IN RE: L.T.L. Onslow County
No. 03 J 236
M. Lynn Smith, for petitioner-appellee.
Annick Lenoir-Peek, for respondent-appellant-father.
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.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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