Opinion
No. COA13–237.
2013-08-6
In the Matter of J.M.W., K.L.W.
Stiller & Disbrow, P.C., by Jason C. Disbrow, for Petitioner. Windy H. Rose, for Respondent.
Appeal by Respondent mother from adjudication order entered 10 October 2012 and disposition orders entered 27 November 2012 by Judge Scott Ussery in Columbus County District Court. Heard in the Court of Appeals 15 July 2013. Stiller & Disbrow, P.C., by Jason C. Disbrow, for Petitioner. Windy H. Rose, for Respondent.
DILLON, Judge.
Respondent mother appeals from the trial court's orders terminating her parental rights to the minor children J.M.W. and K.L .W. (the children). We affirm.
I. Factual & Procedural Background
On 9 April 2009, the Columbus County Department of Social Services (DSS) obtained nonsecure custody of the children and filed juvenile petitions alleging that they were neglected and dependent. The children were placed in foster care with Mr. and Mrs. F. (Petitioners). On 6 January 2010, the trial court entered an order adjudicating the children dependent. On 8 November 2010, the trial court conducted a permanency planning hearing and awarded guardianship of the children to Petitioners.
On 27 May 2011, Petitioners filed petitions to terminate Respondent's parental rights, alleging grounds of neglect, willfully leaving the children in foster care for more than twelve months without making reasonable progress to correct the conditions which led to removal of the children from the home, willfully failing to pay a reasonable portion of the cost of care for the children, and willful abandonment. The adjudication hearing was held on 11 and 12 September 2012, after which the trial court found the existence of the four grounds alleged by Petitioners. Following the dispositional hearing on 6 November 2012, the court determined that termination of Respondent's parental rights was in the best interests of the children and entered orders terminating Respondent's parental rights. From these orders, Respondent appeals.
II. Analysis
Respondent contends that the trial court erred in terminating her parental rights. 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). Although the trial court concluded that more than one ground existed to terminate Respondent's parental rights, we find it dispositive that the evidence supports termination on the ground of willful abandonment. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (stating that a finding of one statutory ground is sufficient to uphold termination of parental rights).
Parental rights may be terminated on the ground of willful abandonment if 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) (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).
Respondent argues the trial court erred in terminating her parental rights based upon willful abandonment. Respondent was incarcerated during the relevant six-month period, but contends that during her incarceration she attempted to have contact with the children.
The trial court made the following pertinent findings:
1. The petition to terminate parental rights was filed on May 27, 2011....
....
13. Respondent mother was incarcerated from March of 2010 until July of 2011.
14. Respondent mother admitted and this Court finds that she has seen the juveniles only once since January of 2010, a period of more than two (2) years.
15. Respondent mother has had little to no communication with the juveniles both before her incarceration in March of 2010, during her incarceration, and since her release from the Department of Corrections.
16. Respondent mother earned 40 cents (.40) per day during her period of incarceration from March 2010 until July of 2011. During this time, Respondent mother did not provide any child support for the benefit of the minor children but used the money she earned to purchase items for herself while in prison.
17. Although the maternal grandmother sent cards at Christmas and birthdays for the juvenile[s] over the past three (3) years, Respondent mother did not correspond with the juveniles more than a couple of times herself since January of 2010. Respondent mother has not sent letters inquiring about the juveniles since January of 2010.
Respondent argues that the evidence contradicts the trial court's determination in finding of fact 15 that she “had little to no communication with” her children. Respondent testified, however, that she had seen the children only once since January 2010. Respondent also testified that she had sent the children birthday cards and a Halloween card and that she had participated in a prison program to send toys to the children at Christmas; however, she admitted that she had not written to the children because she “didn't know what to write.” We conclude that this evidence is sufficient to support finding of fact 15.
Respondent also challenges the trial court's determination in finding of fact 16 that Respondent did not pay any child support during her incarceration. Respondent's testimony, however, reflects that she did not make any child support payments during the six-month period relevant for purposes of determining willful abandonment. The only payment made by Respondent during her incarceration was made a full year before the petition in this case was filed, and this payment was not made for the ongoing support of the children, but rather for an arrearage Respondent owed to North Carolina Family Care which Respondent was required to pay in order to purge herself from a show cause hearing notice that had been served on her. We conclude that the evidence—specifically, Respondent's own testimony—was sufficient to support finding of fact 16.
Respondent does not challenge the remaining findings of fact made by the trial court, and they are, therefore, binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (“Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.”). We conclude that the trial court's findings of fact are sufficient to support termination of Respondent's parental rights on grounds of willful abandonment. In light of the foregoing, we affirm the trial court's orders terminating Respondent's parental rights.
AFFIRMED. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).