IN RE: L.T.L. Onslow County
No. 03 J 236
M. Lynn Smith, for petitioner-appellee.
Annick Lenoir-Peek, for respondent-appellant-father.
STEELMAN, Judge.
Petitioner-mother and respondent-father are the parents of the
minor child L.T.L., who was born on 21 October 1997. L.T.L.'s
parents separated in July of 2000, and petitioner retained primary
custody of the child. Respondent was charged with assorted crimes
on 11 September 2000 and held in jail until his trial. He was
convicted of first-degree rape, second-degree burglary and second-
degree kidnapping in March of 2001. Respondent will not be
released from prison before L.T.L. reaches the age of majority.
Respondent has not seen the child since he was incarcerated, and
petitioner has had sole legal custody of the child since 27 July
2000. Petitioner remarried 19 January 2002, and L.T.L. lives with
his mother, step-father, and a half-brother from this marriage who
is just over two years old. Petitioner filed a petition toterminate respondent's parental rights on 10 July 2003, alleging
that respondent had willfully abandoned the child for at least six
consecutive months immediately preceding the filing of the
petition, and that respondent was incapable of providing for the
proper care and supervision of the child and that the child is a
dependent juvenile. By order dated 16 October 2003 the trial court
adjudged that grounds existed to terminate respondent's parental
rights, specifically that he had abandoned L.T.L. for six months
immediately preceding the filing of the petition to terminate his
parental rights. N.C. Gen. Stat. § 7B-1111(a)(7)(2003). By order
dated 26 November 2003 the trial court adjudged that it was in the
best interests of the child to terminate respondent's parental
rights, and ordered those rights terminated. From this order
respondent appeals.
In his first argument, respondent contends that the trial
court committed reversible error in terminating his parental rights
when he did not receive adequate notice of the termination hearing.
We disagree.
By notice of hearing filed 18 August 2003 respondent was
informed that a hearing regarding the petition to terminate his
parental rights would take place on 15 September 2003. In fact,
the hearing took place on 16 September 2003. Respondent and his
attorney were present at the hearing, and participated in it
without objecting to any alleged defect of notice. Respondent now
argues for the first time on appeal that this alleged defect in
notice violates the mandate of N.C. Gen. Stat. § 7B-1106.1(b)(2003) and requires reversal and a new hearing. Even assuming
arguendo that notice was defective, because respondent attended the
hearing without objecting to this defect, he has waived that right.
In re B.M., __ N.C. App. __, __, 607 S.E.2d 698, 702 (2005). This
argument is without merit.
In his second argument respondent contends that the trial
court erred in not allowing his mother to testify at the hearing.
We disagree.
On the day of trial respondent made his first request that his
mother be allowed to testify on his behalf by telephone.
Petitioner objected to the method of testimony, and the trial court
decided to allow the guardian ad litem for the child to question
respondent's mother and report back to the court. Though
respondent now contends this refusal to allow the telephonic
testimony constitutes reversible error, he does not make any
argument as to how this ruling of the trial court prejudiced him in
any way. Respondent has not made any showing of what additional
information his mother would have provided, nor how the exclusion
of this evidence has prejudiced him. It was respondent's burden to
show prejudice, and he has not met that burden. Warren v.
Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864 (1985).
This argument is without merit.
In his third argument, respondent contends that the trial
court committed reversible error in admitting the guardian ad
litem's report and testimony prior to the best interest hearing. It is clear that the guardian ad litem submitted his report to
the trial court on 16 September 2003, the day of the adjudication
hearing. The disposition hearing was conducted on 30 October 2003.
At the adjudication hearing the guardian ad litem only discussed
his conversation with respondent's mother concerning the questions
provided to him for that purpose by the attorneys from both sides.
As discussed in response to respondent's second argument,
respondent has not indicated how this evidence had prejudiced him
in any manner. In an order filed 16 October 2003 finding grounds
to terminate respondent's parental rights, the trial court found as
fact that though it had received the report of the guardian ad
litem prior to adjudication, it did not “examine it or consider its
contents for the purposes of these findings, unless said
information was properly admitted from a competent witness under
oath.” Respondent does not assign as error this finding of fact,
and it is binding on appeal.
In re Beasley, 147 N.C. App. 399, 405,
555 S.E.2d 643, 647 (2001).
Further, we find no evidence in the
record that the trial court improperly considered this evidence in
making its adjudication determination. This argument is without
merit.
In his fourth argument respondent asserts that the trial court
erred in its determination that he abandoned the child pursuant to
N.C. Gen. Stat. § 7B-1111(a)(7)(2003). We disagree.
“'The standard of review in termination of parental rights
cases is whether the findings of fact are supported by clear,
cogent and convincing evidence and whether these findings, in turn,support the conclusions of law.' We then consider, based on the
grounds found for termination, whether the trial court abused its
discretion in finding termination to be in the best interest of the
child.”
In re Shepard, 162 N.C. App. 215, 221-22, 591 S.E.2d 1, 6
(2004)(citation omitted).
N.C. Gen. Stat. § 7B-1111 states in relevant part: “(a) The
court may terminate the parental rights upon a finding of one or
more of the following: . . . . (7) The parent has willfully
abandoned the juvenile for at least six consecutive months
immediately preceding the filing of the petition or motion . . . .”
Petitioner filed a petition to terminate respondent's parental
rights on 10 July 2003 alleging that respondent had willfully
abandoned the child for at least six consecutive months immediately
preceding the filing of the petition pursuant to N.C. Gen. Stat. §
7B-1111(a)(7)(2003). The relevant time period is thus 10 January
2003 through 10 July 2003.
Respondent bases his argument on his assignments of error
numbers four and five which state: “The trial court erred in
finding that respondent had abandoned his son.” And: “The trial
court erred in concluding that respondent had abandoned his son.”
We first note that respondent has not specifically assigned any
findings of fact as error, and we find that there is clear cogent
and convincing evidence in the record to support the trial court's
findings of fact. These findings of fact are therefore binding on
appeal.
In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647
(2001); In re Shepard, 162 N.C. App. 215, 222, 591 S.E.2d 1, 6(2004)
.
Our review is therefore limited to whether the trial
court's findings of fact support its conclusions of law and
disposition.
In re Shepard, 162 N.C. App. at 221-22, 591 S.E.2d at
6
.
“Abandonment 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.” “It has been held that if a parent
withholds his presence, his love, his care,
the opportunity to display filial affection,
and [willfully] neglects to lend support and
maintenance, such parent relinquishes all
parental claims and abandons the child.” The
word “willful” encompasses more than a mere
intention, but also purpose and deliberation.
In re McLemore, 139 N.C. App. 426, 429, 533 S.E.2d 508, 509
(2000)(internal citations omitted).
“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).
The trial court found
as fact:
That the Respondent has willfully neglected
and refused to perform the natural and legal
parental obligations of care, support,
presence, love, care, and opportunity to
display filial affection.
That the Respondent has the ability to pay
some amount of support greater than zero by
his existing financial resources and that he
has willfully failed to pay child support for
the use and benefit of the said minor child
for the entire time he has been incarcerated
and at least six months prior to the filing of
the Petition.
The trial court further found as fact that the respondent has had
only six contacts with the child in the past three years, all byeither card or letter; that in a prior domestic case where
respondent was awarded no visitation privileges with the child he
never made an appearance or filed an answer; and that respondent
has made minimal effort to arrange for visitation or court ordered
contact with the child since his incarceration, and none in the
relevant six month period. We hold that these findings of fact
support the trial court's conclusions of law and judgment that
respondent has willfully abandoned the child pursuant to N.C. Gen.
Stat. § 7B-1111(a)(7). This argument is without merit.
In his final argument, respondent assigns as error the trial
courts determination that terminating his parental rights was in
the best interests of the child. We disagree.
N.C. Gen. Stat. § 7B-1110(a) states:
Should the court determine that any one or
more of the conditions authorizing a
termination of the parental rights of a parent
exist, the court shall issue an order
terminating the parental rights of such parent
with respect to the juvenile unless the court
shall further determine that the best
interests of the juvenile require that the
parental rights of the parent not be
terminated. Any order shall be reduced to
writing, signed, and entered no later than 30
days following the completion of the
termination of parental rights hearing.
Our standard of review is abuse of discretion. In re J.A.O., 166
N.C. App. 222, 224, 601 S.E.2d 226, 228 (2004). “In this case, the
trial judge first determined that one of the grounds for
termination did exist. He then declined to exercise his discretion
not to terminate respondent's parental rights.” In re Roberson, 97
N.C. App. 277, 282, 387 S.E.2d 668, 671 (1990). Respondent failsto show that the trial court abused this discretion. This argument
is without merit.
AFFIRMED.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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