina's best interest. We disagree.
    Respondent argues that DSS was responsible for his abandonment of Christina, as “DSS terminated [his] visits, thus terminating the relationship.” Preliminarily we note that contrary evidence was offered indicating that DSS had not suspended visitation, and thatrespondent failed to attend several visits with Christina that DSS scheduled after 8 May 2000. Moreover, as discussed above, cancellation of visitation would not thereby excuse respondent's “terminating the relationship.” Thus, even if DSS had cancelled respondent's visits with Christina, this would not necessarily render the trial court's decision an abuse of discretion.
    Respondent also argues that DSS “failed to put into place services that would allow reunification.” He acknowledges DSS testimony that respondent was considered an inappropriate placement for Christina based on his unstable and inadequate housing, his criminal record, his lack of demonstrated interest in reunification with Christina, and his inability to care for her special needs. However, respondent places the responsibility for changing his situation on DSS, arguing that DSS failed to “train him to become an appropriate care provider” and offered him “no parenting classes, no individual therapy or joint therapy with the juvenile, [and] no assistance with housing or employment[.]” We note that the record contains no evidence indicating that respondent sought any of these services. Further, provision of specific services by DSS is not a prerequisite to a trial court's determination that termination of parental rights would be in a minor's best interests:
        Respondent-mother asserts that DSS was obligated to provide services to her to assist her in correcting the conditions that led to her children's removal[.]. . . [G.S. §] 7B-1111(a)(2) deleted the 'diligent efforts' requirement, indicating an intent by the legislature to eliminate the requirement that DSS provide services to a parent before atermination of parental rights can occur. Thus, we hold that a determination that DSS made diligent efforts to provide services to a parent is no longer a condition precedent to terminating parental rights.

In re Frasher, 147 N.C. App. 513, 516-17, 555 S.E.2d 379, 382 (2001).
    “Only the trial court has directly observed the evidence as it was presented and the attendant circumstances, as well as the demeanor and characteristics of the witnesses.” In re Will of Buck, 350 N.C. 621, 628, 516 S.E.2d 858, 863 (1999) Thus, “[t]he trial court's decision to terminate parental rights, if based upon a finding of one or more of the statutory grounds supported by evidence in the record, is reviewed on an abuse of discretion standard.” In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174 (2001) (citations omitted).
    We conclude that it was “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.” In re Yocum, __ N.C. App. at __, 580 S.E.2d at 404. This assignment of error is overruled.