Opinion
No. COA12–296.
2012-08-21
In the Matter of M.G.C.
Thomas B. Kakassy, for Petitioner–Appellee Mother. Duncan B. McCormick, for Respondent–Appellant Father.
Appeal by Respondent from order dated 28 November 2011 by Judge Thomas G. Taylor in District Court, Gaston County. Heard in the Court of Appeals 24 July 2012. Thomas B. Kakassy, for Petitioner–Appellee Mother. Duncan B. McCormick, for Respondent–Appellant Father.
McGEE, Judge.
In this private termination of parental rights action, Respondent–Father (Respondent) appeals from the trial court's order terminating his parental rights as to M.G.C. Respondent contends the trial court erred by concluding he willfully abandoned M.G.C. We affirm the order of the trial court.
Petitioner–Mother (Petitioner) and Respondent were married at the time M.G.C. was born in 2006. Petitioner and Respondent separated in September 2007 and later divorced. M.G.C. has resided with Petitioner since October 2007. Petitioner obtained a domestic violence protective order against Respondent on 2 October 2007. The protective order expired and Petitioner did not renew the order. Respondent has never provided child support for M.G.C., and he last contacted Petitioner in May 2008. Respondent has not seen M.G.C. since February 2009, when Petitioner drove M.G.C. to visit Respondent in prison. Petitioner filed a petition to terminate Respondent's parental rights on 8 April 2011. The petition was based on the ground that Respondent had willfully abandoned M.G.C. under N.C. Gen.Stat. § 7B–1111(a)(7). Respondent filed an answer, asking that the petition be denied.
A termination of parental rights hearing was held on 13 September 2011. During the adjudication phase of the termination hearing, the evidence tended to show that Respondent had been incarcerated from June 2009 until March 2010, a period of about nine months. Petitioner testified that, in September 2009 during Respondent's incarceration, Petitioner and M.G.C. moved to a new home. Petitioner changed her telephone number in February 2010 to avoid contact with Respondent, and Petitioner blocked Respondent's attempts to contact her through social networking websites. Petitioner further testified she was aware that Respondent had contacted Petitioner's grandparents in January 2010 and in April 2011, after the termination of parental rights petition was filed. Petitioner testified that, during those contacts, Respondent did not offer to visit M.G.C., ask how M.G.C. was, nor offer to provide any support for M.G.C. Petitioner never filed an action seeking child support from Respondent. The guardian ad litem report, filed 4 September 2011, recommended termination of Respondent's parental rights.
Respondent testified that he contacted Petitioner's grandparents in May 2010 and expressed his desire to visit M.G.C., but was told that they did not know where Petitioner and M.G.C. lived. Respondent further testified that he attempted to contact Petitioner's grandparents two more times between November 2010 and April 2011, but was only able to reach a recorded message.
The trial court signed an order terminating Respondent's parental rights on 28 November 2011. In its order, the trial court concluded, pursuant to N.C. Gen.Stat. § 7B–1111(a)(7), that Respondent had willfully abandoned M.G.C. and that it was in M.G.C.'s best interests to terminate Respondent's parental rights. Respondent appeals.
On appeal, Respondent contends the trial court erred by concluding he willfully abandoned M.G.C. In his argument, Respondent challenges, inter alia, the trial court's findings of fact 12, 13, and 20 as being unsupported by clear, cogent, and convincing evidence. 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, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). “[T]he trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.” In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997).
In this case, willful abandonment was the sole ground alleged by Petitioner which was found by the trial court to terminate Respondent's parental rights. “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) (citation omitted).
Willful abandonment has been further defined as:
[W]ilful neglect and refusal to perform the natural and legal obligations of parental care and support. 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[.]
Bost v. Van Nortwick, 117 N.C.App. 1, 18, 449 S.E.2d 911, 921 (1994) (citation omitted), appeal dismissed, 340 N.C. 109, 458 S .E.2d 183 (1995). Willfulness is “more than an intention to do a thing; there must also be purpose and deliberation.” Searle, 82 N.C.App. at 275, 346 S.E.2d at 514.
“ ‘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) (quoting Searle, 82 N.C.App. at 276, 346 S.E.2d at 514). To support the ground of willful abandonment, the trial court's findings of fact must “inherently suggest a willful intent to abandon” and not be subject to other explanations. In re S.R.G., 195 N.C.App. 79, 86, 671 S.E.2d 47, 52 (2009). This Court has held that “a respondent's incarceration, standing alone, neither precludes nor requires a finding” of willful abandonment. In re McLemore, 139 N.C.App. 426, 431, 533 S.E.2d 508, 511 (2000).
In the present case, the trial court's findings of fact 12, 13, and 20 are as follows:
12. Since February of 2009, and for more than one year next preceding the filing of this Petition, the Respondent has expressed no interest in contact with [M.G.C.], has provided no child support, gifts, letters, cards or any other expression of paternal love or acknowledgement.
13. At all times relevant to this Petition, the Respondent has known how to contact M.G.C., and at one time lived two doors down from Petitioner's Parents.
....
20. Petitioner has never prevented Respondent from contacting M.G.C. in any manner.
Respondent challenges these findings of fact as being unsupported by the evidence. Petitioner's testimony indicated that, although she wished to terminate her relationship with Respondent, she would have been willing to allow Respondent to contact M.G.C. through her parents. Petitioner testified she “changed [her] telephone number because [she] didn't want contact with [Respondent], but [she] would have worked out something with [her] family.” Referring to her mother and Respondent, Petitioner testified that “[t]hey could have worked out something.... It worked out at the beginning of the restraining order. It could have worked out then too.”
Petitioner was asked whether she had “received any packages, presents, gifts, or anything on behalf of [M.G.C.] at either [her] grandparents' house or [her] mother's house[.]” Petitioner answered that she had not. Petitioner also testified that neither her grandparents nor her mother had ever received inquiries from Respondent regarding M.G.C. Respondent's mother testified that Respondent had lived “two doors down” from Petitioner's grandparents at one time. Further, Petitioner testified that her grandparents and her mother had received phone calls from Respondent during the relevant period.
We note Respondent testified that he did ask Petitioner's grandparents about establishing visitation, but that they told him they did not know how to contact Petitioner. However, Respondent testified that the phone calls he made in which he raised the issue of visiting M.G.C. were made prior to the six months preceding the petition. During the relevant six month period prior to the filing of the petition, Respondent made only two phone calls to Petitioner's grandparents in which he left voice messages on their answering machine. Petitioner testified that she heard these messages and the first message was “that [she, Petitioner] needed to call [Respondent] and answer his questions.” The second message “was [inaudible] get in contact with him.”
A finding of willful abandonment in this case is dependent in large part on the trial court's assessment of the truthfulness of the witnesses. Respondent contends that Petitioner took steps to prevent him from contacting M.G.C. Petitioner counters that Respondent could have contacted M.G.C. through other means, including Petitioner's parents and grandparents. Petitioner contends that, during the six months preceding the filing of the petition, Respondent did contact Petitioner's family, but did not attempt to contact M.G.C. through Petitioner's family. The trial court is in a better position than this Court to weigh the credibility of the testimony of Petitioner and Respondent. It is our duty to review the record to determine whether the trial court's findings are supported by clear, cogent, and convincing evidence. In the present case, we find the evidence to be clear, cogent and convincing and therefore supportive of the trial court's findings of fact 12, 13 and 20. “[T]he trial court's findings of fact supported by clear and convincing competent evidence are deemed conclusive, even where some evidence supports contrary findings.” In re Helms, 127 N.C.App. 505, 511, 491 S.E.2d 672, 676 (1997). We have found that findings of fact 12, 13 and 20 are supported by clear, cogent, and convincing evidence and they are therefore binding on appeal.
Together with findings of fact 12, 13, and 20, the remaining findings show that Respondent did not act consistently with a desire to maintain his parental relationship with M.G.C. in 2009 and 2010, including by failing to provide any support for M.G.C. We conclude that the findings demonstrate that Respondent willfully abandoned M.G.C. during the relevant six-month period prior to the filing of the petition. Accordingly, we affirm the trial court's order terminating Respondent's parental rights.
Affirmed. Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).