In Re: J.A., Anson County
No. 99 J 27
A Minor Child.
Paul S. Prelipp for petitioner-appellee Anson County
Department of Social Services.
Richard E. Jester for respondent-appellant mother.
Vita Pastorini as guardian ad litem.
This appeal arises from the district court's decision to terminate Cynthia A.'s (respondent) parental rights to her son J.A. After careful review, we affirm the order of the trial court.
A proceeding for termination of parental rights is conducted in two phases. During the adjudication phase, the petitioner must prove by clear, cogent, and convincing evidence that one or more of the statutory grounds for termination exists. N.C. Gen. Stat. § 7B-1109(e) and (f) (2005). Here, the district court found evidence to support termination of respondent's parental rights on the grounds that she neglected, see N.C. Gen. Stat. § 7B-1111(a)(1) (2005), and willfully abandoned J.A., see id. § 7B-1111(a)(7).The standard of appellate review is whether the evidence supports the district court's findings and the findings, in turn, support the conclusions of law. In re Yocum, 158 N.C. App. 198, 203, 580 S.E.2d 399, 403, aff'd per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003); In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). If the petitioner proves that one or more grounds for termination exist, the district court moves to the disposition phase. At this time, the district court determines whether termination is in the best interests of the child. N.C. Gen. Stat. § 7B-1110(a) (2005); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). The standard of review on appeal is abuse of discretion. In re Yocum, 158 N.C. App. at 206, 580 S.E.2d at 404; In re Brim, 139 N.C. App. 733, 744-45, 535 S.E.2d 367, 373-74 (2000).
When reviewing the record, a district court's findings of fact are conclusive on appeal if supported by competent evidence, even if there was conflicting evidence before the court. In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). Additionally, findings of fact which were not assigned as error in the record on appeal are conclusive on appeal. Dreyer v. Smith, 163 N.C. App. 155, 156-57, 592 S.E.2d 594, 595 (2004).
Before we address issues surrounding the findings and conclusions of the district court, however, respondent brings forth two procedural issues regarding the termination hearing. First, respondent argues that the trial court was partial to petitioner as evidenced when the court aided petitioner's counsel in elicitingtestimony from a witness for the Anson County Department of Social Services (DSS). We disagree. Mary Kendall, the supervising social worker on J.A.'s case, was questioned as to how respondent lost her privileges in prison. Respondent's counsel objected, but the reason for his objection was inaudible. It appears, from the context of the record, it was on the grounds that the question would elicit hearsay testimony. The judge then asked several questions of the witness, but never made a ruling on the objection.
When reviewing a trial court's questions, we must look at them in the light of all the facts and attendant circumstances disclosed by the record . . . . Andrews v. Andrews, 243 N.C. 779, 781, 92 S.E.2d 180, 181 (1956) (quoted in State v. Fleming, 350 N.C. 109, 129-30, 512 S.E.2d 720, 735 (1999)). Here, the record is relatively clear that the judge was attempting to determine if Ms. Kendall acquired the information from respondent, a party-opponent to the proceeding, or from someone else. Thus, the question was designed to aid the district court in ruling on respondent counsel's hearsay objection. We see no error in the district court's actions here. See Fleming, 350 N.C. at 125-130, 512 S.E.2d at 732-35 (determining that the trial court's numerous questions of witnesses, including the phrasing of questions to avoid objectionable testimony, did not violate the duty of impartiality); State v. Curry, ___ N.C. App. ___, ___, 615 S.E.2d 327, 332-33 (2005) (trial court's duty to remain impartial not breached by asking clarifying questions of defense witness). Second, respondent argues that it was error for the court to receive the juvenile's case file into evidence on the basis that the file contains: 1) orders not held to the same evidentiary standard as the termination hearing, and 2) reports containing hearsay. Foremost, respondent failed to object to the admission of the case file, thus waiving any exception to the file's admission. See In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Even assuming the issue was properly preserved, this Court has determined that admission of a juvenile's case file is not error, although the better practice would be to take judicial notice of it. See In re Byrd, 72 N.C. App. 277, 279, 282, 324 S.E.2d 273, 276 (1985) (court file properly admitted; hearsay not a concern when file is admitted to show previous steps taken by court and DSS). Having therefore addressed respondent's procedural concerns, and finding them to be without merit, we will review the district court's order terminating respondent's parental rights. (See footnote 1)
Respondent has been incarcerated in South Carolina during the entire period DSS has been involved with the minor. At the time of the 8 October 2004 hearing, J.A. had been in DSS care for over five years. Respondent has communicated with J.A. or DSS very few times over the course of her incarceration. In fact, the last communication by respondent to J.A. occurred about fifteen monthsbefore the hearing. The minor's DSS case worker and supervisor testified that they have been unable to maintain any consistent contact with respondent due to the fact she repeatedly loses her writing privileges or is placed in isolation. As part of her case plan, respondent was supposed to participate in her reconciliation by writing letters and maintaining her privileges within the prison.
Respondent takes exception to numerous findings of the district court, in particular those that address respondent's lack of good behavior leading to the removal of her privileges in prison. Respondent contends there was not clear, cogent, and convincing evidence to support these findings. We nonetheless find substantial evidence to support the findings that respondent had not communicated with J.A. in the last fifteen months and any contact before that was sporadic at best. Further, J.A.'s case worker testified that only once in five years had respondent been in contact regarding getting Christmas gifts or cards to her son. We find these facts sufficient to support the grounds for termination expressed by the district court.
As stated earlier, the district court determined that J.A. was neglected and respondent had abandoned him. A juvenile is neglected when the child does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; . . . or who lives in an environment injurious to the juvenile's welfare. N.C. Gen. Stat. § 7B-101(15) (2005); see also N.C. Gen. Stat. § 7B-1111(a)(1) (2005) (being a neglected juvenile as defined in section 7B-101 is proper grounds for termination of the parent's rights). Willful abandonment, as required by section 7B-1111(a)(7), has been held to encompass situations where a parent withholds his presence, his love, his care, the opportunity to display filial affection, and [willfully] neglects to lend support and maintenance[.] In re McLemore, 139 N.C. App. 426, 429, 533 S.E.2d 508, 509 (2000) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)). Despite incarceration, a parent failing to have any contact can be found to have willfully abandoned the child . . . . In re D.J.D., ___ N.C. App. ___, ___, 615 S.E.2d 26, 33-34 (2005) (citing In re Adoption of Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986)); In re McLemore, 139 N.C. App. at 430-31, 533 S.E.2d at 510 (lack of emotional support, which in turn supports a conclusion of willful abandonment, shown by respondent who made only one attempted contact in statutory period). There is substantial evidence supporting the fact that in the six months leading up to the petition, and even during the pendency of the termination hearing, respondent did not make a single contact with her child or DSS. See, e.g., In re P.L.P., ___ N.C. App. ___, 618 S.E.2d 241 (2005), aff'd, ___ N.C. ___, ___ S.E.2d ___ (3 March 2006) (No. 521A05) (incarcerated father neglected child by failing to have any meaningful contact with child even though writing and communication were available).
Having appropriate evidence for its findings, we see no error in the district court's conclusion that J.A. was willfullyabandoned by respondent. We also find the district court did not abuse its discretion in determining that it was in J.A.'s best interest to terminate respondent's parental rights. Accordingly, we affirm the order of the district court.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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