Opinion
No. COA10-1052
Filed 15 March 2011 This case not for publication
Appeal by Respondent from orders entered 14 June 2010 by Judge Charles M. Neaves in Surry County District Court. Heard in the Court of Appeals 14 February 2011.
Janet F. Pauca for mother, Petitioner-appellee. Robert W. Ewing for father, Respondent-appellant.
Surry County No. 06 J 40.
R.D.P. ("Respondent") appeals from the adjudication and disposition orders entered terminating his parental rights to the minor child, C.G.P. For the reasons discussed herein, we affirm the trial court's adjudication order finding grounds to terminate respondent's parental rights; however, we reverse the disposition order and remand the matter because the trial court failed to comply with N.C. Gen. Stat. § 7B-1110(a).
S.E.P. ("Petitioner") and Respondent married on 2 July 2000 and divorced in May 2005. There was one child born of the marriage, C.G.P. On 14 January 2010, Petitioner filed a petition to terminate Respondent's parental rights. Petitioner alleged Respondent willfully abandoned C.G.P. The matter came on for hearing on 4 May 2010. The trial court found grounds existed to terminate Respondent's parental rights. Subsequently, the trial court entered an order terminating Respondent's parental rights. On appeal, Respondent argues the trial court's findings of fact are insufficient to support the conclusion that he willfully abandoned C.G.P.
A termination of parental rights proceeding is conducted in two phases: (1) adjudication and (2) disposition. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudication phase, the petitioner has the burden of proving by clear, cogent, and convincing evidence that one or more of the statutory grounds for termination under N.C. Gen. Stat. § 7B-1111(a) exists. Id. In reviewing an order terminating parental rights, we examine the findings of fact to determine whether they are supported by clear, cogent, and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Pope, 144 N.C. App. 32, 40, 547 S.E.2d 153, 158, aff'd per curiam, 354 N.C. 359, 544 S.E.2d 644 (2001). Findings of fact supported by competent evidence are binding on appeal, even where there is evidence supports contrary findings. In re Mills, 152 N.C. App. 1, 6, 567 S.E.2d 166, 169 (2002).
In the matter at bar, the trial court found:
6. The Respondent's parental rights are subject to termination pursuant to North Carolina General Statute 7B-1111 (a)(7) in that he has wilfully abandoned the minor child for a period of more than six (6) months next preceding the filing of the Petition. Specifically[,] the Respondent appeared for a prior termination hearing in this Cause on May 9, 2007, at which time he made representations to the Court as to his intention to form and maintain a parent/child relationship with the minor child, but since that date the Respondent has had no contact whatsoever with the child.
7. The Petitioner and the minor child have resided at the same address for the past six (6) years.
8. The minor child attends the Millen[n]ium Academy in Mount Airy, where the Respondent's sister is a librarian/media specialist and sees the child on a daily basis.
9. The child has spent holidays, including Christmas, with the Respondent's family.
10. Despite having had ample opportunity, the Respondent has provided no gifts, made no telephone calls and sent no cards to the child, nor has he made contact of any kind with the child.
11. The Respondent is currently in custody in the Commonwealth of Virginia.
Respondent argues that findings of fact six and ten are not supported by clear, cogent, and convincing evidence. Respondent concedes there is sufficient evidence that he did not contact C.G.P. during the relevant time period; however, he argues that, due to his incarceration, his lack of contact was not willful. We disagree.
Parental rights may be terminated if the parent "has willfully abandoned the juvenile for at least six (6) consecutive months immediately preceding the filing of the petition or motion . . . ." N.C. Gen. Stat. § 7B-1111(a)(7) (2009). "Abandonment implies conduct on the part of the parent which manifests a willful determination to forego all parental duties and relinquish all parental claims to the child." In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). "It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962).
Here, Petitioner testified that she filed a prior petition to terminate Respondent's parental rights and that Respondent appeared at the hearing on the petition on 9 May 2007. At that time, Respondent had not seen C.G.P. in three years. However, Respondent expressed his desire to be a good father to C.G.P. and indicated he would re-establish and maintain a relationship with C.G.P. Therefore, the trial court did not terminate Respondent's parental rights. Petitioner testified that, since the 9 May 2007 hearing, Respondent has not written or sent any cards and Respondent has had no contact with C.G.P. of any kind. Petitioner further testified that she and C.G.P. have lived at the same address for the last six years.
Respondent's step-sister testified that she works at the school C.G.P. attends and that she sees C.G.P. and Petitioner every day. Respondent's step-sister further testified that Petitioner maintains contact with Respondent's family, including spending time with the family during holidays. She also testified that Respondent had not been present at any family holiday gatherings that C.G.P. routinely attended.
We find no merit in Respondent's argument that his incarceration precluded him from maintaining contact with C.G.P. While physical contact may have been limited due to the incarceration, Respondent failed to maintain any form of written correspondence with C.G.P. In fact, he failed to acknowledge C.G.P.'s birthday. We therefore conclude that the trial court's findings of fact are supported by clear, cogent and convincing evidence. We further conclude that the trial court's findings of fact are sufficient to support its conclusion that a ground exists to terminate Respondent's parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
Once the trial court has determined that a ground for termination exists, it then moves to the disposition phase, where it must determine whether termination is in the best interest of the child. N.C. Gen. Stat. § 7B-1110(a) (2009). Respondent argues that the trial court abused its discretion in determining that termination of his parental rights was in C.G.P.'s best interest. We agree.
We review the trial court's decision to terminate parental rights for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). Upon an adjudication that one or more grounds for terminating a parent's rights exist, the court shall determine whether terminating the parent's rights is in the juvenile's best interest. N.C. Gen. Stat. § 7B-1110(a) (2009). Furthermore, "[i]n all actions tried upon facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law." N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2009).
The determination of whether termination is in the best interest of the minor child is governed by N.C. Gen. Stat. § 7B-1110, which states that the trial court shall consider the following factors:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
N.C. Gen. Stat. § 7B-1110(a)(1) — (5) (2009).
In its disposition order, the trial court stated:
The court finds by clear, cogent and convincing evidence that there is sufficient evidence to support the issuance of an Order terminating the rights of the Respondent to the parties' minor child, pursuant to § 7B-1101(a)(7) [sic], in that the Respondent has wilfully abandoned the minor child for a period of more than six (6) months next preceding the filing of the Petition. Based upon the foregoing Finding of Fact, the Court concludes as a Matter of Law that it is in the best interests of the minor child that Respondent's parental rights be terminated.
The trial court failed to consider the factors enumerated in N.C. Gen. Stat. § 7B-1110(a). Instead, the trial court based its decision to terminate Respondent's parental rights on its determination that a factual ground existed pursuant to N.C. Gen. Stat. § 7B-1111(a). Furthermore, the trial court failed to state the specific conclusions of law upon which the order for termination of parental rights was based. We conclude that this was an abuse of the trial court's discretion. Accordingly, we reverse the disposition order and remand the matter for a new disposition hearing.
Affirmed in part; reversed and remanded in part.
Judges STROUD and ERVIN concur.
Report per Rule 30 (e).