IN THE MATTER OF:
Union County
No. 05-J-21
A.D.C.
A MINOR CHILD
Dale Ann Plyler for petitioner-appellee.
M. Victoria Jayne for respondent-appellant.
MARTIN, Chief Judge.
Respondent, the mother of the minor child A.D.C. (hereinafter
“the child”) born 13 March 2004, appeals from an order terminating
her parental rights. The Union County District Court awarded
legal custody of the child to the Union County Department of Social
Services (hereinafter “DSS”) on 2 July 2004. The DSS filed a
petition to terminate respondent's parental rights on 2 February
2005 and an amended petition on 29 June 2005. As grounds for
terminating respondent's rights, petitioner alleged that (1)
respondent neglected the child by abandoning her and withdrawing
all parental love and affection from the children and by foregoing
all parental responsibilities to the child; (2) respondent for a
continuous period of six months next preceding the filing of thepetition failed to pay a reasonable portion of the cost of care for
the child although physically and financially able to do so; and
(3) respondent is incapable of providing for the proper care and
supervision of the child such that the child is a dependent
juvenile and there is a reasonable probability that such
incapability will continue for the foreseeable future. The court
conducted a hearing on the petition on 18 January 2006.
Respondent, represented by counsel, appeared at the hearing and
testified. At the conclusion of the hearing, the court entered an
order finding and concluding that petitioner proved by clear,
cogent and convincing evidence the grounds alleged for termination
of respondent's parental rights.
The order terminating respondent's parental rights contains
the following pertinent findings of fact to which respondent has
assigned error:
11. [Respondent] did willfully abandon the
minor child at least six months preceding the
filing of this action, in that her whereabouts
were unknown at key times before the filing of
the action.
12. That contact by [respondent] with the
child has been sporadic, at best.
13. That [respondent] has not sent cards,
gifts, or made regular efforts to have contact
with the child since the child was placed in
the custody of Union County Department of
Social Services.
14. That [respondent] has abandoned the child
allowing the child to remain in the care of
her grandmother, [S.C.], without making
efforts to reunify with her child.
15. That [respondent] would only make her
whereabouts known for two to three weeks at atime and then would be gone for three to four
months. This pattern has been consistent from
the time of the child's birth until the date
of this hearing.
16. That [respondent] was employed at one
time by Ricky Sanders, cleaning offices. She
did this for one to one and a half months for
two to three hours per day. [Respondent]
earned an income while working for Mr.
Sanders.
17. [Respondent] has been employed while
incarcerated at the Women's Prison in Raleigh,
North Carolina. That she has worked since
December 2005 earning approximately $2.40 per
week.
18. At no time has [respondent] paid any
child support for the use and benefit of the
minor child while the child has been in the
custody of the Union County Department of
Social Services.
19. The juvenile has been placed in the
custody of the Union County Department of
Social Services, a licensed child-placing
agency, and [respondent], for a continuous
period of six months next preceding the filing
of this petition, has willfully failed for
such period to pay a reasonable portion of the
cost of care for the juvenile, although
physically and financially able to do so.
...
21. [Respondent] has had the means and ability
to pay child support while working for Ricky
Sanders and she paid no child support.
22. [Respondent] has asked about the welfare
of the child on a sporadic basis, however,
these inquiries are insistently [sic] coupled
with her request from her mother for money.
....
25. [Respondent] is currently in prison for
probation violation due to her substance
abuse, which renders her unable to provide for
the child's care pursuant to N.C. G.S. § 7B-
1111-6.
26. [Respondent] is incapable of providing for
the proper care and supervision of the
juvenile, such that the juvenile is a
dependent juvenile within the meaning of G.S.
7B-101, and that there is a reasonable
probability that such incapability will
continue for the foreseeable future.
27. [Respondent] has neglected the child.
The court concluded that termination of respondent's parental
rights is in the child's best interest.
Respondent brings forward two assignments of error.
First, she contends the petition should have been dismissed
because it fails to comply with the requirements of N.C. Gen. Stat.
§ 7B-1104(6) (2005), which requires a petition to state facts “that
are sufficient to warrant a determination that one or more of the
grounds for terminating parental rights exist.”
Termination of
parental rights proceedings are governed by the Rules of Civil
Procedure. In re McKinney, 158 N.C. App. 441, 444-45, 581 S.E.2d
793, 795 (2003). The proper procedure to challenge the sufficiency
of the allegations of a petition to terminate parental rights is by
a motion pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure. See In re Hardesty, 150 N.C. App. 380, 383, 563
S.E.2d 79, 82 (2002). A motion to dismiss for failure to state a
claim must be raised in the trial court and may not be raised for
the first time on appeal. Collyer v. Bell, 12 N.C. App. 653, 655,
184 S.E.2d 414, 416 (1971). Moreover, the Rules of Appellate
Procedure provide in pertinent part that “[i]n order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating thespecific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context.” N.C.
R. App. P. 10(b)(1) (2006). Respondent never made a motion to
dismiss the petition or otherwise raised the issue in the court
below. This assignment of error is therefore dismissed.
Second, respondent contends the findings of fact are not
supported by sufficient evidence. One's parental rights may be
terminated only if the existence of a statutory ground permitting
such termination is proved by clear, cogent and convincing
evidence. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614
(1997). As the trier of fact in a termination of parental rights
proceeding, the trial judge determines the credibility and weight
to be given the evidence received at the hearing and makes findings
of fact accordingly. In re Oghenekevebe, 123 N.C. App. 434, 439,
473 S.E.2d 393, 397 (1996). The appellate court reviews the trial
court's order to determine whether the findings of fact are
supported by clear, cogent and convincing evidence and whether the
conclusions of law are supported by the findings of fact. In re
Allred, 122 N.C. App. 561, 565, 471 S.E.2d 84, 86 (1996). Findings
that are supported by ample, competent evidence are binding on
appeal even though there may be evidence to the contrary. In re
Montgomery, 311 N.C. 101, 112-13, 316 S.E.2d 246, 253-54 (1984).
A single ground is all that is required for a court to terminate
parental rights. In re Shermer, 156 N.C. App. 281, 285, 576 S.E.2d
403, 406-07 (2003).
Karen Crowder, a social worker assigned to the case by theDSS, testified that the child has been in the custody of the DSS
since 2 July 2004 and that the child had been placed with the
child's maternal grandmother since 6 July 2004. Since the time she
took over the case in April of 2005, respondent has not contacted
her to inquire about the welfare of the child. When respondent
appeared for a court hearing in November of 2005, she did ask to
see the child but she offered no reason for not contacting Ms.
Crowder concerning the child. Respondent has not purchased any
gifts for the child, and to Ms. Crowder's knowledge, has not sent
the child any birthday cards or Christmas gifts. Respondent has
not paid any money for the use and support of the child. During
the two times respondent visited with the child during court
hearings, the child would shy away from respondent.
The child's maternal grandmother testified that the child has
lived with her since the DSS assumed custody of the child. During
the time the child has been placed with her, respondent has been in
and out of jail. Respondent did not call and ask about the welfare
of the child unless respondent needed something, such as money or
shelter. Respondent would stay with her mother for one or two
weeks and disappear for months at a time. The maternal
grandmother has never received a gift or money for the child from
respondent. She acknowledged that she did receive a card directed
to the child by respondent on two or three occasions.
Respondent testified that she loves the child. She testified
that she gave the child gifts, wrote letters and cards to the
child, purchased diapers and food for the child, and gave moneydirectly to the child. She acknowledged that she has a history of
substance abuse and incarcerations. She also acknowledged that she
had a job cleaning offices for Ricky Sanders and that she made no
child support payments.
We conclude that the court's findings of fact are supported by
clear, cogent and convincing evidence. Respondent's testimony
created a conflict in the evidence for the court to resolve. Even
if respondent had mailed cards and purchased gifts, this evidence
does not negate a conclusion that the child has been neglected.
“[T]he fact that the parent loves or is concerned about his child
will not necessarily prevent the court from making a determination
that the child is neglected.” In re Montgomery, 311 N.C. at 109,
316 S.E.2d at 252.
The order is
Affirmed.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).
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