IN THE MATTER OF: New Hanover County
B.C.T. No. 04 J 327
New Hanover County Department of Social Services, by Dean
Hollandsworth, for petitioner-appellee.
Sofie Hosford, for respondent-appellant father.
Parker, Poe, Adams & Bernstein L.L.P., by Benjamin Sullivan,
for Guardian ad Litem.
LEVINSON, Judge.
Respondent-father appeals from an order terminating his
parental rights in the minor child, B.C.T. We affirm.
The pertinent facts may be summarized as follows: B.C.T. was
born on 22 July 1995. On 22 August 1999, B.C.T. was taken into
custody by the New Hanover County Department of Social Services
(DSS) because his mother was arrested for using drugs in B.C.T.'s
presence.
Father first appeared for a permanency planning review hearing
concerning B.C.T. on 6 April 2000. Originally, DSS pursued efforts
to reunify B.C.T. with father, as he agreed to participate in
certain court-ordered programs such as an anger management and
parenting courses. Father began unsupervised visitations withB.C.T. in November 2002. In January 2003, during an unsupervised
visit with B.C.T., father spanked B.C.T. because, as father
explained, the child was “back talking me, and I popped him on his
tail.” Mary Beth Rubright, the DSS worker assigned to B.C.T.'s
case, opined that father had spanked B.C.T. because he “lost his
temper.”
B.C.T. is a “special needs child” who has been diagnosed with
the following conditions: attention deficit hyperactivity disorder,
oppositional defiant disorder, encopresis, and enuresis. B.C.T.
has also been classified as “emotionally disabled.” Accordingly,
B.C.T. receives psychiatric counseling and medication. During a
January 2003 conversation with B.C.T.'s social worker, father
concluded that he “could not deal with [B.C.T.'s] behavior at this
time.” Soon thereafter, Rubright suspended father's visitations
and explained that future visits with B.C.T. would need to occur in
family therapy and that it was father's responsibility to initiate
such family sessions. After consultation with father's therapist,
DSS concluded that he needed individual counseling before he would
be “stable” enough for family therapy with B.C.T. After being told
in January 2003 that he would need to pursue therapy to have
further visits with B.C.T., father discontinued therapy and, on 2
March 2003, was incarcerated for a domestic violence charge
stemming from December of 2002. He was released on 28 June 2003,
but incarcerated again on 12 July 2003 on charges of violating a
domestic violence protective order, breaking and entering, and
damage to property. Father was released from a prison sentence on27 November 2003. He had no additional contact with DSS until
January 2004, at which time B.C.T.'s social worker reminded father
that he could not resume visits with B.C.T. until he obtained
counseling. Although father resumed counseling after the petition
to terminate his parental rights was filed, his last pre-petition
counseling session occurred in January 2003.
DSS filed a petition to terminate father's parental rights on
20 July 2005. Father testified that he had been married for six
months and had worked at a towing company for the same duration of
time. Father further testified that he had attended two
psychological counseling sessions after being served with the
petition to terminate his parental rights. He also stated that he
last visited with B.C.T. in January of 2003, two years and nine
months before the hearing. Additionally, father confirmed that he
had been incarcerated twice, and that he had “popped [B.C.T.] on
his tail” during an unsupervised visit. He attempted to contact
B.C.T. after he was released from prison in November of 2003, but
was told by DSS that he could not have contact with the minor.
When asked, “[s]o, you're not stabilized in your counseling which
was recommenced back in 2001,” father answered, “Yeah.” Father
stated he discontinued therapy because “he didn't have the money to
go.”
DSS worker Mary Rubright testified that, between March 2004
and July 2005, father did not attempt to contact DSS to inquire
about B.C.T.'s welfare or to explore pursuing reunification with
the child. Rubright explained that while DSS attempted to contactfather after he ended contact in March 2004, DSS was unable to
reach him using the contact information he had provided. Rubright
further testified that after visitations were suspended in January
2003, father did not send any cards, gifts, letters, or other
correspondence to B.C.T. after November 2003. While father
attended anger management and parenting classes, Rubright noted
that “when it came time to . . . put what he had learned to the
test through unsupervised visits, it fell apart.”
In its order of 7 November 2005, the trial court found two
grounds for terminating father's parental rights: (1) willfully
abandoning B.C.T. for at least six months before the petition was
filed, and (2) willfully leaving B.C.T. in foster care for at least
12 months without making reasonable progress in correcting the
conditions that caused his removal. The trial court concluded that
terminating father's parental rights would be in B.C.T.'s best
interests. From this order, father now appeals.
On appeal, father first contends that the trial court erred in
concluding that he willfully abandoned B.C.T. pursuant to N.C. Gen.
Stat. § 7B-1111(a)(7) (2005). We disagree.
A court's termination of parental rights is a two-step
process: there is an adjudicatory stage to the proceeding under
N.C. Gen. Stat. 7B-1109 (2005), and a dispositional stage under
N.C. Gen. Stat. 7B-1110 (2005). In re Howell, 161 N.C. App. 650,
656, 589 S.E.2d 157, 160-61 (2003). During the adjudication stage,
the trial court determines whether clear, cogent, and convincing
evidence exists to support at least one of the grounds fortermination under G.S. § 7B-1111. In re Shepard, 162 N.C. App.
215, 221, 591 S.E.2d 1, 5 (2004) (citations omitted). Where such
evidence is present, the court moves to the dispositional stage,
and it considers whether terminating parental rights would be in
the best interest of the child. Howell, 161 N.C. App. at 656, 589
S.E.2d at 161 (citation omitted). This Court has described the
standard of review for termination of parental rights cases as:
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.
Shepard at 221-22, 591 S.E.2d at 6 (internal quotation marks
omitted).
The trial court may terminate a respondent's parental rights
upon a finding that he or she “has willfully abandoned the juvenile
for at least six consecutive months immediately preceding the
filing of the petition or motion [.]” G.S. § 7B-1111(a)(7). Under
this statute, the trial court must evaluate a respondent's behavior
in the six months before the petition for termination of parental
rights was filed. See In re Young, 346 N.C. 244, 251, 485 S.E.2d
612, 617 (1997) (“since the petition for terminating respondent's
parental rights was filed on 6 May 1994, respondent's behavior
between 6 November 1993 and 6 May 1994 is determinative”). In the
instant case the petition was filed 18 July 2005, making father's
actions between 18 January 2005 and 18 July 2005 dispositive. “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.” In re Adoption of
Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986).
“Abandonment has been defined as 'wilful neglect and refusal to
perform the natural and legal obligations of parental care and
support . . . . [I]f a parent withholds his presence, his love,
his care, the opportunity to display filial affection, and wilfully
neglects to lend support and maintenance, such parent relinquishes
all parental claims and abandons the child.'” In re Humphrey, 156
N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003)(quoting Pratt v.
Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)). This Court
has held that the existence of practical barriers to a respondent's
involvement with his child will not excuse the respondent's failure
to do what he could under the circumstances. See In re Graham, 63
N.C. App. 146, 151, 303 S.E.2d 624, 627 (1983) ( “The fact that the
respondent was incarcerated . . . does not provide any
justification for his all but total failure to communicate with or
even inquire about his children.”).
In the instant case, the trial court made findings of fact
including, in pertinent part, the following:
13. The Respondent-Father stated that the
reason he did not attempt to visit with his
child since January of 2003, a period of
approximately two years and nine months, was
that his former girlfriend, Susan Carroll said
that he could not. He did not inquire of the
social worker as to his ability to obtain
visitation and his last contact with her prior
to the telephone calls in 2005 was in March of
2004. The Court finds this explanation to beinadequate to account for the lack of
visitation in this matter.
. . . .
16. The Respondent-Father willfully abandoned
the child for a period in excess of six
consecutive months immediately preceding the
filing of the Petition in this matter. His
last visit with the child came in January of
2003, a period of approximately two years and
nine months to the date of this hearing. He
has not adequately explained the reason for
his failure to seek visitation during that
time period or why he last called about this
case in March of 2004 until prompted by
service of process in this matter to inquire
of the social worker as to how to resume
reunification efforts in July of 2005,
subsequent to the filing of the Petition to
Terminate Parental Rights. He had not sent
cards, letters, presents or other
correspondence to the child during the six
months prior to the filing of the Petition,
nor did he inquire of the social worker as to
his son's welfare during that time period.
Here, father has not challenged the trial court's specific
findings of fact. The findings are therefore presumed to be
supported by competent evidence, and they are binding on appeal.
In re Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
We are therefore left to determine whether the trial court's
factual findings support its conclusions of law. We conclude the
trial court's conclusion that father abandoned B.C.T. is supported
by its findings of fact as set forth above. Accordingly, we hold
that the trial court did not err by concluding that father
willfully abandoned B.C.T. for a period in excess of six
consecutive months immediately preceding the filing of the
petition. In addition, as only one ground is needed to support
termination of parental rights, it is not necessary for us toconsider the other ground upon which the trial court terminated
father's parental rights. In re Stewart Children, 82 N.C. App.
651, 655, 347 S.E.2d 495, 498 (1986). This assignment of error is
overruled.
Father next contends that the trial court abused its
discretion by concluding that it was in B.C.T.'s best interests to
terminate his parental rights. We disagree.
N.C. Gen. Stat. § 7B-1110(a) (2003) provides, in relevant
part, that:
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.
We review the trial court's conclusion that a termination of
parental rights would be in the best interest of the child on an
abuse of discretion standard. In Re V.L.B., 168 N.C. App. 679,
684, 608 S.E.2d 787, 791, disc. review denied, 359 N.C. 633, 614
S.E.2d 924 (2005). “Abuse of discretion exists when 'the
challenged actions are manifestly unsupported by reason.'” Barnes
v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004)
(quoting Blankenship v. Town and Country Ford, Inc., 155 N.C. App.
161, 165, 574 S.E.2d 132, 134 (2002)).
Here, the findings illustrate significant parenting
deficiencies on the part of father, who had last visited with
B.C.T. two years and nine months before the hearing to terminateparental rights. We conclude the trial court did not abuse its
discretion by concluding that terminating father's parental rights
was in the best interests of B.C.T. This assignment of error is
overruled.
Affirmed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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