IN THE MATTER OF: A.R.P. Dare County
No. 02-J-19
Sharp, Michael, Outten & Graham, L.L.P., by Stephen D.
Michael, for appellee Dare County Department of Social
Services.
Peter Wood for appellant Stephen Pierce.
Benita Lloyd, Guardian Ad Litem.
Katherine Pierce, pro se.
LEVINSON, Judge.
The present appeal arises from a district court order
terminating the parental rights of Katherine and Steven Pierce as
to the minor child A.R.P. Only Mr. Pierce has appealed from the
order. We affirm.
Prior to 2001, A.R.P. lived with her mother (Katherine Pierce)
from the time she was a toddler. With the exception of a brief
trip to New York in late 2000, A.R.P. and her mother lived in Dare
County, North Carolina from 1996 until January 2001. During this
time, the Dare County Department of Social Services (DSS)
investigated allegations of neglect of A.R.P. and/or other child
protective services reports in 1996, 1997, 1999, and several timesin 2000; all of these reports were substantiated. Steven Pierce,
A.R.P.'s father, has lived in New York during all of the child's
life; his contact with A.R.P. has been infrequent and of limited
duration.
In January 2001, DSS assumed non-secure custody of A.R.P., and
in February 2002, DSS filed a petition to terminate the parental
rights of Katherine and Steven Pierce. Following a hearing on the
matter, the district court entered a lengthy order which contained
the following unchallenged findings of fact:
6. The biological father of the minor child is Steven
Pierce, Jr. who is more than 18 years of age and
whose address is [in] Gloversville, New York.
. . . .
22. . . . .
R. [A.R.P.] . . . had previously been diagnosed
with Autism and Post Traumatic Stress
Disorder. She receives special educational
services to accommodate her
emotional/behavioral needs in the school
setting. [A.R.P.] needs regular therapy [and]
medication . . . . [A.R.P.] needs a stable
home environment. . . .
35. . . . .
Z. Stephen Pierce . . . has failed throughout
[the child's] life to be the father that
[A.R.P.] needs and deserves.
AA. When Mr. Pierce became aware that Audrey
needed placement he gave only lip service to
the small efforts needed of him to ensure that
she could come to stay with him. In January
of 2001, Mr. Pierce contacted the Clerk of
Court to get the Affidavit of Indigency that
would have furnished him an attorney. He held
onto the form through two hearings before
sending it in November of 2001. Mr. Pierce
was given his previous attorney Angela
Norcross' contact information in November by
Susan Davis, Assistant Clerk of Court, andagain in December of 2001 by [DSS] so that he
could talk to her and be represented in Court.
Mr. Pierce failed to call his Court appointed
lawyer. He received notice the first part of
March of 2002 that his parental rights were
going to be terminated and sat on that
information for several weeks before
responding.
BB. Mr. Pierce stayed out of touch with [DSS] for
six critical months while his child remained
in foster care. More importantly he has
failed to show that he cares for this child's
feelings. He does not call her or provide
meaningfully for her emotional needs. . . .
. . . .
EE. [In three telephone conversations with Ms.
Hadeed, a social worker with DSS], Mr. Pierce
did not ask . . . how his daughter was doing
or how to contact her. . . .
. . . .
GG. In mid-April 2001, Ms. Hadeed attempted
numerous times to reach Mr. Pierce at his
residence telephone number. The number was
repeatedly busy or there was no answer. Ms.
Hadeed sent Mr. pierce a letter on May 2, 2001
in regards to the upcoming permanency planning
hearing. Mr. Pierce did not respond to the
letter at that time. He returned it the
following October of 2001. Ms. Hadeed
continued to try to reach Mr. Pierce by
telephone.
HH. On May 31, 2001, Ms. Hadeed wrote Mr. Pierce
requesting that he call her. Ms. Hadeed tried
repeatedly to reach him by telephone and the
line was always busy or there was no answer.
Mr. Pierce had not tried to call Ms. Hadeed in
two months. Mr. Pierce did not respond to
this letter and Ms. Hadeed continued to try to
call him without success. On July 16, 2001,
Ms. Hadeed spoke [with a New York caseworker,
who informed her that Mr. Pierce had moved and
provided her with Mr. Pierce's new contact
information]. Ms. Hadeed began calling th[e]
[new] number and leaving messages for Mr.
Pierce to call. He did not call back. On
July 24, 2001, Ms. Hadeed wrote Mr. Pierceabout his daughter's move to therapeutic
foster care in New Bern. . . . [A.R.P. had
previously been at the Wright Place for
Children group home in Manteo.] The staff at
the Wright Place reported that Mr. Pierce had
called A.R.P. twice while she was staying
there in a six month time period. Mr. Pierce
had not sent her any cards or presents.
II. . . . [A.R.P.'s] father did not call her, send
her a card or anything for her [31 June 2001]
birthday. On October 9, 2001, Mr. Pierce
finally wrote the Department a letter saying
that he was not being called enough about his
daughter's progress. It was the response
letter he had been sent back in May 2001,
requesting an answer for the May Permanency
Planning Team meeting, which he had been
requested to return by May 18, 2001. Ms.
Hadeed was finally able to contact Mr. Pierce
by telephone on October 17, 2001. Mr. Pierce
indicated that he was presently out of work
due to back trouble. Ms. Hadeed inquired if
he was really interested in having [A.R.P.] at
that point, since it had been so long since
she had heard from him. Mr. Pierce was
somewhat hesitant, but did say he wanted her.
Ms. Hadeed inquired if he was really in a
position to afford another child. He again
hesitated, but said he was. Mr. Pierce said
his wife was running a machine in a factory
and he was staying home watching their four
children.
. . . .
KK. . . . Ms. Hadeed telephoned Mr. Pierce on
November 8, 2001 and advised him verbally of
the outcome of [a] hearing [he had not
attended]. . . . Mr. Pierce was referred to
the Clerk of Court to see about getting a
lawyer for the next hearing. Mr. Pierce did
not ask how his daughter was doing. On
December 11, 2001, Ms. Hadeed telephoned
Steven Pierce to discuss the status of the
case. His situation remained unchanged. Ms.
Hadeed advised him of [A.R.P.'s] status. He
now said that he was not coming to Court in
January [for a hearing]. . . . Ms. Hadeed
called Mr. Pierce on December 12, 2001 and
advised him that his attorney was AngeleaNorcross and gave him contact information for
her. Mr Pierce did not contact Ms. Norcross.
LL. Mr. Pierce did call his daughter at the group
home on December 11, 2001 and December 15,
2001, the only times he did so in the eight
months that she was there. Ms. Hadeed wrote
Mr. Pierce on December 19, 2001 and advised
him that the Permanency Planning Team had
reviewed his daughter's case, including his
home study and that of the grandmother and
recommended that [A.R.P.] be placed with the
maternal grandmother after [A.R.P.]'s
discharge from residential treatment. Mr.
Pierce did not call Audrey for Christmas or
send her anything. Mr. Pierce did not respond
to Ms. Hadeed's December 19, 2001 letter.
. . . .
NN. The Department received correspondence from
Mr. Pierce on February 9, 2001 that he wanted
to be able to contact his daughter and in
response, Ms. Hadeed telephoned Stephen Pierce
on February 12, 2001. Ms. Hadeed indicated
that she received his permanency planning
committee letter. Ms. Hadeed gave him the
telephone number of the Wright Place and
indicated that he was free to call his
daughter at any time. Ms. Hadeed indicated
that the only reason she had not given it to
Mr. Pierce before was that he had not asked
for it.
OO. According to Carolyn Williams from Edell's
Group Home ([A.R.P.]'s recent therapeutic
residential placement) [A.R.P.] was in her
facility from July 20, 2001 until March 18,
2002. She indicated that in her log book, Mr.
Pierce had called only two times while
[A.R.P.] was there . . . . Mrs. Williams
indicated that Mr. Pierce did not call at
Christmas or send a present. He did not send
her a birthday present or call her for her
birthday.
PP. Mary Bowden from the Wright Place stated that
Mr. Pierce had called only two times from
January 2001 until [A.R.P.] left the Wright
Place in July 2001. He spoke to [A.R.P.] one
time. He called another time when [A.R.P.]was out and was told when to call back, but he
did not do so.
. . . .
UU. The father had not come to Dare County to
visit his daughter prior to this hearing date
and failed to get involved with his special
needs child. The father had only called his
daughter two times and he failed to pay a
reasonable portion of the cost of her care.
The father paid a negligible amount for her
care and there was no evidence that the father
could not work. The father stayed out of
contact with the Department of Social Services
and the Department had to hunt him down to
apprize [sic] him of his daughter's status.
The father did not exhibit the needed love and
affection for his child. There was no
evidence that the father had furnished his
daughter with cards for her birthday or
otherwise at either foster care placement.
The father was unable to tell the Court
[A.R.P.]'s diagnosis, had no knowledge of her
current status and was unable to describe what
services she was receiving or what her needs
were. The father is capable of providing
support for his child and he has the ability
to perform some work. His current disposable
income is greater when he is not working than
when he is working. He could have provided
some support for his child but he chose not to
do so. He has not filed or requested to have
his [c]ourt ordered support modified at any
time.
36. This is the father's first appearance at any
[c]ourt proceeding. The father chose not to attend
any prior hearings and failed to get involved with
his minor child or be involved in the [c]ourt
proceedings to have his daughter returned to his
care. The father's prior experience with the
[c]ourts in New York shows that he knew what to do
but failed to take any action in North Carolina.
. . . .
38. Mr. Pierce stated that he wanted custody of his
child but his lack of action and involvement shows
that he does not want the responsibility that goes
with the care of a special needs child.
. . . .
40. There was no emotional testimony from the father.
The father failed to say that he loves his child
and he did not say that he wants what is best for
his child. The father did not understand his
daughter's special needs and was unable to explain
her needs. The father did not know that his
daughter had been handcuffed and taken to a
psychiatric hospital because he did not call to
talk to anyone including his child. The father
does not know what training his child has received,
and has not talked to [A.R.P.]'s counselor to see
what his child would need in order to be
successful. The Court has doubts about the
stability of the father's home.
The trial court concluded that, based on the foregoing findings of
fact, the parental rights of Steven Pierce should be terminated
because, inter alia, he had neglected the child within the meaning
of N.C.G.S. § 7B-101, and it was in the best interests of A.R.P.
that his parental rights be terminated.
Mr. Pierce now appeals, contending the trial court erred by
(1) concluding that there were grounds for termination of his
parental rights, and (2) concluding that it had jurisdiction to
enter the order and that the action was not brought to circumvent
the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA). For the reasons that follow, we are unpersuaded by these
arguments.
This Court reviews a trial court order terminating parental
rights for whether the findings of fact are supported by clear,
cogent, and convincing evidence, and whether those findings of fact
support a conclusion that parental rights should be terminated for
one of the grounds set forth in N.C.G.S. § 7B-1111(a) (2003). In
re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398(1996). Where an appellant does not assign error to the trial
court's findings of fact, they are presumed to be supported by
clear cogent and convincing evidence. In re Moore, 306 N.C. 394,
404, 293 S.E.2d 127, 133 (1982). Where a trial court concludes
that parental rights should be terminated pursuant to several of
the grounds set forth in G.S. § 7B-1111(a), the order of
termination will be affirmed if the court's conclusion with respect
to any one of the statutory grounds is supported by valid findings
of fact. In re Swisher, 74 N.C. App. 239, 240-41, 328 S.E.2d 33,
34-35 (1985).
With these principles in mind, we first address Mr. Pierce's
argument that the trial court erred in concluding that there were
grounds for termination of his parental rights. This argument is
without merit.
N.C.G.S. § 7B-1111 (2003) provides:
(a) The court may terminate the parental
rights upon a finding of one or more of
the following:
(1) The parent has . . . neglected the
juvenile. The juvenile shall be
deemed to be . . . neglected if the
court finds the juvenile to be . . .
a neglected juvenile within the
meaning of G.S. 7B-101.
N.C.G.S. § 7B-101(15) (2003) defines the term “neglected juvenile”
as follows:
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker; or
who has been abandoned; or who is not provided
necessary medical care; or who is not provided
necessary remedial care; or who lives in an
environment injurious to the juvenile'swelfare; or who has been placed for care or
adoption in violation of law.
“'Neglect may be manifested in ways less tangible than failure to
provide physical necessities. Therefore, on the question of
neglect, the trial judge may consider, in addition, a parent's
complete failure to provide the personal contact, love, and
affection that inheres in the parental relationship.'” In re Ore,
160 N.C. App. 586, 589, 586 S.E.2d 486, 488 (2003) (quoting In re
Pierce, 67 N.C. App. 257, 263, 312 S.E.2d 900, 904 (1984)). In
previous decisions, this Court has upheld findings of neglect where
a parent, e.g., infrequently corresponded with the person taking
care of the child and failed to inquire as to the well being of the
child, see In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d 83,
86 (2003); infrequently communicated with the child, In re Graham,
63 N.C. App. 146, 151, 303 S.E.2d 624, 627 (1983); failed to
provide financial support where able to do so, Bradshaw, 160 N.C.
App. at 682, 587 S.E.2d at 86; and, inter alia, did not send a card
or gift to acknowledge the child's birthday, In re Yocum, 158 N.C.
App. 198, 204, 580 S.E.2d 399, 403, aff'd, 357 N.C. 568, 597 S.E.2d
674 (2003).
In the instant case, the trial court's unchallenged findings
of fact indicate that Mr. Pierce consistently failed to provide
A.R.P. with love and emotional support, made infrequent and
lackluster attempts to communicate with A.R.P., did not ask about
the child during the course of his dealings with DSS, did not
provide the financial assistance that he was capable of providing,
and did not acknowledge the child's birthdays. In light of theseunchallenged findings, the trial court did not err in concluding
that these facts constituted neglect. Because the trial court's
conclusion with respect to neglect is supported by the trial
court's findings of fact, we need not address the other grounds
pursuant to which Mr. Pierce's parental rights to A.R.P. were
terminated. This assignment of error is overruled.
We next address Mr. Pierce's argument concerning the UCCJEA.
Mr. Pierce alleges that, under the UCCJEA, the district court did
not have jurisdiction to enter the order terminating his parental
rights because he filed a petition to modify a child custody order
in Montgomery County, New York on 9 November 2000. The record
indicates that the child traveled to New York with her mother on 1
November 2000 and returned to North Carolina on or before 29
December 2000. The record further indicates that, with the
exception of this brief trip to New York, A.R.P. has lived in North
Carolina since 1996.
The provision of the UCCJEA implicated by Mr. Pierce's
argument is N.C.G.S. § 50A-206 (2003), which provides:
(a) Except as otherwise provided in G.S.
50A-204 [temporary emergency jurisdiction], a
court of this State may not exercise its
jurisdiction under this Part if, at the time
of the commencement of the proceeding, a
proceeding concerning the custody of the child
has been commenced in a court of another state
having jurisdiction substantially in
conformity with this Article, unless the
proceeding has been terminated or is stayed by
the court of the other state because a court
of this State is a more convenient forum . . .
.
(b) Except as otherwise provided in G.S.
50A-204 [temporary emergency jurisdiction], acourt of this State, before hearing a
child-custody proceeding, shall examine the
court documents and other information supplied
by the parties pursuant to G.S. 50A-209. If
the court determines that a child-custody
proceeding has been commenced in a court in
another state having jurisdiction
substantially in accordance with this Article,
the court of this State shall stay its
proceeding and communicate with the court of
the other state. If the court of the state
having jurisdiction substantially in
accordance with this Article does not
determine that the court of this State is a
more appropriate forum, the court of this
State shall dismiss the proceeding.
(emphasis added). When there is an action pending in another
state, “the trial court must answer the threshold question of
whether the other state was exercising jurisdiction substantially
in conformity with [the uniform act].” Davis v. Davis, 53 N.C.
App. 531, 539-40, 281 S.E.2d 411, 416 (1981) (interpreting the
UCCJA).
In the instant case, the record is bereft of any indication
that, at the time Mr. Pierce moved for modification of the custody
order pertaining to A.R.P., New York had jurisdiction as the home
state pursuant to N.C.G.S. §§ 50A-201 and 202 (2003), had
jurisdiction to modify pursuant to N.C.G.S. § 50A-203 (2003), or
had temporary emergency jurisdiction under N.C.G.S. § 50A-204
(2003). Moreover, the record indicates that North Carolina did
have jurisdiction under some or all of the foregoing provisions of
the UCCJEA. As such, the district court did not err by declining
to stay its proceedings to contact the New York court; rather, the
district court properly concluded that it had jurisdiction to enterthe order terminating Mr. Pierce's parental rights as to A.R.P.
This assignment of error is overruled.
Affirmed.
Judges GEER and THORNBURG concur.
Report per Rule 30(e).
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