Opinion
No. COA12–1073.
2013-02-19
In the Matter of L.H.T.
No brief for petitioner-appellee. No brief for guardian ad litem.
Appeal by respondent from orders entered 11 July 2012 by Judge Sherry Dew Tyler in Brunswick County District Court. Heard in the Court of Appeals 29 January 2013. No brief for petitioner-appellee. No brief for guardian ad litem.
Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, for respondent-appellant.
ELMORE, Judge.
Respondent-father appeals from orders 1) finding that grounds existed to terminate his parental rights to L.H.T. (“Liza”) and 2) terminating his parental rights. For the following reasons, we affirm.
I. Background
On 21 October 2011, Liza's mother (petitioner) filed to terminate respondent's parental rights to Liza. As grounds for termination of respondent's parental rights, petitioner alleged that respondent neglected Liza and that he willfully abandoned the child during the six months immediately preceding the filing of the petition. The trial court conducted a hearing regarding the petition on 30 May 2012.
At the hearing, the evidence tended to show that respondent had not had contact with Liza since January 2011, when he visited with her for thirty to forty-five minutes. However, in one instance a few months prior to the hearing, respondent happened upon petitioner and Liza at a grocery store, but Liza did not react as if she recognized him. The evidence also showed that respondent had routinely been late in his child support payments and had several orders, including one in February 2011, issued for his arrest for failure to pay child support. It was also argued at the hearing that respondent never filed any motions to hold petitioner in contempt of court for refusing to allow him to have visitations with Liza, and that he only filed a motion to enforce his visitation rights on 29 May 2012, one day before the termination hearing. Further, it was argued at the hearing that respondent only sought treatment for substance abuse after the petition was filed.
On 11 July 2012, the trial court entered an adjudication order, finding that respondent “has abandoned the minor child by his conduct and inaction with regards to the minor child” and that he “has continued to neglect the minor child by his complete failure to provide the personal contact, love and affection that inheres in the parental relationship.” Based upon these findings, the trial court concluded that grounds existed pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and (a)(7) to terminate respondent's parental rights. Accordingly, the trial court entered a disposition order terminating respondent's rights to Liza. From these orders, respondent appeals.
II. Standard of Review
We review a court's order terminating parental rights to determine whether the findings of fact are supported by clear, cogent and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Shepard, 162 N.C.App. 215, 221, 591 S.E.2d 1, 6,disc. review denied sub nom In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004). We conduct de novo review of the court's conclusions of law. In re S.N., 194 N.C.App. 142, 146, 669 S.E.2d 55, 59 (2008), aff'd per curiam, 363 N .C. 368, 677 S.E.2d 455 (2009).
III. Arguments
A. Findings not supported by evidence
Respondent first argues that the trial court's conclusion, that grounds existed to terminate his parental rights, was based on “very sparse findings of fact” which “fail to accurately reflect the evidence presented” during the hearing. Specifically, respondent challenges the findings 1) that the child did not recognize him in a store, 2) that respondent sought treatment for substance abuse only after the filing of the petition, and 3) that respondent had not filed any motions to hold petitioner in contempt for failure to allow visitation with the child. He argues these findings are not supported by evidence.
Findings of fact in a termination of parental rights order are binding “where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.” In re Montgomery, 311 N.C. 101, 110–11, 316 S.E.2d 246, 252–53 (1984). The findings of fact are also binding when the appellant does not challenge them on appeal. In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009).
With regard to the finding that the child did not “recognize” respondent, a careful reading of respondent's testimony discloses that respondent saw the child and the child did not speak to him. The exact wording of the finding of fact is that respondent saw the child at a grocery store “and, according the [sic] Respondent, the minor child did not react to him as if she recognized him.” The word “recognize” has several different meanings, one of which is “to acknowledge or accept the acquaintance of, as by salutation.” The American Heritage Dictionary of the English Language, New College Edition (1981). A failure to speak to or greet an acquaintance is a form of nonrecognition. Thus, we conclude that this finding is supported by evidence.
Next, with regard to the finding that respondent had not filed any action to enforce visitation with the child, respondent argues that the undisputed evidence shows that he did file a show cause order at one point. Although the trial court did broadly find in finding of fact number 10 that respondent had not filed any motions to hold petitioner in contempt of court for her failure to allow visitation with the child, the trial court subsequently found that respondent had made no attempt to enforce his court-ordered visitation rights until 29 May 2012, the day before the termination hearing commenced. Respondent does not contest the later finding; thus, he is bound by it.
Lastly, we concur with respondent that the evidence does not support the finding that respondent did not seek substance abuse treatment until after the petition was filed in October 2011. Petitioner testified that respondent was “in rehab” near the end of 2010 for two months and respondent testified that he patronized a rehabilitation facility in 2010. Notwithstanding, we conclude that the erroneous finding was harmless error as the other findings support the court's ultimate result. When other findings support an adjudication, “erroneous findings unnecessary to the determination do not constitute reversible error.” In re T.M., 180 N.C.App. 539, 547, 638 S.E.2d 236, 240 (2006).
B. Grounds for terminating parental rights
Respondent next argues that the trial court erred in concluding that grounds existed to terminate his parental rights. Specifically, respondent argues that the trial court erred in concluding 1) that he neglected Liza, and 2) that he willfully abandoned her during the six months immediately preceding the filing of the petition.
We need only conclude that at least one ground existed to terminate respondent's parental rights. See In re B.S.D.S., 163 N.C.App. 540, 546, 594 S.E.2d 89, 93–94 (2004) (“Having concluded that at least one ground for termination of parental rights existed, we need not address the additional ground of neglect found by the trial court.”). Respondent first contends that the evidence and the trial court's findings of fact do not support its ultimate finding and conclusion that he willfully abandoned Liza. He notes that the trial court found that respondent was current in his child support payments except for the May 2012 payment. Further, he contends that there is no evidence or finding that his lack of visitation with the child was the result of a willful intent to forego his parental rights and duties, that he was purposefully and deliberately foregoing his parent rights and responsibilities, or that his actions were inconsistent with a desire to maintain custody of the child. We disagree.
According to N.C. Gen.Stat. § 7B–1111(a)(7), parental rights may be terminated if “[t]he parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]” This Court has held that under this section, abandonment is established by the parent's “wilful neglect and refusal to perform the natural and legal obligations of parental care and support.” In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 427 (2003). It may occur when the “parent withholds his presence, his love, his care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance[.]” Id. However, to terminate parental rights on the basis of abandonment, the court's findings must “show more than a failure of the parent to live up to [his] obligations as a parent in an appropriate fashion; the findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child.” In re S.R.G., 195 N.C.App. 79, 87, 671 S.E.2d 47, 53 (2009).
Here, respondent does not challenge the trial court's findings that he has been routinely late in satisfying his child support obligations, which are court-ordered, and that he has had several orders issued for his arrest for failure to pay child support. Similarly, respondent does not challenge the trial court's findings 1) that he has gone several months without seeing the child; 2) that he has not exercised his right to court-ordered visitation which has been in effect since 2010; 3) that he had little telephone contact with Liza prior to the filing of the petition and after the filing of the petition had only inquired about Liza occasionally via text messages sent to petitioner after midnight; and 4) that he has not provided cards or presents to Liza during the eighteen months prior to the hearing.
We conclude that these foregoing findings support the trial court's ultimate conclusion that respondent willfully abandoned the child. Accordingly, we reject respondent's argument with regards to this issue.
C. Findings of fact on disposition
Lastly, respondent argues that the trial court's findings in the disposition order are not supported by the evidence and thus, the trial court abused its discretion by terminating respondent's parental rights. Specifically, respondent disputes the findings that Liza does not have any bond or attachment to him and that during the previous eighteen months, he has not provided any type of parental care to Liza. Respondent contends that the trial court failed to consider the report of the guardian ad litem and her testimony, that Liza loved her father and expressed a desire to see him.
“After 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) (2011). “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). “A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
We are unable to find such an abuse of discretion here. In its disposition order, the court found without dispute by respondent: 1) that respondent had not had contact with the child since January 2011, 2) that petitioner is able to care properly for the child and provide a safe environment for her, 3) that petitioner has cared exclusively for the child during the previous eighteen months, 4) that petitioner is employed and financially capable of supporting the child, and 5) that petitioner has ample family support to assist her if the need arises. The trial court also incorporated the findings in the adjudication order. The foregoing decision shows consideration by the trial court of the factors listed in N.C. Gen.Stat. § 7B–1110(a) in making a reasoned determination that termination of parental rights is in the best interest of the child. As such we are unable to agree with respondent with regards to this issue.
IV. Conclusion
In sum, we affirm the trial court's decision to terminate respondent's parental rights to the minor child.
Affirmed. Judges McGEE, and HUNTER, ROBERT C., concur.
Report per Rule 30(e).