An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-606

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007

IN THE MATTER OF:
    B.R.H.                    Johnston County
                            No. 05 J 94

    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
    Initials have been used throughout to protect the identity of the juvenile.

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