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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 December 2007
SJDM, IV No. 06 JT 109
A minor juvenile.
Appeal by respondent-father from order entered 23 April 2007
by Judge Laura Powell in District Court
, Rutherford County. Heard
in the Court of Appeals 5 November 2007.
Katherine Freeman, for petitioner-appellee mother.
Thomas B. Kakassy, for respondent-appellant father.
Although our General Statutes require all adjudicatory and
dispositional hearings to be recorded, failure to comply with this
statute is not, by itself, grounds for a new hearing.
(See footnote 1)
Respondent-father contends that he has been deprived of his right
to an effective appeal because of the lack of adequate audio
recording of the hearing
. Because Respondent-father has failed to
make any specific allegations of prejudice or reconstruct the
evidence, and has not alleged or shown the contents of the lost
testimony, we find no error.
, IV, the minor child, was born on 18 May 2001.
On 21November 2006, Petitioner-mother filed a petition to terminate
parental rights. Petitioner-mother alleged
that Respondent-father had: (1)
willfully failed without
justification to pay for the care, support, and education of the
child, pursuant to N.C. Gen. Stat. § 7B-1111(a)(4) (2005)
willfully abandoned the child for at least six consecutive months
immediately preceding the filing of the petition, pursuant to N.C.
Gen. Stat. §7B-1111(a)(7);
failed to establish paternity,
legitimate the child, marry the mother of the child, or provide
substantial financial support for the child or mother, pursuant to
N.C. Gen. Stat. §7B-1111(a)(5). On 23 April 2007, the trial court
concluded that Respondent-father abandoned the minor child and
terminated his parental rights.
On appeal to this Court, Respondent-father argues that the
trial court erred by: (I) depriving him of his right to an
effective appeal because of the lack of adequate audio recording of
the hearing; (II) making various findings of fact; and (III)
terminating his parental rights.
Respondent-father first argues that
he has been deprived of
his right to an effective appeal as a result of the lack of
adequate audio recording of the termination hearing. Respondent-
father notes that the transcript contained dozens of 'inaudibles'
and that the final arguments were indecipherable. We are not
Pursuant to N.C. Gen. Stat. § 7B-806 (2005), [a]lladjudicatory and dispositional hearings shall be recorded by
stenographic notes or by electronic or mechanical means. However,
[m]ere failure to comply with this statute
standing alone is, however, not by itself
grounds for a new hearing. A party, in order
to prevail on an assignment of error under
section 7B-806, must also demonstrate that the
failure to record the evidence resulted in
prejudice to that party.
Furthermore, the use of general allegations is
insufficient to show reversible error
resulting from the loss of specific portions
of testimony caused by gaps in recording.
In re Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003)
(citations omitted). Additionally, where a verbatim transcript of
the proceedings is unavailable, we have noted that there are means
. . . available for [a party] to compile a narration of the
evidence, i.e., reconstructing the testimony with the assistance of
those persons present at the hearing. Id.
(citing Miller v.
Miller, 92 N.C. App. 351, 354, 374 S.E.2d 467, 469 (1988)).
In this case, the court reporter had to request tapes of the
hearings twice, and at times, she could not identify the speaker or
hear the court.
Respondent-father argues that he was prejudiced
because appellate counsel cannot identify any speaker conclusively,
cannot compare the court's oral judgment to the written judgment,
and cannot understand trial counsels' arguments because of dozens
of 'inaudibles' per page. However, Respondent-father has failed
to make any specific allegations of prejudice, has not attempted to
reconstruct the evidence, and has not alleged or shown in the
record the contents of the lost testimony
. See In Re Bradshaw, 160
N.C. App. 677, 681, 587 S.E.2d 83, 86 (2003) (assignment of erroroverruled where appellant did not attempt to reconstruct the
evidence and made only general allegations of prejudice)
Peirce, 53 N.C. App. 373, 382, 281 S.E.2d 198, 204 (1981) (finding
no prejudice was shown where party did not
allege or show the
contents of the lost testimony in the record
Respondent-father's argument is overruled.
Respondent-father next argues that the trial court erred by
finding that there were grounds to support the termination of his
parental rights. Specifically, Respondent-father argues that the
trial court's findings of fact regarding whether he willfully
abandoned the child for at least six consecutive months immediately
preceding the filing of the petition
were not supported by
competent evidence in the record.
In reviewing the termination of parental rights, [t]he
standard of appellate review is whether the trial court's findings
of fact are supported by clear, cogent, and convincing evidence and
whether the findings of fact support the conclusions of law. In
re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005)
During the adjudication stage of a termination
of parental rights proceeding, the petitioner has the burden of
proof by clear, cogent, and convincing evidence that one or more of
the statutory grounds set forth in section 7B-1111 exists. Id
A finding of any one of the separately enumerated grounds is
sufficient to support a termination. In re Taylor, 97 N.C. App.
57, 64, 387 S.E.2d 230, 233-34 (1990).
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), parental rights
may be terminated when a 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. §
This Court had defined abandonment as:
wilful neglect and refusal to perform the
natural and legal obligations of parental care
and support . . . . [I]f a parent withholds
his presence, his love, his care, the
opportunity to display filial affection, and
wilfully neglects to lend support and
maintenance, such parent relinquishes all
parental claims and abandons the child.
In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003)
(quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608
In the case sub judice, the trial court concluded that
Respondent-father willfully abandoned the minor child
relevant statutory period was from 21 May 2006 to 21 November 2006.
There was no evidence that Respondent-father made any attempt to
see the child during this time period
, and Respondent-father does
not dispute that he did not see the child during this time period.
Nonetheless, Respondent-father challenges the trial court's
findings of fact number twenty-two, that although the Petitioner
moved several times, the Respondent always had means to contact the
Petitioner if he wanted to see the minor child
, and nineteen, that
[d]uring the six month period immediately preceding the filing of
the petition in this action the Respondent did not see the minor
child. Respondent-father concedes that he technically did not
see the child, but contends that
he did not have Petitioner-mother's address during the relevant time period and thus
circumstances prevent a finding of willful abandonment. However,
Respondent-father's own testimony
supports the trial court's
findings of fact. Respondent-father
testified that he had
Petitioner-mother's telephone number and email address and did not
have a difficult time reaching her if he really wanted to
Respondent-father also challenges various findings of fact as
mere recitations of testimony.
We have previously noted that where
findings of fact begin by stating that the witness testified under
oath . . . , and continue to merely restate the content of that
testimony, such verbatim recitations do not constitute findings of
fact. In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195
n.1 (1984). We agree with Respondent-father with regard to
findings of fact numbers twenty-two, twenty-five, and twenty-six,
because the findings merely recite testimony, rather than
reflect[ing] a conscious choice between the conflicting versions
of the incident. Id. However, the trial court's failure to
provide sufficient findings of fact is harmless error, as the
remaining findings of fact are sufficient to support the
conclusions of law.
The trial court further found that Respondent-father paid no
child support to Petitioner since shortly after the child's birth.
Respondent-father did not assign error to this finding of fact.
Thus, this finding of fact is conclusive on appeal. See In re
Padgett, 156 N.C. App. 644, 648, 577 S.E.2d 337, 340 (2003).
we conclude that there was competent evidence andsufficient findings of fact to support the trial court's conclusion
that grounds existed pursuant to N.C. Gen. Stat. §7B-1111(a)(7) to
terminate Respondent-father's parental rights.
Respondent-father lastly argues that the trial court erred in
concluding that it was in the best interests of the child to
terminate his parental rights. We disagree.
The trial court has discretion, if it finds that at least one
of the statutory grounds exists, to terminate parental rights upon
a finding that it would be in the child's best interests. In re
, 147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001). The
court is to take action which is in the best interests of the
juvenile when the interests of the juvenile and those of the
juvenile's parents or other persons are in conflict. N.C. Gen.
Stat. § 7B-1100(3) (2005). The trial court's disposition order
will not be disturbed absent an abuse of discretion, meaning that
the order could not have been the product of a reasoned decision.
In re J.B.
, 172 N.C. App. 747, 751, 616 S.E.2d 385, 387, aff'd
N.C. 165, 622 S.E.2d 495 (2005).
Here, the record is replete with evidence and findings
regarding Respondent-father's infrequent visits with the child, his
almost complete lack of financial support, and his use of illegal
drugs. Moreover, the trial court found as fact:
The Petitioner has married. Both Petitioner
and the step-father have jobs and support the
minor child with money, love, discipline, and
time. The step-father has in all areas acted
like a parent for the last eighteen (18)
months since the marriage, and before themarriage while he dated the Petitioner. The
step-father wants to adopt the child and is
willing to help bear the financial burden as
he has been doing.
Based on the evidence in the record and the findings of fact made
by the trial court, we conclude that the trial court did not abuse
its discretion in determining that the termination of Respondent-
father's parental rights was in the child's best interest.
Accordingly, we affirm.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).
N.C. Gen. Stat. § 7B-806 (2005);
In re Clark
, 159 N.C.
App. 75, 80, 582 S.E.2d 657, 660 (2003)
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