Opinion
No. COA12–1392.
2013-06-4
In the Matter of J.M.
No brief filed for petitioner-mother appellee. Michael E. Casterline for respondent-father appellant.
Appeal by respondent-father from order entered 24 August 2012 by Judge David B. Brantley in Wayne County District Court. Heard in the Court of Appeals 15 May 2013. No brief filed for petitioner-mother appellee. Michael E. Casterline for respondent-father appellant.
McCULLOUGH, Judge.
E.R. (“respondent”) appeals from the trial court's order terminating his parental rights to J.M. After careful review, we affirm in part and remand in part.
E.P. (“petitioner”) and respondent are J.M.'s biological parents. Petitioner and respondent never married. On 9 December 2010, petitioner filed a petition to terminate respondent's parental rights. The petition alleged grounds existed to terminate respondent's parental rights on the basis of willful abandonment. The matter came on for hearing on 13 August 2012. The trial court found respondent's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B–1111(a)(7), and on 24 August 2012 the trial court entered an order terminating respondent's parental rights. Respondent filed notice of appeal.
The petition mistakenly cites N.C. Gen.Stat. § 7A–289.32(8) instead of N.C. Gen.Stat. § 7B–1111(a)(7). Section 7A–289.32 was repealed by 1998 N.C. Sess. Laws 202, sec. 5.
Respondent argues the trial court erred in concluding grounds existed to terminate his parental rights based on willful abandonment. We disagree.
“The standard for review in termination of parental rights cases is whether the findings of fact are supported by clear, cogent and convincing evidence and whether these findings, in turn, support the conclusions of law.” In re Clark, 72 N.C.App. 118, 124, 323 S.E.2d 754, 758 (1984). Findings of fact supported by competent evidence are binding on appeal, even where there is evidence which supports contrary findings. In re Mills, 152 N.C.App. 1, 6, 567 S.E.2d 166, 169 (2002).
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[.]” N.C. Gen.Stat. § 7B–1111 (a)(7) (2011). “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). “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).
In this case, the trial court found:
12. The court in a 2001 action brought by Respondent for visitation granted Respondent certain visitation and provided for child support to be paid in accordance with the NC Child Support Guidelines.
13. The Respondent has brought no further action to enforce visitation and Petitioner has brought no further action to enforce support.
14. Though Respondent states he could not visit or communicate with the minor child because he did not know where Petitioner was living, the Respondent made little or no effort to establish communications with the minor child or to provide support in any manner for the minor child.
15. The Respondent willfully failed to provide support or to maintain communications and contact with the minor child for six months preceding the filing of the Petition.
Respondent first challenges finding of fact 14. Respondent contends this finding is not supported by the evidence. We do not agree. The evidence tended to show that respondent and petitioner last communicated during J.M.'s 2003–2004 school year. Petitioner moved to a new address in 2004 and her phone number did not stay the same, but respondent had petitioner's mother's address and phone number. Petitioner testified that her mother lived at the same address for over 30 years and had the same phone number until October or November 2011. Petitioner testified that respondent had previously contacted her through her mother. Petitioner testified that respondent had not sent any birthday cards or gifts, nor any Christmas cards or gifts. Respondent's wife testified on cross-examination that it was petitioner's responsibility to see that J.M. visited with respondent.
Respondent also challenges finding of fact 15. Respondent contends this finding is actually a conclusion of law and the trial court's findings are not sufficient to support the conclusion that he willfully abandoned J.M.
“A ‘conclusion of law’ is the court's statement of the law which is determinative of the matter at issue between the parties.” Montgomery v. Montgomery, 32 N.C.App. 154, 157, 231 S.E.2d 26, 28–29 (1977). Here, we agree that finding of fact 15 is more appropriately classified as a conclusion of law. When a finding of fact is essentially a conclusion of law, it is reviewable on appeal as a conclusion of law. In re M.R.D.C., 166 N.C.App. 693, 697, 603 S.E.2d 890, 893 (2004).
Here, the findings support the conclusion that respondent willfully abandoned J.M. As discussed above, we believe the evidence supports finding of fact 14. Furthermore, respondent was granted visitation with J.M. in 2001, and exercised his visitation up to the 2003–2004 school year. Thereafter, respondent did not visit with J.M. and did not go to court to enforce his visitation rights. Accordingly, we conclude that the trial court did not err in terminating respondent's parental rights on the basis that he willfully abandoned J.M.
Respondent next argues the trial court erred in terminating his parental rights when it failed to follow the requirements of N.C. Gen. Stat § 7B–1110(a) and failed to conclude that termination of his parental rights was in the best interest of J.M. We agree.
“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).
In each case, the court shall consider the following criteria and make written findings regarding the following that are relevant:
(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.
Id. In this case, the trial court failed to make a best interest determination. The only factors in N.C. Gen.Stat. § 7B–1110(a) that the order arguably addresses are factors 2 and 5, as the trial court found that J.M. desired to be adopted by his stepfather. The trial court did not make any findings as to the other factors, and did not conclude that termination of respondent's parental rights was in J.M.'s best interest. Accordingly, we remand the disposition portion of the trial court's order for entry of appropriate findings pursuant to N.C. Gen.Stat. § 7B–1110(a).
Affirmed in part, remanded in part. Judges ELMORE and DAVIS concur.
Report per Rule 30(e).