Opinion
No. COA12–1240.
2013-04-16
In the Matter of N.A.R.
Richard Croutharmel for mother, petitioner-appellee. Appellate Defender Staples Hughes by Assistant Appellate Defender Joyce L. Terres for father, respondent-appellant.
Appeal by father from orders entered 20 July 2012 by Judge Donna F. Forga in Jackson County District Court. Heard in the Court of Appeals 3 April 2013. Richard Croutharmel for mother, petitioner-appellee. Appellate Defender Staples Hughes by Assistant Appellate Defender Joyce L. Terres for father, respondent-appellant.
STEELMAN, Judge.
Failure of petitioner to state her address in the petition for termination of parental rights did not divest the trial court of subject matter jurisdiction where other information in the petition was sufficient to notify respondent of her standing to file the petition. Where there was clear, cogent, and convincing evidence in the record that respondent had willfully abandoned the child for the six months prior to the filing of the petition, the trial court did not err in terminating his parental rights. Where respondent failed to challenge the trial court's disposition order on appeal, we do not address that issue.
I. Factual and Procedural History
M.V. (“mother”) and M.R. (“father”) are N.A.R.'s biological parents. Mother and father never married. On 2 December 2011, mother filed a petition to terminate father's parental rights. Mother alleged that father had paid no support for N.A.R. and had no contact with the child for the six months preceding the filing of this action.
The matter came on for a hearing on 5 July 2012. On 20 July 2012, the trial court entered orders terminating father's parental rights, holding that father willfully abandoned N.A.R. pursuant to N .C. Gen.Stat. § 7B–1111(a)(7), and that termination of father's parental rights was in the best interests of N.A.R.
Father appeals.
II. Lack of Jurisdiction and Prejudice
In his first two arguments, father contends that the trial court lacked subject matter jurisdiction over this matter, based on mother's failure to include her address in the petition. Father further contends that, even if this omission was not a jurisdictional defect, it was prejudicial to father. We disagree.
A. Standard of Review
Subject-matter jurisdiction is a question of law, reviewable de novo on appeal. McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S .E.2d 590, 592 (2010).
B. Analysis
Father first argues the trial court lacked subject matter jurisdiction over this matter where mother failed to include her address in the petition. N.C. Gen.Stat. § 7B–1104 provides that a petition for termination of parental rights shall set forth “[t]he name and address of the petitioner or movant and facts sufficient to identify the petitioner or movant as one authorized by G.S. 7B–1103 to file a petition or motion.” N.C. Gen.Stat. § 7B–1104(2) (2011). Father contends that compliance with this section shows whether the petitioner has standing to file the petition.
“Standing is jurisdictional in nature and ‘[c]onsequently, standing is a threshold issue that must be addressed, and found to exist, before the merits of [the] case are judicially resolved.’ “ In re Miller, 162 N.C.App. 355, 357, 590 S.E.2d 864, 865 (2004) (quoting In re Will of Barnes, 157 N.C.App. 144, 155, 579 S.E.2d 585, 592 (2003)). A petition to terminate parental rights may be filed by “[e]ither parent seeking termination of the right of the other parent.” N.C. Gen.Stat. § 7B–1103 (a)(1) (2011). In the present case, there is no question that mother is the biological mother of N.A.R. This establishes mother's standing to file a petition for termination of father's parental rights. While mother should have included her address in the petition, its omission was not fatal to the jurisdiction of the trial court. We hold that the trial court had jurisdiction over this matter.
Father further argues that even if mother's failure to include her address was not a jurisdictional defect, it was prejudicial. We hold that father has failed to demonstrate prejudice arising from this omission. Mother did not include her complete address in the petition, but she did include the county and state in which she resided. Mother also included her full name, date of birth, her husband's name, her place of employment and her husband's place of employment.
In In re T.M., we held that a similar omission was not prejudicial, because there was no indication that the mother was unaware of the minor child's placement at any point during the case. In re T.M., 182 N.C.App. 566, 572, 643 S.E.2d 471, 475,aff'd per curiam, 361 N.C. 683, 651 S.E.2d 884 (2007). The information contained in the petition adequately advised father of the location of both mother and N.A.R.
This argument is without merit.
III. Findings of Fact and Conclusions of Law
Father next argues that the trial court erred by terminating his parental rights on the ground of willful abandonment, in that the trial court's findings of fact do not support its conclusion of law. We disagree.
A. Standard of Review
“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), cert. denied,356 N.C. 672, 577 S.E.2d 627 (2003).
B. Analysis
Parental rights may be terminated 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).
In the instant case, the trial court made the following pertinent findings of fact:
13. That the Parties lived together in Jackson County, North Carolina, where the minor child was born and then in Martin County, Florida, with the minor child until the Parties broke up.
14. That the Mother moved back to Jackson County, North Carolina, with the minor child in May 2004, where she and the child initially resided with her parents.
15. That the Father knew where the location of the Mother with the Mother's parents was.
16. That the Mother visited the Father in Florida with the minor child on a regular basis.
....
18. That the last visit that the Father had with the minor child was in 2006.
19. That the Father has made no effort to return to Jackson County, North Carolina.
20. That in 2008, the Father did place phone calls to the Mother because the Mother was pregnant and marrying [D.V.], the father of the child's half-sister, [H.V.].
21. The maternal grandparents of the child have lived in Jackson County, North Carolina since 1988 and have had the same phone number since that time.
22. That the Mother has not given the Father the Mother's specific physical address since 2007, but has not lived outside Jackson County, North Carolina, since that time.
....
25. The Father did not ask to see the child in 2008.
26. In 2010, the Father did send a message to the Mother on Facebook but did not ask for information on how to contact the child or how the child was doing.
27. The Father's family made efforts through the Internet and one phone call to the Mother's parents to contact the Mother.
28. The Father's parents received no response, but there was no indication that the Mother had received these messages.
29. That for a continuous period of six months next preceding the filing of this action, the Respondent Father has willfully abandoned the minor child although the Father had had contact information for the family.
Although father purports to challenge findings of fact 18, 19, 23, 25, 26, 27, and 29, father does not argue that the findings are not supported by clear, cogent and convincing evidence. We hold that each of these findings is supported by clear, cogent and convincing evidence in the record.
The evidence in this case shows that father did not have any contact with N.A.R. for well over six months preceding the filing of the petition to terminate parental rights. The trial court's findings of fact support its conclusion of law that father willfully abandoned N.A.R. for at least six months prior to the filing of the petition for termination of parental rights.
This argument is without merit.
IV. Disposition Order
The trial court entered a separate order of disposition, terminating father's parental rights. In his arguments on appeal, father only challenges the findings of fact and conclusions of law contained in the adjudication order. Any challenge to the disposition order is deemed abandoned. N.C. R.App. P. 28(b)(6).
V. Conclusion
The trial court did not err in terminating father's parental rights based upon willful abandonment. The orders of the trial court are
AFFIRMED. Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).