IN THE MATTER OF:
S.T.G.
Rutherford County
No. 03 J 27
Rebekah W. Davis, for respondent-appellant.
J. Christopher Callahan, for petitioner-appellee.
JACKSON, Judge.
On 6 March 2004, petitioner filed a petition with the trial
court to terminate respondent's parental rights. After termination
hearings held on 7 November 2003 and 24 November 2003, the trial
court entered an Order on 28 January 2004 terminating respondent's
parental rights. Respondent appeals from this Order. For the
reasons below, we affirm the decision of the trial court.
At the termination hearings, the testimony tended to show that
respondent was present when the minor child was born and
acknowledged paternity on the minor child's birth certificate.
Although never married, respondent and petitioner lived together in
Florida at the time of the minor child's birth and continued to
live together for several months thereafter. In October 2001,petitioner moved from Florida to North Carolina with the minor
child.
Based on the trial court's Order and the termination hearing
transcripts, the evidence tended to show that during 2001 through
2003, respondent has contacted petitioner five times, but has not
seen the minor child nor filed for custody. In December 2001,
respondent sent presents to the minor child by way of petitioner's
father, who was residing in Florida, and respondent's grandmother
sent one hundred and eighty dollars to petitioner for the minor
child on respondent's behalf. In 2002, respondent worked in an
orange grove on a tractor for a period of time and then repossessed
cars for six months. At some point near the end of 2002,
respondent's driver's license was suspended and respondent did not
own a car.
The evidence further showed that in August 2002, respondent
was incarcerated for approximately four months. After violating
probation, respondent was incarcerated from 5 January 2003 through
20 October 2003. While respondent was incarcerated, his
grandmother, at his request, maintained contact with petitioner and
then updated respondent on the minor child's condition. On 6
March 2003, while respondent was incarcerated, petitioner filed
this petition to terminate respondent's parental rights. After
respondent was released from incarceration, respondent moved to
Smithfield, North Carolina to live with his natural mother.
At the 7 November 2003 termination hearing, respondent
testified that since December 2002, he had mailed money orders topetitioner. Respondent, however, was unable to present receipts
for those money orders. At the 24 November 2003 termination
hearing, respondent also testified that he did not provide child
support to petitioner because she did not want the child support.
Petitioner, however, testified that she never refused child support
from respondent. Respondent did not communicate with the minor
child by telephone or letter while he was incarcerated. The
evidence also tended to show that respondent could not read or
write. Moreover, based on the pleadings and previous discussions
with petitioner, Laura A. Powell (“Powell”), the appointed guardian
ad litem for the minor child, concluded that respondent: (1) failed
to visit the minor child within the last two years; (2) failed to
provide any physical care for the minor child within the last two
years; and (3) willfully abandoned the minor child. Powell
ultimately determined that it would be in the minor child's best
interest to terminate respondent's parental rights.
On appeal, respondent contends that the trial court's findings
in the Order terminating his parental rights were not supported by
clear and convincing evidence. Specifically, respondent asserts
that the trial court erred when it determined: (1) respondent
worked in an orange grove and repossessed cars since petitioner
relocated to North Carolina but has made no effort to visit the
minor child; (2) respondent had the ability to maintain and
communicate with the minor child but failed to do so; (3)
respondent willfully abandoned the minor child for at least six
consecutive months immediately preceding filing of the petition;and (4) it is in the best interest of the minor child to terminate
respondent's parental rights.
Initially, it should be noted that respondent did not except
to the trial court's relevant findings of fact that (1) respondent
paid only one hundred and eighty dollars in child support once; (2)
at no time did petitioner disallow respondent from seeing the minor
child; (3) respondent's family inquired about the minor child but
these were not the actions of respondent; and (4) respondent was
not incarcerated for at least seven consecutive months since
petitioner moved to North Carolina. Therefore, these findings are
deemed conclusive on appeal. In re Caldwell, 75 N.C. App. 299,
301, 330 S.E.2d 513, 515 (1985)(citing In re Apa, 59 N.C. App. 322,
296 S.E.2d 811 (1982)).
As to the issue of whether the trial court properly terminated
respondent's parental rights, the appropriate standard of review is
whether the findings of facts were supported “by clear, cogent, and
convincing evidence,” and whether those findings support “the
conclusions of law.” In re Shepard, 162 N.C. App. 215, 221, 591
S.E.2d 1, 6, (2004)(citing In re Clark, 72 N.C. App. 118, 124, 323
S.E.2d 754, 758 (1984)). Specifically, to terminate respondent's
parental rights, the trial court was required to find “by clear,
cogent and convincing evidence” that at least one or more of the
nine grounds listed in North Carolina General Statutes, section 7B-
1111(a)(1-9) existed. In re Huff, 140 N.C. App. 288, 291, 536
S.E.2d 838, 840 (2000), appeal dismissed and disc. rev. denied, 353
N.C. 374, 547 S.E.2d 9 (2001). “Clear, cogent and convincingdescribes an evidentiary standard stricter than a preponderance of
the evidence, but less stringent than proof beyond a reasonable
doubt.” N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326
S.E.2d 320, 323 (1985)(citing In re Montgomery, 311 N.C. 101, 316
S.E.2d 246 (1984)), cert. denied, 314 N.C. 117, 332 S.E.2d 482
(1985); cert. denied, Sheffield v. North Carolina State Bar, 474
U.S. 981, 88 L.Ed.2d 338 (1985). This standard is defined as
“'evidence which should fully convince.'” Id. (quoting Williams v.
Blue Ridge Bldg. & Loan Ass'n, 207 N.C. 362, 177 S.E. 176 (1934)).
In the instant case, petitioner filed a petition to terminate
respondent's parental rights on 6 March 2003, therefore, as to the
issue of abandonment, respondent's actions between 6 September 2002
and 6 March 2003 are dispositive.
North Carolina General Statutes, section 7B-1111(a)(7)
provides that the court can terminate parental rights “if the
parent has willfully abandoned the juvenile for at least six
consecutive months immediately preceding the filing of the petition
or motion . . . .” N.C. Gen. Stat. § 7B-1111(a)(7)(2003).
Abandonment imports any wilful [sic] 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 . . . .
Abandonment has also been defined as
wilful [sic] neglect and refusal to
perform the natural and legal
obligations of parental care and
support. It has been held that if a
parent withholds his presence, his
love, his care, the opportunity to
display filial affection, and
wilfully [sic] neglects to lend
support and maintenance, such parentrelinquishes all parental claims and
abandons the child . . . .
Further, [a]bandonment requires a wilful [sic]
intent to escape parental responsibility and
conduct in effectuation of such intent. In
this context, the word 'willful' encompasses
more than an intention to do a thing; there
must also be purpose and deliberation.
Bost v. Van Nortwick, 117 N.C. App. 1, 18, 449 S.E.2d 911, 921
(1994)(internal citations omitted)(internal quotations omitted),
appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995). “Whether a
biological parent has a willful intent to abandon his child is a
question of fact to be determined from the evidence.” In re
Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514
(1986)(citing Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597
(1962)). See also In re Cardo, 41 N.C. App. 503, 506, 255 S.E.2d
440, 442 (1979)(“Legal abandonment . . . is not a transitory
concept that may be recessed at the whim of the transgressor”).
Based on the evidence presented at the hearings, the trial
court made the following findings of fact:
(1) Petitioner left Florida and
relocated to North Carolina in
October 2001;
(2) Since petitioner left Florida and
relocated to North Carolina,
respondent:
(a) has called approximately
five (5) times,
(b) has paid only one hundred and
eighty dollars to petitioner
for the support of the minor
child,
(c) has been incarcerated atleast
[sic] seven (7) consecutive
months, and
(d) has worked repossessing cars
and in an orange grove, but has
made no efforts to see the
minor child.
(3) Respondent cannot read or write;
(4) Respondent has had the ability to
maintain communication with the
minor child and to pay support but
has failed to do so;
(5) Ms. Powell, after an investigation,
found that it would be in the best
interest of the minor child to
terminate parental rights because
respondent has not seen the minor
child in two years and has only made
one child support payment;
(6) Respondent has wilfully abandoned
the minor child for atleast [sic]
six consecutive months proceeding
the filing of the petition; and
(7) Although respondent loves the minor
child and states good intentions,
the best interests of the minor
child required that respondent's
rights be terminated.
While the evidence also tended to show that respondent has had
mental and intellectual limitations, that he depended on his
grandmother for everyday decisions, and that he lacked steady
employment since petitioner relocated to North Carolina, we hold
that the record also supports the trial court's determination that
there was clear, cogent, and convincing evidence respondent
wilfully [sic] abandoned the minor child.
This Court has stated that the trial court must consider “the
financial support respondent has provided to the child, as well asthe respondent's emotional contributions to the child” during the
six month period preceding petitioner's filing the petition to
terminate parental rights. In re McLemore, 139 N.C. App. 426, 429,
533 S.E.2d 508, 510 (2000)(citing Bost, 117 N.C. App. at 18, 449
S.E.2d at 920-21).
Respondent contends that he was incarcerated for six or seven
months, thereby preventing him from calling the minor child.
Respondent also alleges that he cannot read or write so that he
cannot communicate by writing. We do recognize that this Court
previously has held that a respondent did not willfully abandon a
minor child “[b]ecause respondent was incarcerated, [therefore],
there was little involvement he could have” had with the minor
child. In re Shermer, 156 N.C. App. 281, 290, 576 S.E.2d 403, 409
(2003). In Shermer, the respondent “wr[o]te letters to . . . [his
children] and inform[ed] DSS that he did not want his rights
terminated.” Id. Although these were minor efforts by the
respondent to continue an ongoing relationship with the minor
child, it evinced an intent on his part to maintain involvement in
the minor child's life and thus eliminated the willful element of
abandonment.
In contrast, here respondent made no effort to contact the
minor child, provide financial support to the minor child, or send
letters to the minor child. While we are sympathetic to
respondent's inability to read or write, respondent did have other
options available to him to ensure that he had at least some
involvement in his child's life. See Bost, 117 N.C. App. 1, 18-19,449 S.E.2d 911, 921 (1994)(the trial court erred when it determined
that respondent willfully abandoned the minor child when
respondent, during the six months proceeding filing of termination
of parental rights petition, visited children during Christmas,
attended three soccer games, and told mother he wanted to set up
child support payments); In re Adoption of Searle, 82 N.C. App. at
276-77, 346 S.E.2d at 514 (1986)(“Respondent had been released from
prison for over one year before he sent any support money, and
respondent admitted in his testimony that the custody order did not
prevent him from supporting, calling or corresponding with the
child”); In re Apa, 59 N.C. App. at 324, 296 S.E.2d at 813 (“except
for an abandoned attempt to negotiate visitation and support,
respondent made no other significant attempt to establish a
relationship with [M.A.A.] or obtain rights of visitation with
[M.A.A.]”). Making no attempt whatsoever to maintain contact with
the minor child during the six months preceding petitioner's filing
for termination of parental rights exhibited a purposeful and
deliberate intent by respondent to willfully abandon the minor
child as contemplated by the statute. N.C. Gen. Stat. § 7B-
1111(a)(7).
Even looking beyond the relevant six month period, the
evidence tended to show that respondent only contacted petitioner
five times within two years, that respondent made one “feeble
attempt” to provide financially for the minor child by sending a
single payment of one hundred and eighty dollars, that respondent
sent presents to the minor child once within two years, thatrespondent never wrote or had someone write letters to the minor
child, that respondent never visited the minor child within two
years, and that respondent never filed for custody. In re
McLemore, 139 N.C. App. at 430, 533 S.E.2d at 510. Accordingly, we
hold the trial court did not err when it determined that sufficient
grounds existed to terminate respondent's parental rights and that
its findings were supported by clear, cogent, and convincing
evidence.
Having determined that the trial court properly found there
was clear, cogent and convincing evidence of at least one or more
grounds to terminate parental rights, we must then examine whether
the trial court abused its discretion in finding that it would be
in the child's best interest to terminate these parental rights.
In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910
(2001); In re Shermer, 156 N.C. App. at 285, 576 S.E.2d at 407
(2003). Respondent contends that the trial court abused its
discretion when it found that the best interest of the child would
be to terminate respondent's parental rights. We disagree.
In the instant case, the trial court heard testimony from
Powell, that, after an investigation, she determined it would be in
the best interest of the minor child if respondent's rights were
terminated because he had not seen the child in two years and had
made only one child support payment. Further, the trial court
determined that although respondent loves the minor child, the best
interest of the minor child would be to terminate respondent's
rights. Based on the evidence presented to the trial court,respondent, although capable, made no effort to maintain contact
with the minor child, respondent did not provide any financial
assistance for the minor child, respondent did not visit with the
minor child, and respondent only phoned petitioner about the minor
child five times in two years. Therefore, the trial court properly
found that grounds existed for termination under North Carolina
General Statutes, section 7B-1111(a)(7). We conclude that the
trial court did not abuse its discretion when it found that
termination of respondent's parental rights was in the minor
child's best interest. In re T.D.P., 164 N.C. App. 287, 291, 595
S.E.2d 735, 738 (2004), aff'd, 359 N.C. 405, 610 S.E.2d 199 (2005);
see also In re J.L.K., 165 N.C. App. 311, 319, 598 S.E.2d 387, 392
(2004), appeal dismissed, 359 N.C. 281, 609 S.E.2d 773 (2005), and
disc. rev. denied, 359 N.C. 68, 604 S.E.2d 314 (2000).
AFFIRM.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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