Converted WP file 070787-1

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.

    WYNN, Judge.

    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) Here, 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.
     SJDM , IV, the minor child, was born on 18 May 2001. On 21November 2006, Petitioner-mother filed a petition to terminate Respondent-father's 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) ; (2) 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); and (3) 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 persuaded.
    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) ; In re 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 ). Accordingly, 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. We disagree.
     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) (citation omitted) . 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. § 7B-1111(a)(7) (2005). 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 (1962)).
    In the case sub judice, the trial court concluded that Respondent-father willfully abandoned the minor child . The 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). Accordingly, 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 Nesbitt, 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, 360 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.
    Affirmed.
    Judges ELMORE and STROUD concur.
    Report per Rule 30(e).

Footnote: 1