Opinion
No. COA10-1619
Filed 19 July 2011 This case not for publication
Appeal by respondent-parents from order entered 18 October 2010 by Judge J. Gary Dellinger in Catawba County District Court. Heard in the Court of Appeals 27 June 2011.
Melanie Stewart Cranford, for petitioner-appellees. Mercedes O. Chut, for respondent-appellant father. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for respondent-appellant mother.
Catawba County Nos. 10 JT 55-56.
W.A.H. ("respondent-father") and M.E.K.H. ("respondent-mother") (collectively, "respondents") appeal from an order entered 18 October 2010, which terminated their parental rights to their minor children, L.N.H. ("Leigh") and L.M.H. ("Lisa") (collectively, "the children"). We affirm.
We use pseudonyms to protect the identity of the children and for ease of reading.
I. BACKGROUND
In November 2007, respondents arranged for their children to live with the children's aunt and uncle (the "Scotts"), because respondents, by their own admission, "were unable to provide a safe, appropriate, stable home for the minor children." On 12 December 2007, respondents and the Scotts voluntarily entered into a consent order which granted the Scotts temporary custody of the children and provided that respondents would have reasonable visitation with the children as agreed upon by the parties.
A pseudonym.
After the children resided with the Scotts for a continuous period of more than two years, the Scotts filed a petition to terminate respondents' parental rights to the children on 22 March 2010. The petition alleged grounds existed to terminate respondents' parental rights because they willfully abandoned the children, pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), and neglected the children, pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).
After a hearing on 18 October 2010, the trial court entered an order terminating respondents' parental rights to the children. The court found the existence of both grounds alleged in the petition and that termination of respondents' parental rights was in the best interests of the children. Respondents appeal.
II. SUBJECT MATTER JURISDICTION
Respondent-mother first argues on appeal that the trial court never obtained subject matter jurisdiction over the Chapter 7B termination of parental rights proceeding because the civil court was exercising jurisdiction in the Chapter 50 proceeding. We disagree.
We first note that arguments regarding subject matter jurisdiction may be raised for the first time on appeal. In re T.R.P., 360 N.C. 588, 595, 636 S.E.2d 787, 793 (2006); see also N.C. R. App. P. 10(a) (2010). Therefore, respondent-mother properly raised this issue on appeal.
N.C. Gen. Stat. § 7B-200 states, in pertinent part:
(a) The [district] court has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent. This jurisdiction does not extend to cases involving adult defendants alleged to be guilty of abuse or neglect.
The court also has exclusive original jurisdiction of the following proceedings:
. . .
(4) Proceedings to terminate parental rights.
N.C. Gen. Stat. § 7B-200 (2010).
Respondent-mother supports her argument regarding the lack of subject matter jurisdiction over the termination proceeding by citing this Court's opinion in Sherrick v. Sherrick, ___ N.C. App. ___, 704 S.E.2d 314 (2011). In Sherrick, this Court found the district court lacked jurisdiction to enter a civil custody order because the court failed to properly transfer a juvenile abuse, neglect, or dependency proceeding under Chapter 7B to a Chapter 50 civil action. Id. Sherrick is inapplicable since the instant case involves a private termination of parental rights and does not involve the transfer from a Chapter 7B proceeding to a Chapter 50 civil action.
In the instant case, respondents consented to the entry of a custody order under Chapter 50, which placed the children in the custody of the Scotts. The children lived continuously with the Scotts from December 2007 until March 2010, when the Scotts filed the petition to terminate respondents' parental rights. At the time the Scotts filed the petition to terminate respondents' parental rights, a new civil action was created. In re K.L., 196 N.C. App. 272, 278, 674 S.E.2d 789, 793 (2009). The trial court has exclusive original jurisdiction over proceedings to terminate parental rights. N.C. Gen. Stat. § 7B-200(a)(4). Accordingly, we hold the existence of the Chapter 50 custody action did not deprive the trial court of jurisdiction over the termination proceedings. Respondent-mother's argument is overruled.
III. TERMINATION OF PARENTAL RIGHTS
Respondents argue that the trial court erred by concluding grounds existed to terminate their parental rights because they abandoned the children. We disagree.
A. Standard of Review
A proceeding for termination of parental rights requires the trial court to conduct a two part inquiry. N.C.G.S. § 7B-1109(e) (2001) directs that the court first "shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. [§ ] 7B-1111 which authorize the termination of parental rights of the respondent." Disposition is governed by N.C.G.S. § 7B-1110 (2001), which provides in relevant part that upon a finding "that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent . . . unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated." N.C.G.S. § 7B-1111(a) (2001).
In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003).
"On appeal, our standard of review for the termination of parental rights is whether the [trial] court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." Id. (citations, brackets, and quotations omitted).
[W]hen a trial judge sits as "both judge and juror," as he or she does in a non-jury proceeding, it is that judge's 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). The trial court's findings of fact which an appellant does not specifically dispute on appeal "are deemed to be supported by sufficient evidence and are binding on appeal." In re M.D., ___ N.C. App. ___, ___, 682 S.E.2d 780, 785 (2009). However, "[t]he trial court's conclusions of law are fully reviewable de novo by the appellate court." In re S.N., X.Z., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (citation and quotations omitted).
B. Willful Abandonment
Grounds for termination of parental rights exist where the 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) (2010). "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) (citing Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962)).
Abandonment has also been defined as wilful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if 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.
Pratt, 257 N.C. at 501, 126 S.E.2d at 608. In the context of termination of parental rights based upon willful abandonment, "the word `willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation." In re T.C.B., 166 N.C. App. 482, 485, 602 S.E.2d 17, 19 (2004) (citations and quotations omitted).
In the instant case, respondents arranged for their children to live with the Scotts in November 2007. After the children resided with the Scotts for a continuous period of more than two years, the Scotts filed a petition to terminate respondents' parental rights to the children on 22 March 2010. Therefore, the trial court was required to examine the six-month time period beginning 22 September 2009 until 22 March 2010 to determine whether respondents willfully abandoned the children during this time period. The trial court found, inter alia, that respondents regularly visited with and telephoned the children until February 2009, when their contact with the children and the Scotts decreased significantly. After mid-April 2009, respondents did not visit the children. Other relevant findings of fact regarding respondents' abandonment of the children are:
45. The Respondent Father has not spoken with either minor child since the date of their last visit in mid-April 2009.
46. The Respondent Mother has not spoken with [Lisa] since the date of their last visit in mid-April 2009; she has spoken with [Leigh] by telephone once since that time, specifically on July 12, 2009.
47. On February 1, 2009, the Respondent parents failed to acknowledge [Leigh's] birthday with a telephone call or visit. On November 16, 2009, the Respondent Parents failed to acknowledge [Lisa's] birthday with a telephone call, visit, card, or present. On February 1, 2010, the Respondent Parents failed to acknowledge [Leigh's] birthday with a telephone call, visit, card, or present.
48. By his own admission, the Respondent Father made no attempts to contact the minor children or the [Scotts] after mid-April 2009.
49. While the Respondent Mother asserts that she called the [Scotts] in order to arrange visitation and/or speak with the minor children at least once per day from March 2009 through September or October 2009, the Court does not find this assertion credible. . . . The Respondent Mother's 2009 calendar does not contain notations that she called each and every day during the relevant time period. Out of approximately 30 outgoing telephone calls on the Respondent Mother's cellular telephone from September 2009 through mid-November 2009, there is only one call to the [Scotts]. . . . On this occasion, the Respondent Mother did not receive an answer and did not leave a message for the [Scotts] or the minor children.
50. The Court specifically finds that, for more than six months next preceding the filing of the Petitions to Terminate Parental Rights, the Respondent Mother made only this one aborted attempt in October 2009 to contact the [Scotts] or the minor children. By her own admission, after October 2009, the Respondent Mother made no further attempts to contact the [Scotts] or the minor children.
51. In October 2009, the Respondent Mother changed her cellular telephone number, which was the Respondent Parents' only telephone number, and, to date, has not given her new number to the [Scotts] or the minor children.
52. On April 30, 2010, the Respondent Parents relocated to their current address in Iredell County. They did not notify the [Scotts] of the move and never gave the [Scotts] or their minor children their new address.
53. By their own actions, the Respondent Parents made it impossible for the [Scotts] and the minor children to contact them directly or in an expedient fashion.
. . .
57. Since mid-November 2007, it has been the [Scotts] who have performed all of the natural and legal parental obligations of proper care, supervision, support and maintenance with respect to the minor children. The Respondent Parents have willfully abdicated these responsibilities.
Although respondent-father states that these findings are unsupported by competent evidence, his argument is limited to improperly reassigning culpability for his and respondent-mother's failures to maintain contact with the children. At the termination hearing, respondents and the Scotts testified. Essentially, respondent-father asks this Court to believe respondents' testimony over that of the Scotts. However, in cases where a trial court sits without a jury, credibility determinations are solely within the province of the trial court. In re Whisnant, 71 N.C. App. at 441, 322 S.E.2d at 435. Therefore, respondents effectively abandon their challenges to the above findings of fact. Nonetheless, even assuming arguendo respondents' argument — that the findings are unsupported by competent evidence — is proper, the record and the transcripts of the 20 August and 14 September 2010 hearings contain ample clear, cogent, and convincing evidence to support each of the trial court's findings.
Respondents further argue their abandonment was not willful because the Scotts restricted their visitation with the children. While the record indicates evidence of hostility between respondents and the Scotts that impeded respondents' ability to maintain a relationship with the children, respondents completely failed to even attempt to maintain contact with the children during the six months immediately preceding the filing of the petition to terminate their parental rights. Nor did respondents take any action to pursue their legal rights under the Chapter 50 custody order.
The above unchallenged findings of fact support the trial court's conclusion that grounds existed regarding respondents' willful abandonment of the children. The trial court's findings showing respondents' failure to visit with the children for seventeen months support the conclusion that respondents' purposeful and deliberate determination "to forego all parental duties and relinquish all parental claims to the child[ren]" was willful abandonment. In re Adoption of Searle, 82 N.C. App. at 275, 346 S.E.2d at 514. Therefore, the trial court properly terminated respondents' parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
Respondents also argue that the trial court erred by concluding that their parental rights were subject to termination for neglecting the juveniles pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). However, because we find grounds for termination of parental rights were properly established pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), we need not address respondents' further arguments regarding neglect as a ground for termination pursuant to N.C. Gen. Stat. § 7B-1111(a)(1). See N.C. Gen. Stat. § 7B-1111(a) (2010) (providing a trial court may terminate parental rights "upon a finding of one or more of" ten enumerated grounds); 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.").
IV. BEST INTERESTS
Respondents argue the trial court erred by concluding that terminating their parental rights was in the children's best interests. We disagree.
"After the trial court has determined grounds exist for termination of parental rights at adjudication, the court is required to issue an order of termination in the dispositional stage, unless it finds the best interests of the child would be to preserve the parent's rights." In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason." In re F.G.J., ___ N.C. App. ___, ___, 684 S.E.2d 745, 749 (2009) (quotations and citations omitted). When determining whether it is in the best interests of a child to terminate parental rights, the trial court must consider the factors set forth in N.C. Gen. Stat. § 7B-1110(a) (2010). That statute states:
(a) 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. In making this determination, the court shall consider the following:
(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.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110 (2010).
Respondent-mother argues the trial court erred by failing to consider the impact of the 2007 consent custody order on the family. Respondent-mother contends the 2007 order "completely denied [respondent-mother] her right to have any contact with her children" and stripped her of her parental rights in the years leading up to the termination proceedings. Respondent-father argues Mrs. Scott's actions were improper and the trial court overlooked these improprieties.
In the instant case, the trial court made the following dispositional findings of fact:
3. [Leigh] is eight years old. [Lisa] is four years old.
4. The minor children have resided with [the Scotts], their paternal aunt and uncle, continuously since mid-November 2007, and they have been in the [Scotts'] legal and physical custody continuously since December 12, 2007. The [Scotts] have provided the minor children with a stable, safe, nurturing and loving home, where all their needs are met and the minor children have thrived.
5. The [Scotts] wish to adopt the minor children. The minor children, therefore, are likely to be adopted. The only barrier to adoption is the termination of parental rights.
6. There is no permanency plan established because no prior petition alleging abuse, neglect or dependency has been filed. However, it was and continues to be the intent of the [Scotts] in filing the Petitions to Terminate Parental Rights to pursue adoption of the minor children.
7. The Respondent Father has had no contact with the minor children since mid-April 2009, more than 17 months ago. The Respondent Mother has had no contact with [Lisa] since that same date. The Respondent Mother also has had no in-person contact with [Leigh] since that date, but did speak to her by telephone once on July 12, 2009.
8. The Respondent Parents' last visit with the minor children was not a positive one. Instead of interacting with the minor children, the Respondent Parents chose to yell at and berate Mrs. [Scott], which caused the minor children distress and compelled Mrs. [Scott] to ask the Respondent Parents to leave her home.
9. Due to the Respondent Parents' failure to maintain contact with the minor children, there no longer exists any emotional bond between them. [Leigh] does not wish to see or talk to the Respondent Parents. Due to her young age, [Lisa] has very few memories of the Respondent Parents. Neither minor child mentions or inquires about the Respondent Parents.
10. In sharp contrast, the relationship between the minor children and the [Scotts] is a strong, loving one. In the minor children's eyes, the [Scotts] now are their parents, and they look to the [Scotts] for comfort and to fulfill their needs. [Leigh] wishes to be adopted by the [Scotts].
11. Based upon the Respondent Parents' past and recent history as described herein above in the Court's cumulative findings of fact, it is not possible for the minor children to be safely and appropriately returned to the Respondent Parents' home either now or in the foreseeable future.
These unchallenged findings clearly show the court considered all of the statutory factors enumerated in N.C. Gen. Stat. § 7B-1110, and support the trial court's ruling that termination of respondents' parental rights was in the best interests of the children. Based upon the trial court's findings, we cannot say the trial court's conclusion was manifestly unsupported by reason. While respondent-mother complains about the impact of the 2007 consent custody order, and respondent-father complains about the actions of Mrs. Scott, neither of these complaints suggests that the termination of respondents' parental rights is not in the best interests of the children. Accordingly, we affirm the order of the trial court terminating respondents' parental rights to the children.
V. CONCLUSION
The trial court's order terminating respondent-parents' parental rights is affirmed.
Affirmed.
Judges HUNTER, Robert C., and ELMORE concur.
Report per Rule 30(e).