Appeal by respondent from order entered 9 January 2003 by
Judge Ann Marie Calabria in Wake County District Court. Heard in
the Court of Appeals 24 May 2004.
No brief for petitioner-appellee.
Patricia K. Gibbons for guardian ad litem-appellee.
WOODRUFF, REECE & FORTNER, by Michael J. Reece, for
respondent-appellant.
TIMMONS-GOODSON, Judge.
Respondent appeals the trial court order terminating her
parental rights to her minor daughter, Cathy.
(See footnote 1)
For the reasons
discussed herein, we affirm the trial court order.
The facts and procedural history pertinent to the instant
appeal are as follows: On 16 May 2002, petitioner, Cathy's
biological father, filed a petition (“the petition”) to terminate
respondent's parental rights. The petition contained the following
allegations:
5. The Respondent has willfully abandoned and
neglected [Cathy] under the meaning of North
Carolina General Statute § 7B-111[1](7) by
willfully refusing and neglecting to performthe natural and legal obligations of parental
care and support and by willfully refusing to
provide contact, love, affection, support and
maintenance to [Cathy] since December 16, 1999
as follows:
a. Respondent has made no effort to
have physical contact with [Cathy]
by way of visitation and has not
requested visitation since December
20, 1999;
b. Respondent has not sent any
correspondence, including birthday
cards, letters, notes, etc., and has
not sent [Cathy] any birthday,
Christmas or any other gifts since
[Cathy] has been in the custody of
the Petitioner;
c. The Respondent has made four (4)
telephone calls to [Cathy] within
the first year that [Cathy] resided
with Petitioner and has had no
further telephone contact with
[Cathy] since August of 2000;
d. The Respondent has not provided
any love, affection, parental
support, care or concern for [Cathy]
since on or before December 20,
1999;
e. The Respondent has failed to
contribute to the financial support
of [Cathy]. She has never paid any
money directly or indirectly for
[Cathy's] needs since December 20,
1999, when [Cathy] came to live with
the Petitioner.
f. The Respondent has continuously
failed to keep the Petitioner and/or
[Cathy] apprised of an address or
telephone number where she could be
contacted for [the] past two years.
On 15 August 2002 and 23 October 2002, the trial court heard
evidence regarding the petition from petitioner, respondent, and
the guardian ad litem. In an order filed 9 January 2003, the trialcourt concluded that respondent had willfully abandoned Cathy, that
grounds existed for termination of respondent's parental rights,
and that it was in Cathy's best interests to terminate respondent's
parental rights. It is from this order that respondent appeals.
We note initially that respondent's brief contains arguments
supporting only three of her original four assignments of error.
Pursuant to North Carolina Rule of Appellate Procedure 28(b)(6)
(2004), the one omitted assignment of error is deemed abandoned.
Therefore, we limit our present review to those assignments of
error properly preserved by respondent for appeal.
The issues on appeal are whether the trial court erred by (I)
concluding that grounds existed to terminate respondent's parental
rights; (II) concluding that it was in Cathy's best interests to
terminate respondent's parental rights; and (III) failing to reduce
to writing within thirty days its order terminating respondent's
parental rights.
Respondent first assigns error to the trial court's conclusion
that grounds existed to terminate her parental rights. Respondent
argues that the trial court erred in finding that she had abandoned
Cathy and that the trial court's conclusion was not supported by
its findings of fact. We disagree.
“A termination of parental rights proceeding is a two-stage
process.”
In re Howell, ___ N.C. App. ___, ___, 589 S.E.2d 157,
160 (2003). The trial court first examines the evidence and
determines whether sufficient grounds exist under N.C. Gen. Stat.§ 7B-1111 to warrant termination of parental rights.
Id. The
trial court's findings must be supported by clear, cogent, and
convincing evidence.
Id. at ___, 589 S.E.2d at 160-61. If the
trial court determines that any one of the grounds for termination
listed in § 7B-1111 exists, the trial court may then terminate
parental rights consistent with the best interests of the child.
Id. at ___, 589 S.E.2d at 161. The trial court's decision to
terminate parental rights is discretionary, and “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 Yocum, 158 N.C. App. 198, 203, 580
S.E.2d 399, 403 (quoting
In re Allred, 122 N.C. App. 561, 565, 471
S.E.2d 84, 86 (1996)),
aff'd per curium, 357 N.C. 568, ___ S.E.2d
___ (2003).
N.C. Gen. Stat. § 7B-1111(a)(7) (2003) allows a trial court to
terminate a respondent's parental rights upon finding “[t]he parent
has willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition or
motion[.]” When a petition to terminate a respondent's parental
rights is filed pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), the
trial court evaluates the respondent's behavior in the six months
before the filing of the petition.
In re Young, 346 N.C. 244, 251,
485 S.E.2d 612, 617 (1997). In the instant case, the petition was
filed 16 May 2002, making respondent's actions between 16 November
2001 and 16 May 2002 dispositive of the issue of abandonment.
“Abandonment” has been defined as the “'wilful neglect andrefusal to perform the natural and legal obligations of parental
care and support.'”
In re Humphrey, 156 N.C. App. 533, 540, 577
S.E.2d 421, 427 (2003) (quoting
Pratt v. Bishop, 257 N.C. 486, 501,
126 S.E.2d 597, 608 (1962)). The term “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). Likewise, the term “wilful” implies “more than an
intention to do a thing; there must also be purpose and
deliberation.”
Id. Thus, where “
a parent withholds [her]
presence, [her] love, [her] 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.”
Pratt, 257 N.C. at 501, 126 S.E.2d at 608. The finding of
whether a parent has willfully abandoned a child is a question of
fact to be determined from the evidence.
Searle, 82 N.C. App. at
275, 346 S.E.2d at 514.
In the instant case, the trial court made the following
pertinent findings of fact:
7. At no time did the Respondent request
visitation through the court. Petitioner's
evidence tended to show on two occasions after
December 20, 1999, the Respondent did arrange
visitation with [petitioner and his wife] and
failed to follow through on both occasions.
The Respondent testified that Petitioner never
arranged visitation for her.
8. The Respondent did not send any
correspondence to the minor child after
December 20, 1999 except for a photograph with
an enclosed necklace which was sent through
counsel after the Petition was filed but priorto the hearing on this matter.
9. Although Respondent testified that she
sent gifts to the minor child, the Petitioner,
his wife, and other witnesses have testified
that no such gifts were received prior to the
filing of this action. Likewise, the
Respondent testified that she attempted to
call the minor child over 100 times, but
Petitioner, Petitioner's Wife and other
witnesses present in the home have disputed
this testimony, testifying that Respondent
made only 4 calls to the minor child after the
Petitioner took the minor child into his home.
A telephone record presented into evidence by
the Respondent included only those calls made
after the adjudicatory hearing.
10. The Respondent has failed to contribute
to the financial support of the minor child,
never having paid any money directly or
indirectly for the minor child's needs since
December 20, 1999 when the minor child came to
live with the Petitioner and his wife.
Based upon the findings of fact detailed above, the trial court
concluded that respondent abandoned the child, and that grounds for
termination of respondent's parental rights existed.
Respondent argues that the trial court's findings of fact,
specifically findings number seven and nine, “simply recite the
testimony of the parties rather than determine which is more
credible and thus cannot be used to support a conclusion of law
that grounds for termination exist.” It is well-established that
in a non-jury trial, the trial judge must “consider and weigh all
of the competent evidence, and [] determine the credibility of the
witnesses and the weight to be given their testimony.”
In re
Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). In
Gleisner, this Court remanded the trial court's decision to
terminate the respondent's parental rights after concluding thatthe trial court's findings were “simply a recitation of the
evidence presented at trial, rather than ultimate findings of
fact.”
Id. Recognizing it is the trial court's responsibility to
determine “what pertinent facts are actually established by the
evidence” and noting that we were unable to conduct a proper review
of the trial court's decision, we remanded the case to the trial
court with instructions to make ultimate findings of fact based
upon the evidence.
Id. at 480, 539 S.E.2d at 366. This decision
was consistent with N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2003),
which requires:
In all actions tried upon the facts without a
jury or with an advisory jury, the court shall
find the facts specially and state separately
its conclusions of law thereon and direct the
entry of the appropriate judgment.
In the instant case, after reviewing the testimony at the
termination hearings and the entire record, including the trial
court's order, we conclude that while some of the trial court's
findings of fact do little more than relate the contentions of each
side, as a whole they are clearer than those of
Gleisner. The
findings are not so “vague” and “inaccurate” that they impede our
ability to determine whether the trial court's conclusion was
supported by competent evidence.
Gleisner, 141 N.C. App. at 481,
539 S.E.2d 366. Furthermore, without considering the recitations
of evidence in findings of fact numbers seven and nine, we conclude
the other findings of fact in the instant case are sufficient to
support the trial court's conclusion that respondent abandoned her
child. In
Humphrey, this Court upheld the trial court's conclusion
that the respondent had abandoned her child where the respondent
“failed to make any effort towards contacting or supporting the
child through visitation, correspondence, or [financial] support.”
156 N.C. App. at 541, 577 S.E.2d at 427. In the instant case, as
detailed above, the trial court found that respondent did not send
any correspondence to Cathy for the sixteen months prior to the
filing of the petition. This finding was supported by the
testimony of petitioner and petitioner's wife, both of whom stated
that Cathy had received no correspondence from respondent since
December 1999. While the trial court noted in its finding that
respondent sent Cathy a necklace enclosed with a photograph, those
gifts were received after the petition to terminate parental rights
had been filed. The trial court also found that respondent failed
to contribute any financial support for Cathy, having never paid
any money directly or indirectly for Cathy's needs in the sixteen
months prior to the filing of the petition. Testimony from both
petitioner and petitioner's wife supported this finding as well.
“It is well-established that 'clear and convincing' and
'clear, cogent, and convincing' describe the same evidentiary
standard.”
In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246,
252 (1984). “This intermediate standard is 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 doubt required in criminal cases.”
Id. at 109-10, 316
S.E.2d at 252. We hold that the trial court's conclusion ofabandonment in the instant case is supported by the requisite
standard of evidence. Having concluded that respondent had
abandoned Cathy, we also conclude the trial court did not err in
concluding that sufficient grounds for termination of respondent's
parental rights existed.
See N.C. Gen. Stat. § 7B-1111(a) (2003).
Therefore, respondent's first assignment of error is overruled.
Respondent next assigns error to the trial court's conclusion
that termination of respondent's parental rights was in Cathy's
best interests. Respondent argues that petitioner's evidence
failed to establish a compelling reason to terminate respondent's
parental rights. We disagree.
“Once the court has determined that grounds for terminating
parental rights are present, the court then 'moves to the
disposition stage to determine whether it is in the best interests
of the child to terminate the parental rights.'”
In re Leftwich,
135 N.C. App. 67, 71, 518 S.E.2d 799, 802 (1999) (quoting
In re
Young, 346 N.C. 244, 247, 485 S.E.2d 612, 615 (1997)). The
decision of the trial court at the disposition stage is
discretionary.
Montgomery, 311 N.C. at 110, 316 S.E.2d at 252.
“In determining the best interests of the child, the trial court
should consider the parents' right to maintain their family unit,
but if the interest of the parent conflicts with the welfare of the
child, the latter should prevail.”
In re Parker, 90 N.C. App. 423,
431, 368 S.E.2d 879, 884 (1988). Thus, the child's best interests
are paramount, not the rights of the parent.
In re Smith, 56 N.C.
App. 142, 150, 287 S.E.2d 440, 445,
cert. denied, 306 N.C. 385, 294S.E.2d 212 (1982).
In the instant case, evidence produced at the disposition
hearing established that Cathy had lived in six different locations
in two different states while under respondent's care, including a
homeless shelter for approximately six months. While living with
respondent, Cathy was forced to repeat the third grade as a result
of her lack of attendance, and she failed to participate in
important end-of-school testing. Evidence presented at the hearing
also established that while living with petitioner, Cathy excelled
academically and won various achievement and leadership awards at
school. Various witnesses testified to Cathy's growth as an
individual while living with petitioner and his wife, and adoption
papers signed by petitioner's wife and consented to by Cathy were
submitted to the trial court. Considering this evidence in its
totality, we conclude the trial court did not abuse its discretion
in terminating respondent's parental rights. Therefore,
respondent's second assignment of error is overruled.
Respondent next assigns error to the trial court's failure to
reduce its order terminating respondent's parental rights to
writing within thirty days. Respondent argues that because the
order was not filed within thirty days of the trial court's
decision, the order is “null and void.” We disagree.
N.C. Gen. Stat. § 7B-1110(a) (2003) states that “[a]ny order
[terminating parental rights] shall be reduced to writing, signed,
and entered no later than 30 days following the completion of the
termination of parental rights hearing.” We note that in theinstant case, the disposition hearing was completed on 23 October
2002 and the order was not filed until 9 January 2003. Thus, the
order terminating respondent's parental rights was entered outside
of the thirty-day mandate of the statute. However, we are
unconvinced this error prejudiced respondent. Furthermore,
invalidating the trial court's order for the reason proposed by
petitioner would seemingly frustrate the purpose of the Juvenile
Code by protecting a parent deemed unfit by the Code rather than a
child subject to proceedings under the Code.
See In re E.N.S., ___
N.C. App. ___, ___, 595 S.E.2d 167, ___ (2004) (“[T]he General
Assembly's intent was to provide parties with a speedy resolution
of cases where juvenile custody is at issue. . . . [H]olding that
the adjudication and disposition orders should be reversed simply
because they were untimely filed would only aid in further delaying
a determination regarding . . . custody because juvenile petitions
would have to be re-filed and new hearings conducted.”).
Therefore, respondent's final assignment of error is overruled.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
Footnote: 1