Appeal by Respondent from order entered 25 August 2006 by
Judge David K. Fox in District Court, Henderson County. Heard in
the Court of Appeals 17 January 2007.
Carol Ann Bauer for Respondent-Appellant.
Law Office of Frank Jackson, by James Lamar Palmer, for
Petitioner-Appellee.
McGEE, Judge.
Petitioner is the biological mother of D.O.A., a minor child,
and Respondent is D.O.A.'s biological father. Petitioner filed a
petition on 2 June 2006 to terminate Respondent's parental rights
to D.O.A. Petitioner alleged, inter alia, that Respondent (1)
willfully neglected D.O.A within the meaning of N.C. Gen. Stat. §
7B-1111(a)(1), and (2) failed to legitimate D.O.A. and "failed to
provide any financial support or consistent care with respect to
[D.O.A.] and [Petitioner], as contemplated by [N.C. Gen. Stat. §]
7B-1111(a)(5)." Respondent filed an answer on 21 June 2006.
Following a hearing, the trial court entered an order on 25
August 2006 terminating Respondent's parental rights. The trialcourt made numerous findings of fact and concluded that Respondent
"willfully neglected [D.O.A.] within the meaning of [N.C. Gen.
Stat.] § 7B-1111(a)(1)." The trial court also concluded that
"Respondent ha[d] failed to legitimate [D.O.A.], and [had] failed
to provide substantial financial support or consistent care with
respect to [D.O.A.] and [Petitioner], as contemplated by [N.C. Gen.
Stat. §] 7B-1111(a)(5), despite having the ability to do so." The
trial court further concluded that "the best interests of [D.O.A.]
would be served by having . . . Respondent's parental rights
terminated[,]" and the trial court ordered that Respondent's
parental rights to D.O.A. be terminated. Respondent appeals.
I.
Respondent first argues the trial court erred by not
bifurcating the termination of parental rights proceeding into
distinct adjudication and disposition phases. Termination of
parental rights is a two-step process.
In re Blackburn, 142 N.C.
App. 607, 610, 543 S.E.2d 906, 908 (2001). At the adjudication
stage, the trial court determines whether there is clear, cogent
and convincing evidence to support at least one of the statutory
grounds for termination of parental rights under N.C. Gen. Stat. §
7B-1111(a).
Id. If a ground for termination is proven, the trial
court proceeds to the disposition stage where it exercises its
discretion in determining whether termination is in the best
interests of the child.
Id. "However, so long as the [trial]
court applies the different evidentiary standards at each of the
two stages, there is no requirement that the stages be conducted attwo separate hearings."
In re Shepard, 162 N.C. App. 215, 221, 591
S.E.2d 1, 6 (2004) (citing
In re White, 81 N.C. App. 82, 344 S.E.2d
36,
disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986)).
In the present case, the trial court concluded that grounds
existed to terminate Respondent's parental rights under N.C. Gen.
Stat. § 7B-1111(a)(1) and (a)(5). The trial court then separately
concluded that "the best interests of [D.O.A.] would be served by
having . . . Respondent's parental rights terminated." Therefore,
the trial court applied the appropriate standard at each stage of
the proceeding, and we overrule this assignment of error.
II.
Respondent next argues that several of the trial court's
findings of fact were not supported by clear, cogent and convincing
evidence. The standard for appellate review of a trial court's
determination that grounds exist for termination of parental rights
is whether the trial court's findings of fact are supported by
clear, cogent, and convincing evidence, and whether its conclusions
of law are supported by those findings.
In re McMillon, 143 N.C.
App. 402, 408, 546 S.E.2d 169, 174,
disc. review denied, 354 N.C.
218, 554 S.E.2d 341 (2001).
Respondent challenges the trial court's following findings of
fact:
14. . . . Respondent could have spent time
with [D.O.A.] and could have provided
financial support, but has substantially
failed to do so.
. . .
17. . . . Petitioner has not been secreting[D.O.A.] from . . . Respondent.
. . .
19. . . . Petitioner has had sole custody of
[D.O.A.] pursuant to a court order in file
number 03 CVD 430, Henderson County, which
(prior to this termination order) gave
. . . Respondent certain rights of visitation,
which he has generally not exercised.
20. . . . Respondent has given
. . . Petitioner a few hundred dollars of
child support in the spring of 2004, during a
period of time that he was not incarcerated.
However, otherwise any child support payments
have not been consistent and have not been
made since 2004.
21. . . . Respondent has not been a meaningful
source of financial support for [D.O.A.].
. . .
26. . . . Respondent has worked and earned
some money while in the Department of
Correction[], but has not sent any of his
earnings for the support of [D.O.A.]
27. . . . Respondent is in good health, has
earned money both while incar[cerated] and
while not incarcerated, and has not paid any
support for the benefit of [D.O.A.] since
2004, and very minimal before that time.
. . .
34. . . . Respondent is not under any
disabilities and was employed at High Pasture
Land Surveying and at some construction jobs
in early 2006, but did not provide any
financial support for the benefit of [D.O.A.]
in the form of child support.
35. During those times when . . . Respondent
was not in jail, . . . Respondent would
sometimes not show up for scheduled
visitations and would regularly be late, which
had a negative effect on [D.O.A.].
36. That [Respondent's] relationship with
[D.O.A.] and . . . [Respondent's] involvementin [D.O.A.'s] life has been sporadic,
regardless of whether incarcerated or not, and
[Respondent] has not been a primary caregiver
since 2001.
37. . . . Respondent has failed to legitimate
[D.O.A.], and failed to provide substantial
financial support or consistent care with
respect to [D.O.A.] and [Petitioner], as
contemplated by [N.C. Gen. Stat. §] 7B-
1111(a)(5).
Respondent does not appear to challenge the evidentiary basis
of the trial court's findings of fact. Rather, Respondent argues
"the trial court's findings of fact do not tell the story in its
entirety but just tell a selected view slanted against
[Respondent]. Therefore, the trial court's finding[s] of fact[]
are not based on clear, cogent, and convincing evidence as
presented at trial." However, the trial court had the 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).
When reviewing a record on appeal, a trial court's findings of fact
are conclusive if supported by clear, cogent and convincing
evidence, even if there was conflicting evidence before the trial
court.
In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317,
320 (1988).
Respondent concedes that he has been incarcerated for more
than half of D.O.A.'s life. Respondent argues that while he was in
prison in 2003, he only made $5.00 per week, the entire amount of
which was necessary to meet his personal needs. He also arguesthat during his most recent imprisonment, he could only afford to
send two to three letters per month to D.O.A. Respondent argues
that he worked at High Pasture Land Surveying for only three
months, and other times worked "on and off" at different
construction jobs. However, Respondent does not otherwise dispute
the trial court's findings that he failed to support D.O.A.
Respondent testified he was employed in prison but never sent any
money to Petitioner from prison. Respondent also testified he
worked various jobs in construction and surveying, but did not
provide any support to Petitioner or to D.O.A in 2005 or 2006.
Respondent further argues that while out of prison, he "never
had transportation," and that lack of transportation interfered
with his visitation. Respondent also asserts that while
Petitioner's mother testified that D.O.A. was upset when Respondent
was late for visits or did not show up, "no evidence was presented
to support her hearsay statement." However, Respondent did not
object to this testimony at trial, and the testimony that "[D.O.A.]
was upset" is not an out-of-court statement offered to prove the
truth of the matter asserted.
See N.C. Gen. Stat. § 8C-1, Rule
801(c) (2005) (defining hearsay as "a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.").
After careful review of the record, we hold that the challenged
findings of fact were supported by clear, cogent and convincing
evidence. We overrule the assignments of error grouped under this
argument.
III.
Respondent argues the trial court erred by concluding that
grounds existed to terminate his parental rights under N.C. Gen.
Stat. § 7B-1111(a)(1). Respondent argues "[t]here was no evidence
from . . . Petitioner about the probability of future neglect or
about the willfulness of [Respondent's] situation."
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (2005), a trial
court may terminate parental rights upon a finding that "[t]he
parent has . . . neglected the juvenile. The juvenile shall be
deemed to be . . . neglected if the [trial] court finds the
juvenile to be . . . a neglected juvenile within the meaning of
G.S. 7B-101." Under N.C. Gen. Stat. § 7B-101(15) (2005), a
neglected juvenile is defined as,
inter alia, "[a] juvenile who
does not receive proper care, supervision, or discipline from the
juvenile's parent, guardian, custodian, or caretaker[.]"
Having determined that the trial court's findings of fact are
supported by clear, cogent and convincing evidence, we determine
whether the findings of fact support the trial court's conclusion
that Respondent "willfully neglected [D.O.A.] within the meaning of
N.C.G.S. § 7B-1111(a)(1)." The trial court found that Respondent
was in the custody of the North Carolina Department of Correction
with a projected release date of August 2007. The trial court also
found that Respondent expected to be extradited to South Carolina
upon the completion of his sentence in North Carolina. Therefore,
Respondent, due to his incarceration, would not be available to
provide proper care and supervision for D.O.A. Additionally, thetrial court found that "Respondent could have spent time with
[D.O.A.] and could have provided financial support, but ha[d]
substantially failed to do so." The trial court further found that
Respondent had generally not exercised his visitation rights with
respect to D.O.A. and that "Respondent ha[d] made promises to be
more stable and involved with [D.O.A.], but these [promises] [had]
been unfulfilled." Furthermore, the trial court found that
Respondent's "involvement in [D.O.A.'s] life ha[d] been sporadic,
regardless of whether incarcerated or not, and [Respondent] ha[d]
not been a primary caregiver since 2001." These findings support
the trial court's conclusion that Respondent neglected D.O.A.
Specifically, the findings support the conclusion that Respondent's
neglect of D.O.A. was willful and that there was a probability of
future neglect. We overrule this assignment of error.
Because we hold the trial court did not err by concluding that
Respondent neglected D.O.A., we need not address Respondent's
remaining arguments pertaining to any other ground for termination.
See In re Clark, 159 N.C. App. 75, 84, 582 S.E.2d 657, 663 (2003)
(stating that "where we determine the trial court properly
concluded that one ground exists to support the termination of
parental rights, we need not address the remaining grounds."
).
IV.
Respondent also argues the trial court abused its discretion
by concluding that "the best interests of [D.O.A.] would be served
by having . . . Respondent's parental rights terminated."
Respondent argues that the evidence at trial showed that "whengiven a chance to visit with [Respondent] at the family's last
Christmas gathering, [D.O.A.] hugged and kissed [Respondent] and
sat in [Respondent's] lap and talked." Respondent also argues that
D.O.A. wanted to know when D.O.A. could visit Respondent.
Therefore, Respondent argues, the trial court abused its discretion
by terminating Respondent's parental rights. "On appeal, we review
the trial court's decision to terminate parental rights for an
abuse of discretion."
In re C.L.C., 171 N.C. App. 438, 448, 615
S.E.2d 704, 709 (2005),
aff'd per curiam, 360 N.C. 475, 628 S.E.2d
760 (2006).
In the present case, the trial court found that Respondent was
a registered sex offender and that Respondent was serving a prison
term for failing to register as a sex offender. The trial court
also found that "Respondent could have spent time with [D.O.A.] and
could have provided financial support, but ha[d] substantially
failed to do so." The trial court further found that "[d]uring
those times when . . . Respondent was not in jail, . . . Respondent
would sometimes not show up for scheduled visitations and would
regularly be late, which had a negative effect on [D.O.A]."
Moreover, the trial court found that Respondent's "involvement in
[D.O.A.'s] life ha[d] been sporadic, regardless of whether
incarcerated or not, and [Respondent] ha[d] not been a primary
caregiver since 2001." On the basis of these findings, we hold the
trial court did not abuse its discretion in terminating
Respondent's parental rights. We overrule this assignment of
error. Respondent has failed to set forth arguments pertaining to his
remaining assignments of error, and we deem them abandoned.
See
N.C.R. App. P. 28(b)(6).
Affirmed.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).
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