Opinion
No. COA02-1590
Filed 18 November 2003 This case not for publication
Appeal by Paula Dunlap, respondent mother, from an order entered 2 August 2002 by Judge Michael A. Sabiston in Randolph County District Court. Heard in the Court of Appeals 27 October 2003.
Thomas D. Robins, for Carol Buchanan, petitioner-appellee. No brief filed for guardian ad litem. Peter Wood, for Paula Dunlap, respondent-appellant.
Randolph County No. 01 J 148.
Justin Joe Dorlac was born on 19 April 1996. The respondent, Paula Dunlap, is his mother. The petitioner, Carolyn Buchanan, is the child's maternal grandmother. On 2 July 1996, the Randolph County Department of Social Services ("DSS") filed a petition alleging that Justin was an abused and neglected juvenile. DSS was granted non-secure custody of the child.
On 3 July 1997, nunc pro tunc 30 January 1997, Justin was adjudicated a neglected juvenile pursuant to G.S. § 7A-517.21. The trial court found that respondent and Billy Joe Dorlac, the child's father, had a fight during which the child "was dropped from the porch of the house by respondent mother while unstrapped and lyingin a car seat, and was between both respondent parents while they continued fighting." The court further found that respondent had been intoxicated, and that this "caused her to be neglectful in her role as primary care giver, especially in light of the past domestic violence and likelihood of continued violence on the night in question." Custody of Justin was granted to the petitioner.
On 16 August 2001, a petition to terminate parental rights was filed by petitioner against respondent mother and Justin's father alleging that one or more grounds existed to support the termination under G.S. § 7B-1111. Justin's father did not appeal the termination of his parental rights, and thus we discuss here only respondent mother. First, petitioner alleged that respondent had neglected Justin in that she had not contacted him for several years. Second, petitioner alleged that respondent had neglected Justin by failing to pay any support since he was placed with petitioner. Third, petitioner alleged that respondent had willfully abandoned Justin for at least six consecutive months immediately preceding the filing of the petition. Finally, petitioner stated that the "conduct of the mother . . . has been such as to demonstrate that [she] will not promote the child's healthy and orderly physical and emotional well-being."
On 23 May 2002 and 11 June 2002, hearings were held on the petition to terminate respondent's parental rights. The trial court found that Justin had "sporadic contact" with the respondent after he was placed with petitioner, and that respondent had not seen the child since 1999. The court further found that respondent had not spoken with the child by phone or provided him with birthday or Christmas cards and/or gifts. The court additionally found that respondent has not paid any support for Justin since 1999. Thus, the trial court found and concluded that respondent had neglected Justin within the meaning of G.S. § 7B-1111(1) in that she had not had meaningful contact with the child in the three years prior to the filing of the petition, and had failed to contribute to his support since 1999. Additionally, the trial court concluded that respondent had willfully abandoned Justin for at least six months immediately preceding the filing of the petition. Accordingly, the trial court found that grounds existed to terminate respondent's parental rights, and that it was in Justin's best interests that respondent's parental rights be terminated. Respondent appeals.
We first consider whether the trial court committed prejudicial error when it allowed petitioner to inquire about the existence of prior criminal charges against Josephus Shaw, respondent's fiancé. During petitioner's cross-examination of Shaw, petitioner asked whether Shaw had ever been charged with a crime. Respondent's objection was overruled and Shaw answered that he had once been charged with theft. Respondent asserts that the line of questioning was an impermissible form of impeachment. Respondent contends that the questioning violated Rule 404(b) and Rule 609(a) of the Rules of Evidence, and that the rules of evidence do not allow a witness to be impeached by asking about crimes for which he was only charged. We find no error. Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." G.S. 8C-1, Rule 404(b) (emphasis added). Rule 609(a) provides for the impeachment of a witness's credibility with evidence that the witness has been convicted of certain offenses. Here, however, the questions asked of Shaw were not about a conviction and were not asked to impeach his credibility as a witness. Thus, Rule 609(a) does not apply. In addition, it does not appear the questions were asked to prove he acted in conformity with a bad character. Instead, it appears that the questions were posed for the purpose of determining Shaw's suitability as a caregiver for the child. As such, the questions were relevant and admissible. G.S. § 8C-1, Rule 401.
Furthermore, even assuming arguendo that inquiry into whether he had ever been charged with a crime was improper, there was no prejudice to respondent. "In a bench trial, it is presumed that the judge disregarded any incompetent evidence." In re Beck, 109 N.C. App. 539, 544, 428 S.E.2d 232, 235 (1993) (citing In re Paul, 84 N.C. App. 491, 497, 353 S.E.2d 254, 258, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), cert. denied, 484 U.S. 1004, 98 L.Ed.2d 646 (1988)). Additionally, the findings in the record about Shaw related primarily to his constructive role in respondent's life. There were no findings about his past history. Thus, the evidence of a prior theft charge against Shaw appears to have had little or no bearing on the court's decision to terminate her parental rights. Accordingly, the assignment of error is overruled.
Respondent next argues there was insufficient evidence to support the trial court's findings of fact and conclusions of law. Regarding the finding of neglect, respondent contends the trial court failed to consider her present ability to care for her child. Respondent asserts that her living situation had improved markedly by the time of the hearing. Regarding the finding of abandonment, respondent asserts that her conduct should not have been considered willful because of the interference with visitation by the petitioner. Respondent claims that she had a hostile relationship with petitioner, who did not allow her to see Justin despite her numerous requests.
After careful review of the record, briefs and contentions of the parties, we affirm. G.S. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). "[T]he party petitioning for the termination must show by clear, cogent, and convincing evidence that grounds authorizing the termination of parental rights exist." In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997) (citing G.S. 7A-289.30(d) and (e)).
In the case sub judice, the trial court concluded that respondent had neglected Justin in that she had not had meaningful contact with him since the adjudication of neglect in 1997. "[I]n determining whether neglect has occurred, `the trial judge may consider . . . a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship.'" In re Mills, 152 N.C. App. 1, 7, 567 S.E.2d 168, 170 (quoting In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982)). The court found that respondent had not seen Justin since 1999, had sent neither cards or gifts for holidays or birthdays, and had failed to contribute anything to his support. While respondent argues that the court failed to consider her changed circumstances, the record is clear that her relationship with Justin has remained unchanged. As conceded by respondent on cross — examination, she has "done nothing" for Justin since 1997. See In re Yocum, ___ N.C. App. ___, ___, 580 S.E.2d 399, 403 (2003) ("respondent neglected the minor child's welfare, in that he never paid any child support for the minor child and did not send the minor child any gift or other type of acknowledgment on her birthday"). Thus, the trial court could properly conclude that respondent had neglected Justin within the meaning of G.S. § 7B-1111(1).
Since grounds exist pursuant to G.S. § 7B-1111(1) to support the trial court's order, the remaining grounds found by the trial court to support termination need not be reviewed by the Court. Taylor, 97 N.C. App. at 64, 387 S.E.2d at 233-34. Accordingly, the order terminating respondent's parental rights is affirmed.
Affirmed.
Judges MCGEE and GEER concur.
Report per Rule 30(e).