Appeal by Respondent from order entered 9 March 2005 by Judge
Scott Etheridge in District Court, Moore County. Heard in the
Court of Appeals 10 October 2006.
Staton, Doster, Post & Silverman, by Jonathan Silverman, for
Robert T. Newman, Sr. for Respondent-Appellant.
Aubrey Lynn Cheek (Petitioner) is the biological mother of
B.D.C., a minor child. Petitioner filed a petition to terminate
the parental rights of Adrian Lawrence Lee (Respondent) to B.D.C.
on 1 November 2004. Petitioner alleged that Respondent is the
biological father of B.D.C., that B.D.C. had been born out of
wedlock, and that B.D.C. had never been legitimated by Respondent.
Petitioner alleged she has had continuous custody of B.D.C. since
the child's birth, and that she has had custody of B.D.C. with
Respondent's consent since the child was six months old.
Petitioner further alleged Respondent "has not provided substantial
financial support or consistent care with respect to [B.D.C.] and[Petitioner]."
Respondent did not file an answer or any responsive pleadings.
The petition was first scheduled for hearing on 13 December 2004
but was continued until 19 January 2005. Respondent did not appear
on 19 January 2005, and Respondent's counsel moved to continue.
The trial court continued the hearing until 23 February 2005.
Respondent's counsel again moved to continue the hearing on 23
February 2005, arguing as follows:
[Respondent] has been out of state working.
The correspondence caught up with him. I
tried numerous times to call; I was
unsuccessful. [Respondent] did call my
office, Your Honor, too, and I never had an
opportunity to speak to him; it's the first
time today. [Respondent] would like to
contest the termination. I haven't had time
to adequately . . . prepare, Your Honor, and
that would be my motion.
The trial court denied Respondent's motion to continue but recessed
court to allow Respondent to consult with his counsel.
Robert Alley was appointed as guardian ad litem (the GAL) for
B.D.C. The GAL testified that he met with Petitioner and
Petitioner's family but that he had not spoken with Respondent "due
to [Respondent's] lack of contact through his attorney[.]" The GAL
testified "that it would be in the best interest [of B.D.C.] to
terminate the parental rights [of Respondent]."
The trial court entered an order terminating Respondent's
parental rights on 9 March 2005. In the adjudication portion of
the order, the trial court concluded
[t]hat pursuant to N.C.G.S. § 7B-
1111(a)(5)(d), grounds exist to terminate
. . . Respondent's parental rights in that[B.D.C.] was born out of wedlock and that
prior to the filing of this Petition to
Terminate Parental Rights, . . . Respondent
has failed to provide substantial financial
support or consistent care with respect to
[B.D.C.] or [Petitioner].
In the dispositional section of the order, the trial court
concluded that "[it] is in the best interests of [B.D.C.] to
terminate the parental rights of . . . Respondent." The trial
court ordered that Respondent's parental rights be terminated.
Respondent first argues the trial court committed reversible
error by denying Respondent's motion to continue the 23 February
2005 termination of parental rights hearing. "'Ordinarily, a
motion to continue is addressed to the discretion of the trial
court, and absent a gross abuse of that discretion, the trial
court's ruling is not subject to review.'" In re D.Q.W.
, 167 N.C.
App. 38, 40, 604 S.E.2d 675, 676 (2004) (quoting State v. Taylor
354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001), cert. denied
v. North Carolina
, 535 U.S. 934, 152 L. Ed. 2d 221 (2002)). "If,
however, a motion to continue is based on a constitutional right,
then the motion presents a question of law which is fully
reviewable on appeal." State v. Smith
, 310 N.C. 108, 112, 310
S.E.2d 320, 323 (1984). "To establish that the trial court's
failure to give additional time to prepare constituted a
constitutional violation, [the] defendant must show 'how his case
would have been better prepared had the continuance been granted or
that he was materially prejudiced by the denial of his motion.'" State v. McCullers
, 341 N.C. 19, 31, 460 S.E.2d 163, 170 (1995)
(quoting State v. Covington
, 317 N.C. 127, 130, 343 S.E.2d 524, 526
Although Respondent now contends the trial court's denial of
his motion to continue denied him his "constitutionally protected
parental rights[,]" Respondent did not make this argument to the
trial court. Even assuming, arguendo
, that Respondent had
preserved a constitutional challenge to the denial of his motion to
continue, Respondent has not demonstrated prejudice. Respondent
appears to argue that he was prejudiced because he did not have an
opportunity to speak with his attorney prior to the hearing.
However, any inability to consult with counsel was caused by
Respondent. Respondent does not offer any excuse for his inability
to consult with his counsel other than the Christmas and New Year's
holidays and a trip to Atlanta in January 2005. Respondent had
already failed to appear for the 19 January 2005 hearing and
Respondent's counsel had made a motion to continue, which the trial
court granted. Moreover, at the beginning of the 23 February 2005
hearing, the trial court allowed a recess for Respondent to consult
with his counsel.
Respondent also appears to argue he was prejudiced because
"[a] continuance would also have allowed the [GAL] the opportunity
to obtain more information." The GAL testified that he might have
changed his opinion regarding termination of Respondent's parental
rights had Respondent met with him. However, Respondent failed to
contact the GAL prior to the hearing. As was the case withRespondent's failure to contact his counsel, Respondent is
responsible for the inability of the GAL to meet with Respondent.
For the reasons stated above, the trial court did not abuse its
discretion by denying Respondent's motion to continue the
termination of parental rights hearing.
Respondent next argues the trial court erred by admitting
hearsay testimony during the dispositional phase of the termination
hearing. "'Hearsay' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." N.C. Gen.
Stat. § 8C-1, Rule 801(c) (2005). "'However, out of court
statements offered for purposes other than to prove the truth of
the matter asserted are not considered hearsay.'" In re Mashburn
162 N.C. App. 386, 390, 591 S.E.2d 584, 588 (2004) (quoting State
, 356 N.C. 526, 542, 573 S.E.2d 899, 910 (2002), cert.
, Carroll v. North Carolina
, 539 U.S. 949, 156 L. Ed. 2d 640
In the present case, B.D.C.'s maternal grandmother was asked
on direct examination whether B.D.C was "aware that [Respondent]
[was] not in her life consistently[.]" Respondent objected and the
trial court stated: "Okay. I'm gonna . . . allow it, if she can
lay the foundation for that. And if she can't, renew your
objection and I'll strike it. So at this time, overruled. Go
ahead. If you can lay the foundation, perhaps she can testify to
that." Petitioner's counsel then pursued the following line ofquestioning:
Q. . . . Does [B.D.C.] ever ask about
A. No, she doesn't. She doesn't ask about
[Respondent]. She makes comments about
Q. What kind of comments does she make about
A. She says he's a mean man.
[RESPONDENT'S COUNSEL]: Objection, your Honor.
THE COURT: Okay. Overruled. Go ahead.
Q. . . . What else does she say?
A. She says she wants a new daddy;
[Respondent is] mean to her mommy.
[RESPONDENT'S COUNSEL]: Objection, Your
THE COURT: Thank you very kindly.
Overruled. I'm allowing this . . . not
for the truth of the matter asserted, but
the reason for her opinion. Thank you.
These statements are not hearsay because they were not
admitted for the truth of the statements. The statements were
admitted instead to explain the maternal grandmother's opinion that
B.D.C. was aware that Respondent was not consistently involved in
the child's life.
Even assuming, arguendo
, that these statements were
inadmissible hearsay, any error was harmless. The rules of
evidence are not as strictly enforced in a bench trial as they are
in a jury trial, and the trial court is presumed to disregard any
incompetent evidence unless it appears the trial court wasinfluenced by the incompetent evidence. In re L.O.K.
, ___ N.C.
App. ___, ___, 621 S.E.2d 236, 241 (2005). "'Where there is
competent evidence to support the [trial] court's findings, the
admission of incompetent evidence is not prejudicial.'" Id.
___, 621 S.E.2d at 241 (quoting In re McMillon
, 143 N.C. App. 402,
411, 546 S.E.2d 169, 175, disc. review denied
, 354 N.C. 218, 554
S.E.2d 341 (2001)). The party challenging the admission of
evidence bears the burden of demonstrating that the trial court
relied upon the incompetent evidence in formulating its findings of
at ___, 621 S.E.2d at 241.
In the present case, Respondent has not met his burden of
demonstrating prejudice. The trial court did not make any findings
of fact regarding the statements and therefore did not rely upon
the challenged evidence in formulating its findings of fact or
conclusions of law. We overrule this assignment of error.
Respondent next argues that findings of fact twenty-one and
thirty-four in the adjudication order were not supported by clear
and convincing evidence. The standard for appellate review of a
trial court's determination that grounds exist for termination of
parental rights is whether the trial court's findings of fact are
supported by clear, cogent, and convincing evidence, and whether
its conclusions of law are supported by those findings. In re
, 143 N.C. App. at 408, 546 S.E.2d at 174. When reviewing
a record on appeal, a trial court's findings of fact are conclusive
on appeal if supported by competent evidence, even if there wasconflicting evidence before the trial court. In re Williamson
N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).
Respondent challenges the following findings of fact:
21. . . . Respondent has never paid cash to
. . . Petitioner since [B.D.C.'s] birth to
34. . . . Respondent has had the ability to
pay his reasonable portion of child care
expenses based upon his various sources of
income and lack of bills.
For the reasons stated below, we conclude these findings of fact
are supported by clear, cogent and convincing evidence.
While Respondent testified that he gave Petitioner
approximately forty dollars in early 2004, Petitioner testified
that she had "never received cash from [Respondent.]" Respondent
also testified that he had "never actually given [Petitioner] a set
-- I mean, a set amount of money on -- you know, on a day like
every week. I've never done that." "In a nonjury trial, it is the
duty of the trial [court] to consider and weigh all of the
competent evidence, and to determine the credibility of the
witnesses and the weight to be given their testimony." In re
, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000). We
conclude finding twenty-one is supported by clear, cogent and
convincing evidence and therefore overrule this assignment of
With respect to finding thirty-four, Respondent testified that
he worked for a Ruby Tuesday's restaurant and Gold Kist poultry in
2004. Respondent also testified he earned $7,000.00 cleaning up
storm damage in Florida in October and November of 2004. Further,Respondent testified he received $1,500.00 from Atlantic Records in
February 2005; however, he testified this payment was a loan.
Respondent also testified that he lived with his mother. Based
upon this testimony, the trial court's finding of fact that
Respondent had the ability to support B.D.C. was shown by clear,
cogent and convincing evidence and we overrule this assignment of
Respondent next challenges the trial court's following
conclusion of law in the adjudication order:
That pursuant to N.C.G.S. § 7B-1111(a)(5)(d),
grounds exist to terminate . . . Respondent's
parental rights in that [B.D.C.] was born out
of wedlock and that prior to the filing of
this Petition to Terminate Parental Rights,
. . . Respondent has failed to provide
substantial financial support or consistent
care with respect to [B.D.C.] or [Petitioner].
Respondent's only argument in support of this assignment of error
is that because the challenged findings of fact were not supported
by competent evidence, the findings do not support the conclusion
of law. However, we have already determined that the challenged
findings of fact were supported by clear, cogent, and convincing
evidence. Those findings, along with the unchallenged findings of
fact, clearly support the trial court's conclusion of law that
grounds existed to terminate Respondent's parental rights. See
N.C. Gen. Stat. § 7B-1111(a)(5)(d) (stating that a trial court may
terminate parental rights upon a finding that "[t]he father of a
juvenile born out of wedlock has not, prior to the filing of a
petition or motion to terminate parental rights: . . . d. Providedsubstantial financial support or consistent care with respect to
the juvenile and mother."). Therefore, we overrule this assignment
Respondent next assigns error to disposition findings of fact
four and sixteen on the ground that they are not supported by the
evidence. Respondent also assigns error to disposition conclusion
of law one on the ground that it is not supported by the findings
of fact. However, Respondent did not set forth any argument
pertaining to these assignments of error in his brief and we deem
them abandoned. N.C.R. App. P. 28(b)(6). Respondent appears to
argue that the trial court abused its discretion by terminating
Respondent's parental rights because "[g]rounds to terminate
[Respondent's] parental rights were not proven by clear, cogent and
Termination of parental rights proceedings are conducted in
two phases: adjudication and disposition. See generally, In re
, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). During
the adjudication phase, a petitioner has the burden of proving by
clear, cogent and convincing evidence that one or more of the
statutory grounds for termination exist. In re Blackburn
, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). If, in the adjudication
phase, a petitioner meets the burden of proving that there is at
least one statutory ground on which to terminate parental rights,
the trial court then moves to the disposition phase and must
consider whether termination is in the best interests of the child. Id.
A trial court's decision to terminate parental rights is
reviewed by an abuse of discretion standard. In re Brim,
App. at 745, 535 S.E.2d at 374.
Respondent argues the present case is similar to In re Young
346 N.C. 244, 485 S.E.2d 612 (1997), where our Supreme Court
reversed an order terminating the respondent's parental rights
where there was insufficient clear and convincing evidence to
support the grounds for termination. Id.
at 253, 485 S.E.2d at
618. However, in the present case, we have already determined that
the trial court's adjudicatory findings were supported by clear,
cogent and convincing evidence and that the trial court's
adjudicatory conclusion of law was supported by the findings.
Therefore, we have determined that grounds existed to terminate
Respondent's parental rights.
In reviewing the dispositional order, we only determine
whether the trial court abused its discretion. The following
unchallenged findings of fact support the trial court's conclusion
of law that it was in the best interests of B.D.C. to terminate
Respondent's parental rights:
13. Respondent has provided no evidence of
any relationship between himself and [B.D.C.].
14. Respondent has no evidence of spending
time with [B.D.C.] or any correspondence with
15. No evidence exists that there is any kind
of a relationship between . . . Respondent and
[B.D.C.] at all.
. . .
17. Respondent's lack of interest is bestexhibited by the following:
a. That even when . . . Respondent was
employed full time and earning income at
a "side job" he failed to pay any child
b. That Respondent is now essentially
unemployed and making no attempt to
obtain regular employment in order to
support . . . [B.D.C.].
c. . . . Respondent's lack of contact
18. [B.D.C.] has a close bond with
. . . Petitioner and . . . Petitioner's
19. [B.D.C.] has a healthy, stable
relationship with the maternal grandparents
who have provided much of the care that
. . . Respondent should have provided to
20. The best evidence in front of the [trial
court] indicates that [B.D.C.] has a happy and
healthy life with . . . Petitioner and the
maternal side of the family.
. . .
26. The [GAL] provided a recommendation to
the [trial court] that it was in the best
interests of [B.D.C.] that . . . Respondent's
parental rights be terminated.
Accordingly, we conclude the trial court did not abuse its
discretion by concluding that it was in B.D.C.'s best interests to
terminate Respondent's parental rights.
Respondent also relies upon Bost v. Van Nortwick
, 117 N.C.
App. 1, 449 S.E.2d 911 (1994), where our Court held that the trial
court abused its discretion by concluding it was in the best
interests of the children to terminate the respondent's parental
at 13, 449 S.E.2d at 918. Specifically, in thepresent case, Respondent argues that "although [B.D.C.] appears to
be well settled with [Petitioner] in [B.D.C.'s] grandmother's home,
as in Bost
[,] . . . this is not grounds to terminate
. . . [R]espondent['s] . . . parental rights." (Brief at 21).
is distinguishable from the present case for several
reasons. First, while our Court did hold in Bost
that "a finding
that the children are well settled in their new family unit
. . . does not alone support a finding that it is in the best
interest of the children to terminate [the] respondent's parental
, 117 N.C. App. at 8, 449 S.E.2d at 915, this was
not the sole basis for the trial court's determination in the
present case. Although the trial court in the present case found
that B.D.C. had a "happy and healthy life with . . . Petitioner and
the maternal side of the family[,]" the trial court also made
several findings that Respondent did not have any relationship with
B.D.C. The combination of these facts support the trial court's
determination that termination was in B.D.C.'s best interests.
Second, while the respondent in Bost
had once been unable to
maintain employment or relationships with the children because of
his alcoholism, the evidence showed that the respondent had ceased
using alcohol a few years prior to the filing of the termination
petition, had paid large sums of back child support, and had begun
visiting the children. Bost
, 117 N.C. App. at 5-6, 449 S.E.2d at
913-14. Unlike in Bost
, Respondent in the present case has never
had a relationship with B.D.C. Respondent has not demonstrated a
willingness or ability to be involved in B.D.C.'s life. Rather, asRespondent's counsel argued, Respondent "wants to be a father now.
He wants to do whatever it takes to be a father. Yes, it is late,
Your Honor, but to terminate now without giving [Respondent] an
opportunity, although it would be late, . . . it would be the end
of . . . everything for him." Finally, while the guardian ad litem
and a court appointed psychologist in Bost
thought it would be in
the best interests of the children not to terminate the
respondent's parental rights, Bost
, 117 N.C. App. at 9, 449 S.E.2d
at 916, the GAL in the present case testified that termination of
Respondent's parental rights would be in B.D.C.'s best interests.
For the reasons stated above, we overrule the assignments of error
grouped under this argument.
Respondent fails to set forth arguments pertaining to his
remaining assignments of error and we deem them abandoned pursuant
to N.C.R. App. P. 28(b)(6).
Judges WYNN and McCULLOUGH concur.
Report per Rule 30(e).
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