Opinion
No. COA10-20
Filed 15 June 2010 This case not for publication
Appeal by respondent-father from orders entered 1 October 2009 by Judge Sherry F. Alloway in Guilford County District Court. Heard in the Court of Appeals 25 May 2010.
David A. Perez, for petitioner-appellee mother. Lisa Skinner Lefler, for respondent-appellant father.
Guilford County Nos. 09 JT 73, 09 JT 74.
Respondent-father ("respondent") appeals from orders terminating his parental rights to G.O.W. and M.E.M. After careful review, we affirm.
Evidence from the termination hearing tends to show that petitioner and respondent have two children together, G.O.W. born 16 March 2003, and M.E.M. born 16 July 2005. At the time both children were born, petitioner and respondent were not married, and although he is listed as the father on both G.O.W. and M.E.M.'s birth certificates, respondent has made no efforts to formally establish paternity. Since their births, G.O.W. and M.E.M. have lived with petitioner. Prior to August 2008, respondent visited G.O.W. and M.E.M. on a few occasions at petitioner's residence; however, the vast majority of his visits with the children occurred when petitioner brought the children to see respondent at his house. Petitioner testified that on these visits respondent would spend time with G.O.W. and M.E.M. for approximately 30 to 45 minutes. He then would leave, for reasons unrelated to employment, while petitioner and the two children were still at his residence. In the time prior to August 2008, petitioner continued to have a romantic relationship with respondent, even while he was also romantically involved with his live-in girlfriend. However, in the beginning of August 2008, petitioner decided to end her relationship with respondent and thus stopped taking the children over to respondent's house for visits. Petitioner indicated that she never prevented respondent from seeing the children, and she made it clear that he could continue seeing G.O.W. and M.E.M. if he desired to visit them.
After August 2008, respondent made only two attempts to contact or see the children. Specifically, on 23 February 2009, respondent went to G.O.W.'s school, but he did not see G.O.W. on this occasion because petitioner had not given the school permission to release G.O.W. to respondent. Later that night, respondent called petitioner and left a message for her in which he uttered profanities about the school because he was not able to see G.O.W. that day. Petitioner did not return his call, and respondent never called back. Moreover, respondent has not paid any child support for G.O.W. or M.E.M. Respondent was terminated from his employment for insubordination in 2007 and has not had any long-term employment since that time, though he has had various jobs landscaping, painting, and doing auto detailing. Respondent has paid no child support, despite his continued ability to earn money.
On 27 August 2008, petitioner began dating J.S., and the two married on 13 July 2009. Since then, petitioner, J.S., petitioner's parents, and the children have lived together in a three-bedroom apartment. The family has a good relationship, and the children are bonded to their grandparents and J.S.
On 13 May 2009, petitioner filed petitions to terminate respondent's parental rights to G.O.W. and M.E.M. Petitioner alleged the following grounds for termination: (1) neglect pursuant to N.C.G.S. § 7B-1111(a)(1); (2) failure to legitimate pursuant to N.C.G.S. § 7B-1111(a)(5); and (3) willful abandonment pursuant to N.C.G.S. § 7B-1111(a)(7). In support of her request that respondent's parental rights be terminated, petitioner alleged that respondent had not had any contact with the children in the eight months preceding the filing of the petitions; that he had never provided any financial support or other tangible support for the children; that he had not, by his own initiative, bought the children birthday or Christmas gifts; that he had never sent the children any cards or other written communications; that he had not attended any medical or dental appointments for the children since 2005; and that, prior to August 2008, when petitioner would take the children to visit respondent, he would show them little attention and leave within a half-hour of their arrival. Respondent filed answers to the petitions, in which he admitted certain allegations and denied the existence of the grounds for termination.
After the filing of the termination petitions, respondent made a few attempts to communicate with the children. M.E.M. had a birthday in July 2009, and respondent sent her a card, which was two weeks late. He sent the children another card and two letters in July and August 2009. Respondent testified that he had also bought gifts for the children, but he had not given the gifts to them because he wanted to present the gifts to the children in person. Respondent also saw the children on 4 September 2009 in an unplanned meeting when petitioner and the children ran into him at a local restaurant.
After a hearing, the trial court entered its orders finding the existence of all three grounds for termination alleged in the petitions. In the dispositional portion of the orders, the trial court found that termination of respondent's parental rights was in the best interests of the children. Respondent appeals.
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Proceedings to terminate parental rights are conducted in two parts: (1) the adjudication stage, governed by N.C.G.S. § 7B-1109 and (2) the disposition stage, governed by N.C.G.S. § 7B-1110. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). In reviewing a trial court's order from the adjudication phase, this Court must determine "whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur on the grounds stated." In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996). "So long as the findings of fact support a conclusion [that one of the enumerated grounds exists], the order terminating parental rights must be affirmed." In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003) (internal quotation marks omitted); see also In re J.M.W., E.S.J.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006) ("A single ground . . . is sufficient to support an order terminating parental rights."). If one of the grounds for termination is supported by clear, cogent, and convincing evidence, we then review the trial court's decision to terminate parental rights for abuse of discretion. In re S.N., X.Z., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008) (citations and internal quotation marks omitted), aff'd per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
In the present case, the trial court found three grounds existed to terminate respondent's parental rights to G.O.W. and M.E.M.: (1) willful abandonment, (2) neglect, and (3) failure to legitimate. In support of its determination to terminate respondent's parental rights to G.O.W., the trial court found the following relevant facts:
b) Respondent has had very minimal contact with [G.O.W.] from August 2008 through the present. The only deliberate effort [r]espondent, during this time period, has made to have personal contact with [G.O.W.] occurred in February 2009, when [r]espondent attempted to see [G.O.W.] at his school, Wallburg Elementary School, and when he called the same evening and left a message on [p]etitioner's answering machine. From August 2008 through the present, [r]espondent knew where [p]etitioner and [G.O.W.] lived, [r]espondent having assisted [p]etitioner in moving into her current residence in July 2008, and [r]espondent knew a working telephone number for [p]etitioner whereby [r]espondent could have attempted to have contact with the juvenile. Petitioner's current telephone number has been in working order for years prior to August 2008, and [r]espondent was aware of said telephone number. Respondent, from August 2008 through the present, never went to the home of [p]etitioner to attempt contact with [G.O.W]. Respondent only had one personal contact with [G.O.W.], from August 2008 through the present, which contact occurred within the last month, when [r]espondent happened to run into the [p]etitioner and [G.O.W.] at a restaurant; [r]espondent made no request of [p]etitioner at that time to see [G.O.W.] thereafter in the future. From at least August 2008 through the present, [r]espondent has provided no financial support to the [p]etitioner for the benefit of [G.O.W.], although [r]espondent has had earnings during this time period and was thus able to pay some amount of support for his child. From at least August 2008 through the present, [r]espondent has only written approximately 2 cards or letters to [G.O.W.], all written in July and August of 2009, after the Petition in this matter was filed and after [r]espondent's Answer was filed. Respondent never recognized [G.O.W.]'s birthday in March 2009, by a card, gift, telephone call or otherwise. From at least August 2008 through the present, [r]espondent has provided no gifts to [G.O.W]. The Court finds that [r]espondent has presented no legitimate excuse as to why he did not attempt more contact with [G.O.W.], or provide financial support for [G.O.W.], or provide any gifts for [G.O.W.], during the time period from August 2008 through the present.
. . . .
e) The [p]etitioner changed her cell phone number in September or October 2008, due to disruptive calls from a female friend of [r]espondent. Respondent also changed his cell phone number, and [p]etitioner did not have [r]espondent's new cell phone number until recently. Petitioner's land line has not changed in approximately 5 years, and remains in working order through the present; [r]espondent knew of this telephone number prior to August 2008.
. . . .
g) [Respondent] willfully abandoned [G.O.W.] for at least six consecutive months immediately preceding the filing of the Petition in this matter. During the pertinent six month time period (from November 13, 2008 through May 13, 2009) [r]espondent had no in-person contact with [G.O.W.], no telephone contact with [G.O.W.], provided no written communications to [G.O.W.], provided no gifts to [G.O.W.], and provided no financial support to or for [G.O.W.]; [r]espondent's actions in this regard were willful, deliberate and without justification or excuse. Respondent was not prevented by anyone from having contact with [G.O.W.] during the pertinent time period, with the one exception that [r]espondent was not allowed to remove [G.O.W.] from his school in February 2009. Respondent knew where [G.O.W.] resided this entire pertinent time period, and in fact had previously been to [G.O.W.]'s residence in July 2008. Respondent knew a working telephone number whereby he could have contacted [G.O.W.] during this time period. The only attempt whatsoever [r]espondent made in regard to contact with [G.O.W.] during the pertinent time period was an attempt to see or remove [G.O.W.] from his school in February 2009, and one telephone message [r]espondent left on [p]etitioner's answering machine at that time. Respondent never followed up on this telephone message, and [r]espondent never came to [p]etitioner's residence during the pertinent time period to attempt contact with [G.O.W.], although he was able to do so through the bus system or through other means of transportation. The Court finds the sum total of [r]espondent's efforts to maintain a relationship with [G.O.W.] during the pertinent six month time period to be one attempt to see or remove [G.O.W.] from his school in February 2009 and one telephone message left regarding [G.O.W.] shortly thereafter, and the Court finds said efforts by [r]espondent to be wholly insufficient to negate a finding of willful abandonment of [G.O.W.] by [r]espondent during this time period.
The trial court made similar findings in determining that grounds to terminate respondent's parental rights to M.E.M existed, with the only differences being that the trial court made no finding that respondent attempted to see M.E.M. at school and the trial court found that respondent sent M.E.M. three letters instead of two. Respondent has failed to specifically argue in his brief that these findings are unsupported by the evidence. Thus, they are binding on appeal. In re M.D., N.D., ___ N.C. App. ___, ___, 682 S.E.2d 780, 785 (2009) ("Respondent-Father has not challenged any of the above findings of fact made by the trial court as lacking adequate evidentiary support. As a result, these findings of fact are deemed to be supported by sufficient evidence and are binding on appeal."). Therefore, we are left to determine whether the trial court's findings support its conclusions of law.
N.C.G.S. § 7B-1111(a)(7) provides that the trial court may terminate parental rights upon a finding that "[t]he 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) (2009). The willful abandonment under this subsection "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 Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (internal quotation marks omitted). "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 v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). "The word `willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation." In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986).
Because petitioner filed her petitions to terminate respondent's parental rights on 13 May 2009, the relevant time period for considering whether respondent "abandoned" G.O.W. and M.E.M. is 13 November 2008 through 13 May 2009. The trial court found that, during this relevant time period, respondent had no in-person contact with G.O.W. and M.E.M, made no attempts to visit them other than his failed attempt to see G.O.W. at school; had no telephone conversations with the children; failed to send them cards, letters, or gifts; and failed to provide any financial support to the children. Respondent made only two attempts to contact his children during the relevant time period by trying to see G.O.W. at school in February 2009 and by leaving a telephone message later that same day. Respondent's failure to support, visit, or call G.O.W. and M.E.M. evidences a willful withholding of "his presence, his love, his care, [and] the opportunity to display filial affection," and supports the trial court's conclusion that respondent abandoned them within the meaning of N.C.G.S. § 7B-1111(a)(7). See Pratt, 257 N.C. at 501, 126 S.E.2d at 608; see also In re McLemore, 139 N.C. App. 426, 430-31, 533 S.E.2d 508, 510-11 (2000) (noting that "one ineffectual attempt at contact during the relevant six month period . . . would not preclude otherwise clear willful abandonment" where the father had "provided no financial or emotional support during the relevant six months").
Respondent argues that any inability to provide support for his children was not willful because he was misinformed regarding his responsibilities and duties to provide financial support for the children. Respondent first suggests that because he is unsophisticated, he mistakenly believed that he need not provide any support to the children if he did not see them. Respondent also contends the trial court should have made a finding regarding his ability to pay support. We note first that the trial court did make a finding regarding respondent's ability to provide financial support when it stated that, "[f]rom at least August 2008 through the present, [r]espondent has provided no financial support to the [p]etitioner for the benefit of the minor child, although [r]espondent has had earnings during this time period and was thus able to pay some amount of support for his child[ren]." Any misinformation on respondent's part appears to be the product of his own volition, not ill advice given by a third party, and the trial court's findings establish that he made almost no effort to see the children or to support them financially. See Searle, 82 N.C. App. at 276-77, 346 S.E.2d at 514 (rejecting the respondent's argument that he was unable to visit his child due to a custody order and incarceration where the evidence showed that he had been released from prison for over a year before sending money to his child and the custody order did not prevent him from supporting, calling, or contacting the child).
Respondent also argues that petitioner and her new husband thwarted his attempts to see the children, preventing him from seeing G.O.W. and M.E.M. after petitioner stopped bringing them to his house in August 2008. Although respondent attempts to cast the blame on petitioner, the unchallenged findings of fact indicate otherwise. Specifically, the trial court found "that [p]etitioner and her family have not acted in a manner to alienate [r]espondent from [G.O.W. and M.E.M.] Petitioner has not denied [r]espondent contact or visitation with [G.O.W. and M.E.M.] when requested for the same by [r]espondent." The trial court also found that any relationship respondent had with the children prior to August 2008 was due to petitioner's effort rather than his own, and after petitioner put the responsibility on respondent to continue a relationship, he simply made no effort to see the children, despite his ability to call, write, and visit. Not until July or August 2009, well outside the relevant time frame, did respondent send letters and cards to the children and fortuitously see them at a restaurant. Thus, we conclude that the trial court's findings of fact support the conclusion that respondent willfully abandoned G.O.W. and M.E.M. for at least six consecutive months immediately preceding the filing of the petitions.
Respondent finally argues that the trial court erred by concluding that it was in the children's best interests to terminate his parental rights. As stated above, we review the trial court's determination that a termination of parental rights is in the best interest of the juvenile for abuse of discretion. In re Anderson, 151 N.C. App. 94, 98, 564 S.E.2d 599, 602 (2002). "Abuse of discretion exists when the challenged actions are manifestly unsupported by reason." Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004) (internal quotation marks omitted). After an adjudication determining that grounds exist for terminating parental rights, the trial court is required to consider the following factors in determining whether termination is in the child's best interest:
(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(a)(1)-(6) (2009).
In the present case, the trial court found the following dispositional facts in determining that it was in G.O.W.'s best interest to terminate respondent's parental rights:
The juvenile, now 6 years old, has resided since birth with the [p]etitioner. Petitioner resided with [J.S.] as of the filing of the Petition herein, and on July 13, 2009, [p]etitioner married [J.S.], and they enjoy a good marriage. [J.S.] (31 years old) lives with [p]etitioner (26 years old), [p]etitioner's parents and [G.O.W.] and his sibling in a 3 bedroom, 2 bathroom apartment in High Point, North Carolina. [J.S.] has a warm relationship with his in-laws, with whom he, the [p]etitioner, [G.O.W.] and his sibling live. [J.S.] has developed a warm, strong and loving relationship with [G.O.W.], with whom [J.S.] has daily loving contact, and [J.S.] desires to adopt [G.O.W.], and [p]etitioner desires the same. The likelihood, therefore, of a stepparent adoption of [G.O.W.] by [J.S.] is strong. The Court finds that termination of the parental rights of [r]espondent will aid in a permanent plan of stepparent adoption of [G.O.W.] by [J.S.] While there was a relationship at one time between [r]espondent and [G.O.W.], which was maintained virtually by the sole efforts of [p]etitioner to continue the relationship between [r]espondent and his child, at this point in time, [G.O.W.] has simply a knowledge of [r]espondent as his biological father, but there does not appear to be any significant bond or relationship between [G.O.W.] and the [r]espondent.
The trial court made a similar dispositional finding in determining termination of respondent's parental rights was in M.E.M.'s best interest. Respondent has not challenged these findings of fact; therefore, they are binding on appeal. In re M.D., ___ N.C. App. at ___, 682 S.E.2d at 785.
From these findings, it is evident that the trial court considered all of the statutory factors. As other relevant evidence, the trial court also considered the family's residence, J.S.'s relationship with his in-laws, and the fact that petitioner was solely responsible for maintaining any relationship between the children and respondent. Based on the foregoing, we conclude that the trial court did not abuse its discretion in determining that termination of respondent's parental rights was in G.O.W. and M.E.M.'s best interests.
Respondent, in urging a different result, again argues that he was misinformed about his duties and responsibilities as a parent, is unsophisticated, and was thwarted by petitioner in his attempts to see G.O.W. and M.E.M. While the trial court is not precluded from considering such evidence during the best interest analysis, it is not required to do so. See In re Blackburn, 142 N.C. App. 607, 613, 543 S.E.2d 906, 910 (2001) ("Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage."). At the disposition stage, the trial court's focus is on the best interests of the children, not the culpability of the parents. See In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984) ("[T]he fundamental principle underlying North Carolina's approach to controversies involving child neglect and custody . . . [is] that the best interest of the child is the polar star."). The trial court did not abuse its discretion in determining that termination of respondent's parental rights was in G.O.W. and M.E.M.'s best interests. The order of the trial court is affirmed.
Affirmed.
Judges HUNTER and BEASLEY concur.
Report per Rule 30(e).