Opinion
No. COA13–238.
2013-08-6
In the Matter of J.R.L.
Jess, Isenberg & Thompson, by Elva L. Jess, for petitioner-appellee Brunswick County Department of Social Services. Annick Lenoir–Peek, Assistant Appellate Defender, for respondent-appellant father.
Appeal by respondent-father from orders entered 18 December 2012 by Judge Sherry Dew Tyler in Brunswick County District Court. Heard in the Court of Appeals 15 July 2013. Jess, Isenberg & Thompson, by Elva L. Jess, for petitioner-appellee Brunswick County Department of Social Services. Annick Lenoir–Peek, Assistant Appellate Defender, for respondent-appellant father.
Poyner Spruill LLP, by Caroline P. Mackie, for guardian ad litem.
MARTIN, Chief Judge.
Respondent-father appeals from the trial court's orders terminating his parental rights to the juvenile J.R.L. (“Jane”) based upon its findings that he had willfully abandoned her and neglected her. For the following reason, we affirm the trial court's order.
A pseudonym is being used to protect the juvenile's identity.
In July of 2010, Jane, then four years old, was removed from her mother's custody and placed with father because the mother had been physically abusive. The mother pled guilty to misdemeanor child abuse as a result of the incident. Subsequently, father was arrested and incarcerated after having been charged with sexually abusing Jane, and she was placed in the custody of the Brunswick County Department of Social Services (“DSS”). On 22 December 2010, DSS filed a petition alleging that Jane was abused, neglected, and dependent, and on 16 March 2011, Jane was adjudicated dependent.
Although the mother's parental rights were terminated in the same order as father's, she is not a party to this appeal.
On 14 February 2012, DSS filed a petition to terminate father's parental rights. The petition alleged father had neglected and willfully abandoned Jane and that she was dependent. Three witnesses testified at the adjudication phase of the termination of parental rights hearing, including father. In an order entered 18 December 2012, the trial court concluded grounds existed to terminate father's parental rights based on neglect and willful abandonment. In a separate disposition order, the trial court concluded it was in Jane's best interest to terminate father's parental rights. Father appeals.
_________________________
On appeal, father contends the trial court erred by finding and concluding that grounds exist to terminate his parental rights based on willful abandonment under N.C.G.S. § 7B1111(a)(7) and neglect under N.C.G.S. § 7B–1111(a)(1). We disagree.
At the adjudicatory stage of a termination of parental rights hearing, the burden is on the petitioner to prove by clear, cogent, and convincing evidence that at least one ground for termination exists. N.C. Gen.Stat. § 7B–1109(f) (2011); In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). Review in the appellate courts is limited to determining whether clear and convincing evidence exists to support the findings of fact, and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
“When the trial court is the trier of fact, the court is empowered to assign weight to the evidence presented at the trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact made by the trial court ... are conclusive on appeal if there is evidence to support them.” In re H.S.F., 182 N.C.App. 739, 742, 645 S.E.2d 383, 384 (2007) (internal quotation marks omitted). “ ‘[W]here 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[.]’ “ In re S.D.J., 192 N.C.App. 478, 486, 665 S.E.2d 818, 824 (2008) (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)).
In disputing the trial court's conclusion that grounds exist to terminate his parental rights based on willful abandonment, father places substantial emphasis on his claim that his criminal defense counsel had instructed him not to have contact with DSS due to the possibility that such contact could have been harmful to him in his criminal case. Father also notes that he attempted to contact his daughter via letter through some of his family members, despite knowing they did not have custody of Jane.
Under N.C.G.S. § 7B–1111(a)(7), the trial court may terminate the parental rights of a parent 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.” N.C. Gen.Stat. § 7B–1111(a)(7) (2011). “Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence.” In re T.C.B., 166 N.C.App. 482, 485, 602 S.E.2d 17, 19 (2004) (internal quotation marks omitted). “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 [sic] neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child....” Bost v. Van Nortwick, 117 N.C.App. 1, 18, 449 S.E.2d 911, 921 (1994) (internal quotation marks omitted), appeal dismissed, 340 N.C. 109, 458 S.E.2d 183 (1995). It is well-settled that “a respondent's incarceration, standing alone, neither precludes nor requires a finding of willfulness.” In re McLemore, 139 N.C.App. 426, 431, 533 S.E.2d 508, 511 (2000).
Here, the evidence and the trial court's findings of fact support its conclusion that father willfully abandoned Jane during the relevant time period, the six months prior to the filing of the termination petition in February 2012. The trial court found that father's criminal defense attorney advised him that she could obtain information for him about his daughter if he desired. Although his attorney recommended that he not speak with DSS while his criminal charges were pending, father “was never advised that he was not to have contact with his child.” The court also found that, as evidenced by the letters father received from the social worker, father was “advised that should he have any questions, [he should] inquire of his attorney and [the social worker] would be happy to answer them.” However, father “did not request any additional information from the Department, nor did he make inquiry with regard to his daughter's progress in school.” Though father produced cards and letters he wrote to his daughter at the hearing,
[t]he letters that [father] produced were addressed to [Jane] in care of family members.... He was aware that his daughter was not living with these family members and that his child was in the Department's custody in foster care. These letters were never delivered to the Department and were not provided to [Jane]. He did not give any cards or letters to his attorney for delivery to his daughter.
As a result, Jane “did not receive anything on Valentine's Day, Easter, her birthday or Christmas” and has had no contact with her father since December 2010. The trial court also noted in its findings of fact that father did not sign a case plan which his attorney and the social worker developed.
These findings of fact support the trial court's conclusion that father had willfully abandoned Jane. Rather than challenge the evidentiary support for these findings, father claims that they constitute the trial court's “twist of the undisputed facts.” The trial court's findings, however, demonstrate that it considered father's claim that he attempted to contact Jane through non-custodial relatives. The trial court ultimately concluded, based on the evidence, that father's efforts were insufficient. Accordingly, we disagree with father's assertion that the trial court's findings of fact improperly characterize the evidence or that its conclusion is not supported by its findings of fact.
Furthermore, although his criminal defense counsel's advice may have been advantageous to father in his criminal case, it did not relieve him of his responsibility to provide Jane with “his presence, his love, his care, and the opportunity to display filial affections for the juvenile.” In re M.D., 200 N.C.App. 35, 43, 682 S.E.2d 780, 785 (2009) (internal quotation marks omitted). As the trial court found, DSS repeatedly made father aware that he was free to contact Jane, or to make inquiries about her well-being, by sending correspondence to her through DSS or through his own attorney.
Because we conclude that the evidence supports termination of his parental rights pursuant to N.C.G.S. § 7B–1111(a)(7) based on willful abandonment, we need not consider father's argument disputing neglect as a basis for termination of his parental rights. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426–27 (2003) (holding that a finding of one statutory ground is sufficient to support the termination of parental rights).
Affirmed. Judges STEELMAN and DILLON concur.
Report per Rule 30(e).