IN RE: J.I.K., Lenoir County
A Minor Juvenile. No. 05 JT 68
Lisa Skinner Lefler, for respondent-appellant.
Annette W. Strickland, for petitioner-appellee.
George Jenkins, Jr., for Guardian ad Litem.
LEVINSON, Judge.
Respondent father appeals from an order of the district court
terminating his parental rights to J.I.K. We affirm.
In March 2003, respondent and petitioner mother began a
relationship lasting approximately one year during which the minor
child, J.I.K., was conceived. In February 2004, while petitioner
was still pregnant with J.I.K., respondent was incarcerated on a
charge of second degree burglary. Respondent remained incarcerated
until his conviction on 5 May 2004 for which he received a sentence
of two years, nine months.
Approximately two months after respondent's incarceration,
petitioner mother gave birth to J.I.K. Since birth, J.I.K. has
resided exclusively with petitioner and her parents. On 20 May
2005, petitioner filed a verified petition to terminaterespondent's parental rights; this petition was amended on 16
September 2005.
Respondent admits that he never married petitioner and that he
“has not established paternity of the minor child judicially or by
affidavit or otherwise legitimated the child.” Moreover,
respondent testified that he never “signed any papers” to establish
that he was J.I.K.'s father. And the trial court admitted a letter
offered by petitioner's counsel from the Vital Records Unit of the
N.C. Department of Health and Human Services (“DHHS”), stating that
it had not received “notification of any paternity action regarding
[J.I.K.].”
On appeal, respondent contends that the trial court erred when
it concluded as a matter of law that grounds existed for the
termination of his parental rights because it is not supported by
sufficient evidence. Specifically, respondent asserts that he did
not understand that he needed to officially establish paternity,
and that doing so from prison would have been difficult. Further,
respondent argues that the trial court should have taken into
account that he had been incarcerated the entire life of the child
at the time the petition was filed, limiting his ability to provide
care and financial support to J.I.K.
Initially, we note that respondent has failed to provide any
legal support for his assertion that his lack of understanding
about the need to legitimate J.I.K. should mitigate the
consequences of his failure to do so. As respondent concedes in
his brief, his lack of knowledge of the law will not provide himwith sufficient excuse. This Court has previously held that where
a party is able to read and write and is not otherwise under a
mental disability, they “may not show excusable neglect by merely
establishing that she failed to obtain an attorney and was ignorant
of the judicial process.” In re Hall, 89 N.C. App. 685, 688, 366
S.E.2d 882, 885 (1988) (holding that mother was not entitled to
relief from termination of her parental rights after failing to
answer the petition or appear at termination hearing). Further,
respondent's testimony indicates that petitioner had raised the
possibility of terminating his parental rights and that he told
petitioner he would be willing to discuss this with her when he was
released from prison. Consequently, respondent was at least on
notice that his parental rights could be subject to challenge and
he could have taken actions to secure those rights.
The trial court terminated respondent's parental rights due to
his failure to legitimate J.I.K. as specified in N.C. Gen. Stat. §
7B-1111(a)(5) (2005). This statutory ground for termination
requires the trial court to find that, prior to the filing of the
termination petition, a putative father has not:
a. Established paternity judicially or by
affidavit which has been filed in a central
registry maintained by the Department of
Health and Human Services; provided, the court
shall inquire of the Department of Health and
Human Services as to whether such an affidavit
has been so filed and shall incorporate into
the case record the Department's certified
reply; or
b. Legitimated the juvenile pursuant to
provisions of G.S. 49-10 or filed a petition
for this specific purpose; or
c. Legitimated the juvenile by marriage to the
mother of the juvenile; or
d. Provided substantial financial support or
consistent care with respect to the juvenile
and mother.
G.S. § 7B-1111(a)(5). To support the termination of a putative
father's parental rights under this provision, a petitioner must
prove by clear, cogent, and convincing evidence that the respondent
has failed to take any of the four actions listed. In re I.S., 170
N.C. App. 78, 88, 611 S.E.2d 467, 473 (2005). Moreover, the trial
court must enter specific findings of fact concerning each of these
actions. Id.
We conclude that the trial court made the requisite specific
findings as to the factors enumerated in G.S. § 7B-1111(a)(5).
Respondent does not contend that he satisfied any of the first
three statutory methods of legitimating J.I.K., and respondent
admitted in his answer or in testimony that he never married
petitioner and that he has not taken steps to legally or judicially
establish his paternity of J.I.K. In addition, the evidence
supports the trial court's determination that respondent had not
“provided substantial support or consistent care with respect to
the juvenile and mother.” Specifically, the trial court found
that, prior to his incarceration in February of 2004, respondent
was not involved in the pregnancy and, despite knowing that
petitioner was pregnant with their child, he developed a drug habit
and committed criminal offenses. Following his incarceration,
respondent's attempts to contact petitioner during her pregnancy
were limited to collect phone calls and some letters before andimmediately after J.I.K.'s birth. When petitioner did not respond
to respondent's letters, he made no further attempts to contact
her.
There is also evidence in the record that supports the trial
court's finding that respondent failed to provide “substantial
support.” Respondent received a little over $1.00 per week for his
work while incarcerated. He received additional money from family
members, including up to $40.00 per week from his mother and/or
grandmother. Respondent used these funds solely for his personal
expenses and did not send any of it to petitioner for J.I.K. Other
than telling petitioner that she could contact his mother for
financial assistance if she needed it, respondent did not take
meaningful steps to provide financial support to J.I.K.
Notwithstanding respondent's explanations for the failure to get
money to petitioner, this Court's review is limited to whether
there is evidence in the record to support the findings of the
trial court.
With respect to respondent's assertion that his incarceration
affected his ability to legitimate J.I.K. or to provide financial
support or consistent care, this Court has previously established
that incarceration “is not an excuse for respondent's failure to
show 'interest in the children's welfare by whatever means
available.' A father's neglect of his child cannot be negated by
incarceration alone.” In re D.J.D., D.M.D., S.J.D., J.M.D., 171
N.C. App. 230, 240, 615 S.E.2d 26, 33 (2005) (quoting In reHendren, 156 N.C. App. 364, 368, 576 S.E.2d 372, 376 (2003))
(citation omitted).
Respondent had means available to him during his
incarceration, i.e., to file an affidavit of paternity with the
Department of Health and Human Resources. Though respondent claims
he lacked the means or ability to take such action while
incarcerated, we disagree. The evidence shows that respondent
routinely corresponded by mail and he had sufficient funds
available to pursue the filing of an affidavit. This evidence is
sufficient to demonstrate his ability to establish paternity
despite his incarceration. See In re I.S., 170 N.C. App. at 88,
611 S.E.2d at 474 (holding that wages earned by inmate sufficient
to purchase postage and writing materials demonstrated putative
father's ability to legitimate child).
Because this Court concludes that the trial court's findings
of fact are sufficient to demonstrate respondent's failure to
legitimate J.I.K. under G.S. § 7B-1111(a)(5), his assignment of
error is overruled.
Finally, we address respondent's contention that the trial
court abused its discretion in terminating respondent's parental
rights. Once statutory grounds for termination have been
established, the trial court is required to “further determine that
the best interests of the juvenile require that the parental rights
of the parent not be terminated.” N.C. Gen. Stat. § 7B-1110(a)
(2003). The standard for appellate review of the trial court's
decision to terminate parental rights is abuse of discretion. SeeIn re Brim, 139 N.C. App. 733, 745, 535 S.E.2d 367, 374 (2000). As
to whether termination was in J.I.K.'s best interests, the trial
court found:
30. That it is in the best interest and
welfare of the minor child for the Court to
terminate the parental rights of the
Respondent in that the Respondent has failed
to develop any relationship whatsoever with
the minor child in the two years since his
birth; has provided no financial support for
the child, has engaged in criminal activity
including drug use leading to his
incarceration and unavailability for the
child, and that the child has not maintained
or developed a relationship with the
Respondent father's extended family.
Based on our review of the evidence in this case, we hold that
the trial court's findings are supported by clear, cogent, and
convincing evidence, and we discern no abuse of discretion in the
trial court's decision to terminate respondent's parental rights to
J.I.K. The order of the trial court is affirmed.
The record on appeal contains additional assignments of error
not addressed by respondent in his appellant's brief. By rule, we
deem these to be abandoned. N.C.R. App. P. 28(b)(6).
No error.
Chief Judge MARTIN and Judge McCullough concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***