An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-923

NORTH CAROLINA COURT OF APPEALS

Filed: 15 June 2004

IN THE MATTER OF             Wake County            
C.A.C.                        No. 02 J 354

    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
    For the purposes of this opinion, we will refer to the child by the pseudonym “Cathy.”

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