An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-919

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

IN THE MATTER OF:
        S.T.G.
                            Rutherford County
                            No. 03 J 27

    Appeal by respondent-father from order entered 28 January 2004 by Judge Mark E. Powell in Rutherford County Superior Court. Heard in the Court of Appeals 2 March 2005.

    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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