Appeal by respondent from an order entered 22 November 2005 by
Judge Albert A. Corbett, Jr. in Johnston County District Court.
Heard in the Court of Appeals 6 December 2006.
J. Franklin Wood, Jr. for petitioner-appellee.
Winifred H. Dillon for respondent-appellant.
BRYANT, Judge.
D.R.H.
(See footnote 1)
(respondent-father) appeals from an order entered 22
November 2005 terminating his parental rights to his minor child,
B.R.H. For the reasons below, we affirm the order of the trial
court.
Facts and Procedural History
J.H.G (petitioner-mother) and respondent were married in
November 1997 and B.R.H. was born to the couple in February 1999.
Petitioner and respondent separated in June 2000 and were divorced
in April 2002. A permanent custody order giving sole custody to
petitioner and allowing supervised visitation for respondent was
entered 13 March 2002. On 29 March 2003 respondent sexually assaulted petitioner in
her home. Respondent pleaded guilty on 9 September 2003 to the
charges of Second Degree Sexual Offense, Second Degree Rape, and
Second Degree Kidnapping and was sentenced to a term of 80 to 105
months imprisonment. Petitioner obtained an
Ex Parte Domestic
Violence Protective Order against respondent on 31 March 2003,
which was converted to a permanent order effective for one year on
8 April 2003. After the expiration of the permanent order,
respondent sent petitioner several threatening letters, and
petitioner obtained another Domestic Violence Protective Order on
10 August 2004, which was renewed for one year on 5 August 2005.
On 5 May 2005, petitioner filed a petition to terminate
respondent's parental rights as to his minor child B.R.H. The
petition alleged that respondent had neglected B.R.H., had failed
to pay child support pursuant to a valid child support order, was
incapable of providing care for B.R.H. such that B.R.H is a
dependent child, and had abandoned B.R.H. This matter was heard on
12 October 2005 during the Juvenile Court Session of the District
Court for Johnston County before the Honorable Albert A. Corbett,
Jr., Judge Presiding. On 22 November 2005 the trial court entered
an order terminating respondent's parental rights as to B.R.H.
Respondent appeals.
_________________________
Respondent raises two issues on appeal: (I) whether the trial
court's findings of fact are supported by clear, cogent andconvincing evidence; and (II) whether the trial court's conclusions
of law are supported by its findings of fact.
I
Respondent first argues five findings of fact set out in the
trial court's order terminating his parental rights to B.R.H. are
not supported by “clear, cogent and convincing competent evidence.”
We disagree.
“When reviewing an appeal from an order terminating parental
rights, our standard of review is whether: (1) there is clear,
cogent, and convincing evidence to support the district court's
findings of fact; and (2) the [district court's] findings of fact
support [its] conclusions of law.”
In re A.D.L., 169 N.C. App.
701, 710, 612 S.E.2d 639, 645 (citation omitted),
disc. review
denied, 359 N.C. 852, 619 S.E.2d 402 (2005). Clear, cogent, and
convincing evidence “is greater than the preponderance of the
evidence standard required in most civil cases, but not as
stringent as the requirement of proof beyond a reasonable doubt
required in criminal cases.”
In re Montgomery, 311 N.C. 101,
109-10, 316 S.E.2d 246, 252 (1984) (citation omitted). “If the
decision is supported by such evidence, the district court's
findings are binding on appeal even if there is evidence to the
contrary.”
In re A.D.L., 169 N.C. App. at 710, 612 S.E.2d at 645
(citation omitted). Further, “[w]here 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.”
In reL.A.B., __ N.C. App. __ , __, 631 S.E.2d 61, 64 (2006) (citation
and quotations omitted).
In the instant case, respondent challenges the following
findings of fact:
11. Respondent has not seen [B.R.H.] since
January 2003.
. . .
15. In the six months immediately preceding
the filing of this action, Respondent had no
contact with the minor child and nobody on his
behalf, including his family and friends,
inquired about the child or his health and
wellbeing. Furthermore, since January, 2003,
the Respondent has not contacted any relatives
of the minor child to inquire about him, nor
contacted the minor child's daycare or school
to inquire about his progress, education or
wellbeing. Finally, since January, 2003, the
only contact respondent has had with the minor
child has been the two mailings addressed to
the child . . ., and nobody on his behalf
including his family and friends, inquired
about the child or his health and wellbeing
until after this petition was filed.
16. In the six months immediately prior to the
hearing in this matter, Respondent had no
contact with the minor child.
17. In the six months prior to his present
incarceration, the respondent saw the minor
child once when he attended the child's soccer
game in January 2003, prior to that the last
visit respondent had with his son was when the
petitioner took the child to Swan Quarter
correction facility to see respondent in the
summer of 2002.
. . .
25. The juvenile has no present relationship
with [respondent] as a result of Respondent's
repeated incarcerations.
Respondent argues findings of facts numbered eleven, fifteen,
and twenty-five are not supported by clear, cogent, and convincing
evidence because the evidence establishes that he last saw B.R.H.
in March of 2003 and he has been in continuous custody and subject
to almost continuous protective orders which prohibit any contact
by him with petitioner or B.R.H. Respondent further contends the
only evidence supporting finding of fact number seventeen is
petitioner's conflicting testimony which does not meet the standard
of clear, cogent, and convincing evidence.
In proceedings to terminate parental rights, “the trial judge
acts as both judge and jury, thus resolving any conflicts in the
evidence.”
In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d
393, 397 (1996) (citation omitted).
[W]hen a trial judge sits as “both judge and
juror,” as he or she does in a non-jury
proceeding, it is that judge's duty to weigh
and consider all competent evidence, and pass
upon the credibility of the witnesses, the
weight to be given their testimony and the
reasonable inferences to be drawn therefrom.
In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984)
(citation omitted). While there is conflicting testimony as to
whether respondent's last contact with B.R.H. was in January or
March of 2003, after reviewing the record and transcript in this
case, we find sufficient evidence was presented to support the
trial court's findings of fact that respondent last saw B.R.H. in
January of 2003.
Respondent further argues that he was precluded from
contacting B.R.H. due to two domestic violence protective orders. The first protective order expired on 8 April 2004 and respondent
waited until 6 July 2004 to initiate any contact with B.R.H.,
sending him one abstract drawing. Respondent also sent several
pieces of correspondence to petitioner in July 2004 of a
threatening nature. This correspondence led petitioner to obtain
another domestic violence protective order on 10 August 2005.
Therefore, while domestic violence protective orders have been in
place preventing respondent from contacting B.R.H. since 10 August
2004, these orders were entered due to the violent actions of
respondent toward petitioner and he cannot use the orders to excuse
his lack of contact and support for B.R.H. Additionally,
respondent could have sought contact with B.R.H. through other
avenues, but did not. Respondent only sought visitation or contact
with B.R.H. through the courts after the filing of the petition to
terminate parental rights at issue, and did not contact the school
B.R.H. attends to inquire about his progress. The trial court's
findings regarding respondent's lack of contact with and lack of
inquiry regarding the health and welfare of his minor child are
based on clear, cogent and convincing evidence. These assignments
of error are overruled.
II
Respondent next argues the trial court's conclusions of law
that grounds exist to terminate his parental rights are not
supported by the trial court's findings of fact. We disagree.
In its order terminating respondent's parental rights to
B.R.H., the trial court found: 20. Respondent has wilfully failed without
justification to pay any funds for the care,
support and education of the child since [sic]
for a period of one year or more prior to his
initial incarceration on or about April 30,
2002.
21. Respondent has wilfully failed without
justification to pay any funds for the care,
support and education of the child for a
period of one year or more next preceding the
filing of this action.
. . .
23. [Respondent] has neglected the juvenile
within the meaning of N.C.G.S. . 7B-101.
24. [Respondent] has wilfully abandoned the
child for at least six consecutive months
immediately preceding the filing of the
petition.
Because these findings “requir[e] the exercise of judgment or the
application of legal principles [they are] more properly classified
a[s] conclusion[s] of law.”
In re Helms, 127 N.C. App. 505, 510,
491 S.E.2d 672, 675 (1997) (internal citations omitted). The trial
court further concluded that “[g]rounds exist for terminating the
parental rights of the Respondent with respect to [B.R.H.] as set
forth in the above findings of fact.”
Respondent concedes that the conclusions of law stated in the
trial court's designated findings of fact numbered twenty, twenty
-one, twenty-three and twenty-four correspond to the grounds for
termination of parental rights designated in N.C. Gen. Stat. .. 7B-
1111(a)(1), (2) and (7). Article 11 of Chapter 7B of the North
Carolina General Statutes provides that:
The court may terminate the parental rights
upon a finding of one or more of the
following:
(1) The parent has abused or neglected the
juvenile. The juvenile shall be deemed to be
abused or neglected if the court finds the
juvenile to be an abused juvenile within the
meaning of G.S. 7B-101 or a neglected juvenile
within the meaning of G.S. 7B-101.
. . .
(4) One parent has been awarded custody of the
juvenile by judicial decree or has custody by
agreement of the parents, and the other parent
whose parental rights are sought to be
terminated has for a period of one year or
more next preceding the filing of the petition
or motion willfully failed without
justification to pay for the care, support,
and education of the juvenile, as required by
said decree or custody agreement.
. . .
(7) The parent has willfully abandoned the
juvenile for at least six consecutive months
immediately preceding the filing of the
petition or motion . . . .
N.C. Gen. Stat. . 7B-1111(a) (2005).
To prove neglect in a termination of parental rights
proceeding, “there must be clear, cogent, and convincing evidence
(1) the juvenile is neglected within the meaning of N.C.G.S.
7B-101(15), and (2) the juvenile has sustained some physical,
mental, or emotional impairment . . . or there is a substantial
risk of such impairment as a consequence of the neglect.”
In re
Beasley, 147 N.C. App. 399, 403, 555 S.E.2d 643, 646 (2001)
(citation and internal quotations omitted). A neglected juvenile
under N.C. Gen. Stat. . 7B-101 is defined in part as a “juvenile
who does not receive proper care, supervision, or discipline from
the juvenile's parent, guardian, custodian, or caretaker; or whohas been abandoned[.]” N.C. Gen. Stat. . 7B-101(15) (2005). This
Court has previously held that:
Where, as here, a child has not been in the
custody of the parent for a significant period
of time prior to the termination hearing, the
trial court must employ a different kind of
analysis to determine whether the evidence
supports a finding of neglect. This is because
requiring the petitioner in such circumstances
to show that the child is currently neglected
by the parent would make termination of
parental rights impossible. The determinative
factors must be the best interests of the
child and the fitness of the parent to care
for the child
at the time of the termination
proceeding. . . . Thus, the trial court must
also consider evidence of changed conditions
in light of the history of neglect by the
parent and the probability of a repetition of
neglect. In addition, visitation by the
parent is a relevant factor in such cases.
In re Shermer, 156 N.C. App. 281, 286-87, 576 S.E.2d 403, 407
(2003) (internal citations and quotations omitted). Additionally,
a parent's incarceration may be considered in determining whether
a minor child is in a state of neglect due to that parent's
inability to provide proper care and supervision for the child.
See In re P.L.P., 173 N.C. App. 1, 10-11, 618 S.E.2d 241, 247
(2005) (trial court found incarcerated father neglected his child
where that father “(1) could have written [the child] but did not
do so; (2) made no efforts to provide anything for the minor child;
(3) has not provided any love, nurturing or support for the minor
child; and (4) would continue to neglect the minor child if the
child was placed in his care.”);
In re Bradshaw, 160 N.C. App. 677,
682, 587 S.E.2d 83, 86 (2003) (trial court found incarcerated
father neglected his child where that father “neither providedsupport for the minor child nor sought any personal contact with or
attempted to convey love and affection for the minor child.”).
Here, the trial court's conclusion that respondent has
neglected B.R.H. within the meaning of N.C.G.S. . 7B-101 is
supported by the findings of fact discussed in
Issue I,
supra, and
the following unchallenged findings of fact:
3. [Respondent] is presently incarcerated in
Pasquotank Correctional Facility in Pasquotank
County, North Carolina, and has a projected
release date of March 28, 2011.
. . .
10. The respondent has a history of drug use,
including crack cocaine, ecstacy and crystal
meth.
. . .
12. Respondent has been incarcerated on two
separate occasions since the birth of
[B.R.H.].
. . .
18. Since his incarceration in March 2003,
Respondent regularly corresponded with his
mother and friends.
19. During his incarceration respondent's
mother sent him approximately $50 each month.
Further evidence in the record before this Court supports the
trial court's findings of fact as to respondent's neglect of the
minor child. Respondent has not offered any financial support for
B.R.H. since his incarceration, even though he was receiving $30 to
$50 “every month or so” from his mother. Additionally, there was
evidence through the testimony of petitioner's mother that B.R.H.
was not outgoing and lacked confidence, which has only been offsetby the care and attention of his new step-father. Clear, cogent,
and convincing evidence in the record before this Court supports
the trial court's findings of fact, which in turn support its
conclusion of law that respondent has neglected B.R.H.
Because the record before this Court supports the trial
court's conclusion that respondent neglected B.R.H., we decline to
address respondent's remaining arguments regarding other statutory
grounds for termination of parental rights. N.C.G.S. § 7B-1111(a)
(2005);
In re Clark, 159 N.C. App. 75, 78 n.3, 582 S.E.2d 657, 659
n.3 (2003) (Where the trial court finds multiple grounds on which
to base a termination of parental rights, and “an appellate court
determines there is at least one ground to support a conclusion
that parental rights should be terminated, it is unnecessary to
address the remaining grounds.”). These assignments of error are
overruled.
Affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1