Opinion
No. COA02-1302
Filed 1 July 2003 This case not for publication
Appeal by respondent father from order entered 27 November 2001 by Judge J. Carlton Cole in Gates County District Court. Heard in the Court of Appeals 11 June 2003.
The Twiford Law Firm, P.C., by Edward A. O'Neal, for petitioner-appellee.
Elizabeth A. Hansen for respondent-appellant father.
Gates County No. 00 J 7.
Alan C. Crippen ("respondent") appeals from adjudicatory and dispositional order finding grounds for termination of parental rights and terminating his parental rights. We affirm.
I. Background
Michelle G. Hobbs ("petitioner") and respondent were married in 1994. Randy A. Crippen was born of the marriage on 4 May 1995. The parties separated in June of 1997 and were divorced in April of 1999. Legal custody of the child was awarded to the petitioner in a judgement signed on 3 August 1999. Respondent was awarded supervised visitation with the child, to be arranged with and supervised by petitioner's mother, Joanne Garrett. Respondent visited with the child for approximately two hours on four occasions. He did not schedule any further visitations with Joanne Garrett subsequent to his 1 July 1999 visitation.
Respondent entered into a voluntary child support agreement to provide $175.00 per month to petitioner. At the time, respondent was disabled and receiving social security disability benefits. Respondent paid no support pursuant to the order in 1998 or 1999. An order was entered on 9 April 1999 in which respondent's child support arrearage was forgiven.
For several years respondent had been receiving mental health counseling from Roanoke-Chowan Human Services Center. Evelyn Walton, respondent's caseworker, testified to respondent's mental illness, substance abuse, and dependency on others to help manage his affairs. Ms. Walton testified that over the three to four year course of her interaction with respondent, respondent had suffered approximately four psychotic encounters and had resided in a detoxification center two or three times. Other social workers helped respondent manage his affairs and assisted him in his day-to-day activities.
The trial court found that sufficient grounds existed to terminate respondent's parental rights, as provided by N.C. Gen. Stat. § 7B-1111 by clear, cogent, and convincing evidence. The trial court based its conclusion on respondent's failure to pay support for the child, respondent's willful abandonment of the child, and respondent's incapacity to provide proper care and supervision of the child. The trial court also determined that the best interests of the child required that respondent's parental rights be terminated.
II. Issues
Respondent contends that the trial court erred in: (1) granting petitioner's motion to amend the petition, (2) finding sufficient grounds to terminate respondent's parental rights, and (3) determining that termination of respondent's parental rights was in the best interest of the juvenile.
III. Motion to Amend the Petition
"In a termination of parental rights case, the standard of review is a two-part process: (1) the adjudication phase, governed by section 7B-1109 of our General Statutes, and (2) the disposition phase, governed by section 7B-1110." Whittington v. Hendren, ___ N.C. App. ___, ___, 576 S.E.2d 372, 375 (2003) (citing In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001)).
At the close of petitioner's evidence during the adjudication phase on 26 February 2001, the trial court allowed petitioner to amend her petition to add incapacity to provide care and supervision under N.C. Gen. Stat. § 7B-1111(a)(6) (2001) as a ground for termination. This amendment allowed the pleadings to conform to evidence admitted regarding respondent's mental condition and his drug and substance abuse as testified to by Ms. Walton. Respondent contends the trial court abused its discretion by allowing petitioner to amend her complaint. We disagree.
When issues not raised by the pleadings are tried by the express or implied consent of the parties, pleadings may be amended to conform to the evidence. N.C. Gen. Stat. § 1A-1, Rule 15(2001). Where a party offers evidence at trial which introduces a new issue without objection by the opposing party, the opposing party is deemed as having consented to the admission of the evidence and the pleadings are amended to include the new issue. Byrd v. Byrd, 62 N.C. App. 438, 443, 303 S.E.2d 205, 209 (1983).
Respondent failed to object to Ms. Walton's testimony as being outside the pleadings or irrelevant during the adjudication phase, where the court found grounds to exist to terminate respondent's rights. Respondent consented to the admission of the evidence and the pleadings are deemed amended to conform to the evidence admitted from Ms. Walton's testimony. This assignment of error is overruled.
IV. Sufficient Grounds to Terminate Parental Rights
Respondent contends the trial court erred by finding sufficient grounds to terminate the respondent's parental rights. The order terminating parental rights must be affirmed if a conclusion that grounds exist under any applicable section of the statute is supported by findings of fact that are based on clear, cogent, and convincing evidence. In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127, 133, reh'g denied, 306 N.C. 565 (1982). The trial court found three separate sufficient grounds for terminating respondent's parental rights. N.C. Gen. Stat. § 7B-1111 allows a finding of one ground to be sufficient to terminate.
The trial court concluded that respondent willfully abandoned his child. The court may terminate parental rights upon a finding that the parent has willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition or motion. N.C. Gen. Stat. § 7B-1111(a)(7) (2001). If a parent withholds his presence, love, care, the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent abandons the child. In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982).
Respondent failed to schedule any further visitations with his child after 1 July 1999 and has had no further contact with the child since that time. The trial court found no credible evidence that anyone interfered with respondent's visitation rights. Respondent has never paid any child support. The trial court found as fact that respondent had the ability to pay support. Respondent failed to except to these findings of fact. Without an objection, these findings are binding on appeal. Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962). This assignment of error is overruled.
V. Best Interests of the Child
Respondent argues that the trial court abused its discretion in finding that it was in the best interests of the child to terminate the respondent's parental rights.
The trial court must issue an order terminating parental rights after it determines that one or more grounds to terminate exists, unless the court further determines that the best interests of the juvenile require that parental rights not be terminated. N.C. Gen. Stat. § 7B-1110(a). Once the grounds to terminate parental rights have been established, the decision whether termination is in the best interests of the juvenile lies within the discretion of the court. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001).
The trial court's findings of fact demonstrate respondent's lack of interest in visiting with his son, his failure to provide financially for his son, his inability to care for himself without the help of social workers, and his abuse of controlled substances. Respondent has failed to show the trial court abused its discretion in determining that termination of respondent's parental rights was in the best interests of the juvenile. This assignment of error is overruled.
VI. Conclusion
The trial court properly allowed petitioner to amend her petition to conform to the evidence presented. Clear, cogent, and convincing evidence supports the trial court's findings of fact that grounds exist to terminate respondent's parental rights. Respondent failed to show the trial court abused its discretion when it terminated respondent's parental rights in the best interest of the child.
Affirmed.
Judges MARTIN and LEVINSON concur.
Report per Rule 30(e).