An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-441


Filed: 15 June 2004

                        Cleveland County                             
M.L.                            No. 02 J 022

    Appeal by respondents from order entered 1 October 2002 by Judge Charles A. Horn in Cleveland County District Court. Heard in the Court of Appeals 29 March 2004.

    A. Susan Biggers for respondent-appellant father.

    Brenda S. McLain for respondent-appellant mother.

    No brief filed for petitioner-appellee.

    THORNBURG, Judge.

    Respondents, pursuant to N.C. R. App. P. 28(f), joined in a single brief on this appeal, though they did not formally join on appeal. However, for expediency and because the appeals involve common questions of law, we consolidate these appeals, see N.C.R. App. P. 40 (Court on its own initiative may consolidate cases which involve common questions of law), and dispose of the appeals in one opinion.
    Respondents, Michael and Janice, are the parents of the minor child, M.L. M.L. was born on 22 December 1993. M.L. is a special needs child as she is non-ambulatory with a seizure disorder, has cerebral palsy and is severely mentally retarded. M.L. has nomeans of communicating with others and shows very few signs that she is able to bond with others.
    At the time that the Cleveland County Department of Social Services (“DSS”) became involved with M.L., Michael had full custody of the child. M.L. had previously been removed from her parents' custody due to an incident of sexual abuse by Michael's former roommate. After working with the Durham County Department of Social Services, Michael was awarded full custody of M.L. and Janice was allowed supervised visits.
    In June of 1999, Michael took M.L. to Cleveland County to visit with Janice in her home for a weekend. During the visit, M.L. was taken to the emergency room where it was discovered that she had a rash consistent with a sexually transmitted disease. The rash was an irritation of the disease that she had contracted as a result of the prior sexual abuse. M.L. was taken into the custody of DSS and at a hearing conducted on 1 October 1999 Janice stipulated to a finding of neglect based upon an environment injurious to the welfare of the child.
    The disposition order entered on 10 December 1999, the first to address both Michael and Janice, ordered each to have a psychological evaluation and to be able to verbalize and understand M.L.'s special needs and handicaps. Janice was also ordered to complete parenting classes and a vocational rehabilitation program. Janice had completed all of these recommendations by April 2001. During this time Michael was under the impression that DSS was working to reunite M.L. with Janice and did not actively seek toregain custody. However, Michael began to pay monthly child support in March of 2000. Michael also began visiting M.L. about every six to eight weeks at her school, starting in January of 2001.
    In July of 2001, Janice moved to Florida to be closer to her family. Michael also moved to Florida in the summer of 2001 to live with his family. The petition to terminate the respondents' parental rights was filed on 5 February 2002. The respondents' parental rights were terminated in an order entered on 11 September 2002. Respondents appeal.
    The issue presented on appeal is whether there was clear, cogent and convincing evidence to support the findings and conclusion that respondents had willfully abandoned M.L.
    A proceeding for 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 (2003); 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 adjudication 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 forth in section 7B-1111. N.C. Gen. Stat. § 7B-1109(e) and (f) (2003); 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 theproof beyond a reasonable doubt requirement. See Montgomery 311 N.C. at 109-10, 316 S.E.2d at 252. 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) (citing In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133 (1982)).
    In the order terminating the respondents' parental rights, the trial court concluded that sufficient grounds existed to terminate their rights without specifying which of the grounds listed in N.C. Gen. Stat. § 7B-1111 existed. However, the court concluded as a matter of law, which it erroneously labeled as a finding of fact, that the respondents willfully abandoned the minor child for at least six months prior to the filing of the petition to terminate. “[C]onclusions of law denominated as findings of fact are fully reviewable.” Hart v. Hart, 74 N.C. App. 1, 9, 327 S.E.2d 631, 637 (1985) (citing Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980)).
    “[A]bandonment imports any wilful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child . . . .” In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982). In this context, “[t]he word 'willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation.” In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) (citing In re Clark v. Jones, 67 N.C.App. 516, 313 S.E.2d 284, disc. review denied, 311 N.C. 756, 321 S.E.2d 128 (1984)).
    We hold that the trial court erred in concluding that the respondent-father “willfully abandoned” M.L. during the relevant time period, from 5 August 2001 to 5 February 2002. In support of its conclusion, the trial court found that Michael left M.L. with Janice in violation of the Durham County court order and had done nothing to correct or mitigate that fact, that he moved to California and then to Florida, that he visited M.L. every six to eight weeks since January 2001 and that, while he was making monthly child support payments, he was over $3700.00 behind in support.
    We note that M.L.'s visit with Janice occurred in June of 1999, outside the relevant six-month period and thus cannot support the conclusion of willful abandonment. In regards to Michael's child support payments, the law in this state is such that “a mere failure of the parent of a minor child in the custody of a third person to contribute to its support does not in and of itself constitute abandonment. Explanations could be made which would be inconsistent with a wilful intent to abandon.” Bost v. Van Nortwick, 117 N.C. App. 1, 18, 449 S.E.2d 911, 921 (1994) (quoting Pratt v. Bishop, 257 N.C. 486, 501-02, 126 S.E.2d 597, 608 (1962)). The uncontested evidence showed that Michael had been paying child support each month in the amount of $110.00. The uncontested evidence also showed that Michael was working at Wendy's Old Fashioned Hamburgers for $6.10 an hour. In Bost, the court foundthat the respondent father's inability to pay child support due to his dependency on alcohol and related financial problems, plus his recent payments during the relevant time period, did not support a finding of willful abandonment. Bost, 117 N.C. App. at 18, 449 S.E.2d at 921. Similarly, given Michael's consistent record of making payments and considering his employment situation, the finding regarding his child support payments did not support a conclusion of willful abandonment.
    Additionally, while Michael moved to California and then to Florida, we cannot agree that these moves showed that he intended to abandon M.L. First, Michael's move to California falls outside the relevant six-month period. While Michael was living several hours from Cleveland County in Florida, the court also found that Michael visited M.L. every six to eight weeks, despite having to take a bus to do so. We cannot conclude that Michael's move to Florida is evidence of willful abandonment.
    We further note that there was uncontested testimony from M.L.'s teacher that Michael “does a very good job interacting with [M.L.]” and was “very realistic in knowing that she did have some special needs, but that he also seemed to be optimistic in her being able to learn things.” Michael also sent M.L. Christmas presents in December 2001. It was also uncontested that Michael called M.L.'s teacher to receive updates on M.L. While there was evidence that Michael was not very involved in M.L.'s life during much of the period that she has been in DSS's custody, we cannot conclude that there was clear, cogent and convincing evidence thatwould support a conclusion of willful abandonment during the relevant time period.
    We recognize that the determination of willful abandonment is a fact-specific inquiry and as such we specifically limit our holding to the facts of the case before us. Because we conclude that there were not adequate findings to support a conclusion that Michael willfully abandoned M.L., the trial court did not have the authority to terminate Michael's parental rights. Given our conclusion on this assignment of error, we do not address Michael's further assignments of error.
    However, we do find that there was clear, cogent and convincing evidence to support the termination of the respondent- mother's parental rights on the grounds of willful abandonment. The trial court found that Janice was not present at the hearing, was under a court order to visit M.L. daily at her school, only visited twice between April 25, 2001 and July 2001, had only visited twice since July 2001, that she moved to Florida and that she had paid no child support since August of 2000. There was clear, cogent and convincing evidence, in the form of testimony of DSS employees and M.L.'s teacher, in the record to support all of these findings. Additionally, there was uncontested evidence that Janice was not in frequent contact with M.L.'s school or DSS concerning M.L. Nor was there any evidence presented as to whether Janice sent M.L. any gifts during the relevant time period. Thus, we conclude that the trial court did not err in concluding thatJanice had willfully abandoned M.L. during the relevant time period. This assignment of error fails.
    Janice also argues that the trial court abused its discretion by entering an order for the termination of her parental rights. Janice essentially argues that she complied with all of the requirements from the December 1999 dispositional order, in that she completed the psychological examination and all of the parenting classes and kept DSS informed of her whereabouts, and thus that her parental rights should not have been terminated.
    “The 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, disc. review denied, 354 N.C. 218, 554 S.E.2d 341 (2001). We conclude that it was within the trial court's discretion to conclude that M.L.'s best interests would be served by terminating Janice's rights over her and allowing a more stable environment to be found for a child with such demanding special needs. Respondent-mother's assignment of error fails.
    Affirmed in part, reversed in part.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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