An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 21 November 2006
IN THE MATTER OF: Sampson County
No. 04 J 67
A MINOR CHILD.
Appeal by respondent-father from judgment entered 24 May 2005
by Judge Leonard W. Thagard in Sampson County Superior Court.
Heard in the Court of Appeals 17 October 2006.
Daughtry, Woodard, Lawrence & Starling, by K. Alice Morrison,
for petitioner-mother appellee.
Terry F. Rose for respondent-father appellant.
Respondent-father (respondent) appeals from a district court
judgment terminating his parental rights to his minor child A.B.J.
Petitioner is the mother of A.B.J., the minor child.
Respondent is the father of A.B.J. Petitioner and respondent were
married to each other on 19 April 1999 and obtained an absolute
divorce on 4 February 2002.
Respondent and petitioner resided together with A.B.J. from 18
November 1999 until February 2000, when respondent was
incarcerated. Respondent's first period of incarceration after
A.B.J.'s birth was from February 2000 until August 2000. Duringthat time, petitioner took A.B.J. for visitation with respondent on
Respondent was released in August 2000 and resided with
petitioner and A.B.J. for approximately two to three weeks before
petitioner filed for and obtained a domestic violence protective
order. The order concluded that there was a danger of serious and
imminent injury to petitioner and A.B.J. It ordered respondent to
have no contact with petitioner nor A.B.J. nor any member of
petitioner's family or household. It also prohibited respondent
from possessing or purchasing a firearm and granted petitioner
temporary custody of A.B.J. Petitioner had respondent arrested
several times during the year the domestic violence protective
order was in effect.
Petitioner filed for custody of A.B.J. Respondent was
incarcerated at the time petitioner brought her lawsuit, but he
filed an answer indicating that he did not contest full custody
because he was in no position to care for A.B.J.; however, he did
request visitation with A.B.J. Petitioner was awarded custody of
A.B.J. on or about 20 July 2001.
(See footnote 1)
Respondent admits that he has been charged with larceny,
injury to property and breaking and entering, and robbery.
Respondent also admits that he has been incarcerated for the
majority of A.B.J.'s life. Respondent is presently in his fifthmonth of active participation in the Recovery Ventures Program, a
24-month residential program for substance abusers. The earliest
that respondent could successfully complete the substance abuse
program is December 2006.
The only time respondent has interacted with A.B.J. since the
parties' separation in August 2000 was during Easter 2001. Since
Easter 2001, respondent's only attempts to contact A.B.J. include
a letter sent on 16 December 2002 and a phone call in October 2003.
Also, respondent made no attempt to contact or make inquiry
regarding A.B.J. from 5 April 2004 to 5 October 2004.
A petition for termination of parental rights was filed on 6
October 2004. The trial court ruled that the parental rights of
respondent regarding A.B.J. should be terminated. Based on clear,
cogent, and convincing evidence, the court concluded that
respondent willfully abandoned A.B.J. for at least six consecutive
months preceding the filing of the petition and that it was in the
best interest of A.B.J. to terminate the parental rights of
Respondent contends that the order of termination should be
reversed because the petition to terminate respondent's parental
rights was legally insufficient to allege grounds for termination.
Specifically, respondent argues the motion only recited the bare
statutory grounds for termination. However, because respondentattempts to raise this issue for the first time on appeal,
respondent's argument is without merit.
A petition or motion to terminate parental rights must contain
"[f]acts that are sufficient to warrant a determination that one or
more of the grounds for terminating parental rights exist." N.C.
Gen. Stat. § 7B-1104(6) (2005). Respondent relies on In re
Hardesty, 150 N.C. App. 380, 563 S.E.2d 79 (2002), and In re
Quevedo, 106 N.C. App. 574, 419 S.E.2d 158, appeal dismissed, 332
N.C. 483, 424 S.E.2d 397 (1992), to argue that the motion to
terminate his parental rights was legally insufficient. The
petition in Hardesty merely used words similar to those in the
statute setting out [the applicable] ground[ ] for termination
. . . without alleging any facts particular to the respondent.
Hardesty, 150 N.C. App. at 384, 563 S.E.2d at 82. The respondent in
Hardesty moved to dismiss the petition under N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6) for failure to state a claim based upon that
statutory ground. Hardesty, 150 N.C. App. at 383, 563 S.E.2d at
82. We determined that a petitioner's bare recitation of the
alleged statutory ground for termination of parental rights did not
satisfy the requirements of N.C. Gen. Stat. § 7B-1104(6). Hardesty,
150 N.C. at 384, 563 S.E.2d at 82. We further stated that [w]hile
there is no requirement that the factual allegations be exhaustive
or extensive, they must put a party on notice as to what acts,
omissions or conditions are at issue. Id. We determined that the
respondent's Rule 12(b)(6) motion to dismiss for failure to statea claim should have been granted, and we reversed the termination
of the respondent's parental rights on that ground. Id.
In Quevedo, the petition merely cited the statutory language
as grounds for termination of parental rights. Quevedo, 106 N.C.
App. at 579, 419 S.E.2d at 160. The respondent made a motion on
the pleadings according to Rule 12(c) contesting the petition. Id.
at 578, 419 S.E.2d at 159. The Court, treating the Rule 12(c)
motion as a Rule 12(b)(6) motion, disagreed with the respondent
because the petition incorporated an attached custody award which
stated sufficient facts. Id. at 578-79, 419 S.E.2d at 159-60.
The present case is distinguishable from Hardesty and Quevedo.
In Hardesty, the respondent challenged the sufficiency of the
petition to terminate her parental rights by a Rule 12(b)(6) motion
to dismiss for failure to state a claim, which the trial court
denied. Hardesty, 150 N.C. App. at 383, 563 S.E.2d at 82. In
Quevedo, the respondent made a pretrial motion for judgment on the
pleadings pursuant to Rule 12(c), which the trial court treated as
a Rule (12)(b)(6) motion and denied. Quevedo, 106 N.C. App. at
578, 419 S.E.2d at 159. However, unlike Hardesty and Quevedo,
respondent in the instant case did not contest the sufficiency of
the petition at trial. Respondent did make a motion to dismiss
based upon appellee's evidence presented at the hearing, but based
on our review of the record, respondent never made a motion
contesting the petition.
Accordingly, we disagree with respondent.
Respondent contends that the trial court erred in denying his
motion to dismiss at the close of petitioner's evidence. We
In a proceeding to terminate parental rights, the court may
allow a motion to dismiss made at the close of the petitioner's
evidence if it determines that the petitioner has not made a
showing of a right to relief or that, even if the petitioner has
made a colorable claim, the respondent is entitled to judgment on
the merits. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 909 (2001). The motion may be granted only in the clearest
case. In re Becker, 111 N.C. App. 85, 92, 431 S.E.2d 820, 825
(1993). The trial court is able to weigh all evidence before it
and make a determination. Blackburn, 142 N.C. App. at 610, 543
S.E.2d at 909.
In the instant case, petitioner alleged in the petition to
terminate respondent's parental rights that respondent had
willfully abandoned A.B.J. for at least six consecutive months
immediately preceding the filing of the petition. Here there was
evidence offered at trial supporting this allegation. The petition
was filed on 6 October 2004. Petitioner testified that from April
2004 to October 2004, she received no phone calls, letters, cards,
or any gifts from respondent for A.B.J. Further, petitioner stated
since November 2000, respondent has contacted her two times
regarding A.B.J., once with a letter in December 2002 and once by
telephone in October 2003. Petitioner's husband at the time of thetrial court proceedings testified that the only phone call he knew
of that the respondent made to his house was one in October 2003.
The evidence establishes a basis for surviving the motion to
dismiss. Respondent has not shown that he is entitled to judgment
on the merits at the close of petitioner's evidence.
Accordingly, we disagree with respondent's contention.
The remaining contentions of respondent all relate to the
trial court's findings of fact and conclusions of law.
Specifically, respondent makes four contentions: (1) that the trial
court erred in finding as fact that respondent's family had not
requested visitation with A.B.J. since the separation of the
parties; (2) that the trial court erred in concluding that
respondent willfully abandoned A.B.J. for at least six months
preceding the filing of the petition and effectively for four years
prior to the filing of the petition; (3) that the trial court erred
in concluding there was no reasonable possibility of a meaningful
relationship between respondent and A.B.J., as there was no finding
of fact or evidence to support such a conclusion; and (4) that the
trial court erred in concluding that it was in the best interest of
A.B.J. to have respondent's parental rights terminated, as the
court made no findings of fact as to the child and his best
interests that would support such a conclusion. We disagree.
There are two stages to a termination of parental rights
proceeding: adjudication and disposition. In re Brim
, 139 N.C. App.
733, 741, 535 S.E.2d 367, 371 (2000). During the adjudicationstage, the petitioner has the burden of proof by clear, cogent, and
convincing evidence that one or more of the statutory grounds set
forth in N.C. Gen. Stat. § 7B-1111 (2005) exists. N.C. Gen. Stat.
§ 7B-1109(e)-(f) (2005). A finding of any one of the grounds
enumerated [in N.C. Gen. Stat. § 7B-1111], if supported by
competent evidence, is sufficient to support a termination. In re
, 165 N.C. App. 311, 317, 598 S.E.2d 387, 391, disc. review
, 359 N.C. 68, 604 S.E.2d 314 (2004).
The standard of appellate review is whether the trial court's
'findings of fact are based upon clear, cogent, and convincing
evidence' and whether the 'findings support the conclusions of
law.' In re Huff
, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000) (citation omitted), appeal dismissed, disc. review denied
353 N.C. 374, 547 S.E.2d 9, 10 (2001).
After a trial court determines that grounds to terminate
parental rights exist, the court shall determine whether
terminating the parent's rights is in the juvenile's best
interest. N.C. Gen. Stat. § 7B-1110(a) (2005). Whether termination
is in the best interests of the child is discretionary, and a court
may decline to terminate parental rights only where there is
reasonable hope that the family unit within a reasonable period of
time can reunite and provide for the emotional and physical welfare
of the child[.] Blackburn
, 142 N.C. App. at 613, 543 S.E.2d at
In the instant case, the trial court determined that
respondent's parental rights should be terminated pursuant to N.C.Gen. Stat. § 7B-1111(a)(7). N.C. Gen. Stat. § 7B-1111(a)(7)
provides that the trial court may terminate a parent's parental
rights if [t]he parent has willfully abandoned the juvenile for at
least six consecutive months immediately preceding the filing of
the petition or motion[.]
We determine that the trial court made findings of fact
supported by clear, cogent, and convincing evidence which support
the conclusion that respondent willfully abandoned A.B.J. for at
least six consecutive months immediately preceding the filing of
the petition. Factual findings that are supported by the evidence
are binding on appeal, even though there may be evidence to the
contrary. In re L.A.B.
, ___ N.C. App. ___, ___, 631 S.E.2d 61, 64
(2006). 'Where no exception is taken to a finding of fact by the
trial court, the finding is presumed to be supported by competent
evidence and is binding on appeal.' Id.
at ___, 631 S.E.2d at 64
(citation omitted). The trial court made unchallenged findings
that from 5 April 2004 to 5 October 2004, respondent made no
attempt to contact or make inquiry regarding [A.B.J.]. Further,
the trial court found that although incarcerated, Respondent was
able to make telephone calls and use the mail. These findings
support the conclusion that respondent willfully abandoned A.B.J.
for at least six consecutive months immediately preceding the
filing of the petition.
After having determined that a ground existed to terminate
respondent's parental rights, we need to address respondent's
contention that the trial court erred by concluding that it was inthe best interests of A.B.J. to have respondent's parental rights
terminated. [U]pon a finding that grounds exist to authorize
termination, the trial court is never required to terminate
parental rights under any circumstances, but is merely given the
discretion to do so. In re Tyson
, 76 N.C. App. 411, 419, 333
S.E.2d 554, 559 (1985). The trial court has discretion to
terminate parental rights if it finds termination would be in the
best interest of the juvenile. In re M.N.C.
, ___ N.C. App. ___,
___, 625 S.E.2d 627, 633 (2006). The standard for appellate review
of the trial court's decision to terminate parental rights is abuse
of discretion. Id.
at ___, 625 S.E.2d at 633.
In the instant case, there was no abuse of discretion by the
trial court. An uncontested finding of fact by the trial court
states that there had been only three attempts at communication by
respondent since 16 December 2002. Further, the trial court found,
and it is uncontested, that the guardian ad litem appointed to
represent the best interests of A.B.J. recommended that
respondent's parental rights be terminated after doing an
investigation of the facts, including interviewing petitioner and
her husband, reviewing respondent's criminal record, and listening
to all testimony at the hearing. Therefore, we disagree with
Accordingly, the trial court did not err in terminating the
parental rights of respondent.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
We note that although the trial court's Finding of Fact 12
states that respondent was granted custody of A.B.J., this was a
typographical error by the trial court because the custody order
in the record states that custody was awarded to petitioner.
*** Converted from WordPerfect ***