Opinion
No. COA16-138
08-16-2016
IN THE MATTER OF: S.M.W. ERIN MARIE LEACH, Petitioner, v. PHILLIP RASHAUN WALKER, Respondent.
Judith K. Guibert for Petitioner. Jeffrey William Gillette for Respondent. No brief filed on behalf of Guardian ad Litem.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Orange County, No. 15 JT 10 Appeal by Respondent from order entered 17 November 2015 by Judge Joseph M. Buckner in Orange County District Court. Heard in the Court of Appeals 25 July 2016. Judith K. Guibert for Petitioner. Jeffrey William Gillette for Respondent. No brief filed on behalf of Guardian ad Litem. STEPHENS, Judge.
Respondent appeals from an order terminating his parental rights to his child, S.M.W. ("Sharon"). For the following reasons, we affirm.
A pseudonym is used to protect the identity of the juvenile and for ease of reading. See N.C.R. App. P. 3.1(b).
Factual and Procedural Background
In 2008, Petitioner and Respondent were in a relationship and living together when Petitioner became pregnant with Sharon. They separated in May 2009, two months before Sharon was born. However, Respondent was present at Sharon's birth on 21 July 2009, and his name was listed on her birth certificate. When Sharon was one year old, Petitioner began to date another man ("Mr. L"), who subsequently assumed the role of father for Sharon. In October 2014, Petitioner and Mr. L married, and Mr. L now wishes to adopt Sharon.
On 9 February 2015, Petitioner filed a petition to terminate Respondent's parental rights to Sharon. The petition alleged that grounds existed to terminate Respondent's parental rights on the basis of willful abandonment and failure to establish paternity. See N.C. Gen. Stat. § 7B-1111(a)(5), (7) (2015). Respondent filed an answer to the petition requesting that his parental rights not be terminated. After a hearing on 10 November 2015, the district court entered an order finding the existence of both alleged grounds and terminating Respondent's parental rights to Sharon ("the TPR order"). From the TPR order, Respondent timely appealed.
Discussion
Respondent first argues the trial court erred in concluding grounds existed to terminate his parental rights based on willful abandonment. Specifically, Respondent contends that he did not willfully abandon Sharon but rather that Petitioner cut off his access to the child. We disagree.
"The standard of 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 D.T.L., 219 N.C. App. 219, 220, 722 S.E.2d 516, 517 (2012) (citation and internal quotation marks omitted). "Findings of fact supported by competent evidence are binding on appeal even though there may be evidence to the contrary." In re S.R.G., 195 N.C. App. 79, 83, 671 S.E.2d 47, 50 (2009). "[I]t is the duty of the [district court] judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." In re S.C.R., 198 N.C. App. 525, 531-32, 679 S.E.2d 905, 909 (2009) (citation and internal quotation marks omitted). The district court's conclusions of law are reviewed de novo. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008), affirmed per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009).
Pursuant to section 7B-1111, a district court may terminate parental rights upon concluding that "[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) (2015). "Abandonment imports any willful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." In re T.C.B., 166 N.C. App. 482, 485, 602 S.E.2d 17, 19 (2004) (citation, internal quotation marks, and brackets omitted). "It has been held that if a parent [(1)] withholds his presence, his love, his care, the opportunity to display filial affection, and [(2)] wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child." In re J.D.L., 199 N.C. App. 182, 189-90, 681 S.E.2d 485, 491 (2009) (citation and internal quotation marks omitted).
Regarding the withholding of his love, care, and affection, Respondent acknowledges not visiting Sharon for several years, but argues that this failure was not willful because it was the result of Petitioner obstructing his ability to see Sharon and making it virtually impossible for Respondent to contact Petitioner about the child, rather than due to a lack of effort or desire. In support of this contention, Respondent specifically challenges the following findings of fact:
12. During the first year of the child's life, Respondent arranged with Petitioner to have visitation with the minor child. These visits were sporadic, brief, always in the presence of Petitioner, and months would go by with no communication from Respondent at all. During the second and third year of the child's life, visits occurred less frequently and even longer periods of time passed with no communication from Respondent. Respondent has not visited with the minor child for over two years and made no effort to contact . . . Petitioner during that time to set up visitations, even though Respondent had Petitioner's work number and had contacted her at that number in the past, and even though Respondent knew that Petitioner was in touch with members of Respondent's family through Facebook.
13. Respondent failed to assume parental responsibilities for the minor child throughout the child's life, and in addition, Respondent failed to demonstrate any recent efforts to assume his parental responsibilities for the minor child.Clear, cogent, and convincing evidence in the record supports each of these factual findings.
14. During the first three years of the child's life, Petitioner actively encouraged Respondent to be involved in the child's life.
During the hearing, Petitioner testified that Respondent did not provide any financial support for Sharon and had not seen Sharon in more than three years. She testified that Respondent visited Sharon five to ten times during each of Sharon's first two years of life, but described the visits as sporadic, with months sometimes passing between them. In addition, Petitioner testified that the meetings lasted only 30 to 45 minutes and were never one-on-one. Petitioner further testified that she never refused Respondent visits during the first four years of Sharon's life and would even call Respondent to ask if he would like to see Sharon, but eventually stopped trying when Respondent never came to visit. Petitioner acknowledged that she blocked Respondent from calling her cell phone, but testified that Respondent still could have contacted her to arrange visits because she had the same office phone number for the past ten years. Respondent admitted that he knew Petitioner's office phone number, but testified that he did not want to bother her at work. Petitioner also testified that she kept in touch with some of Respondent's family members through Facebook, but Respondent never attempted to contact her through them. Finally, Petitioner testified that Respondent knew where Petitioner lived up until Sharon was four years old. This is clear, cogent, and convincing evidence that supports the challenged findings of fact.
In a related argument, Respondent challenges certain findings of fact regarding his failure to provide financial support for Sharon. He admits failing to provide any financial support to Sharon since her birth and willfully choosing to use funds he could have provided to Petitioner for support to gamble instead. However, Respondent again contends that this failure was due to Petitioner's blocking access to her cell phone, such that it would have been impossible to provide financial support to Sharon even if he had tried to do so. As noted supra, the evidence supports the court's factual findings that Respondent had various means to contact Petitioner throughout Sharon's life and that Petitioner actively encouraged Respondent to form a relationship with his daughter when she was an infant. Accordingly, we reject this meritless argument.
We are also not persuaded by Respondent's assertion that the district court failed to resolve contradictions in the evidence regarding whether Respondent took care of Sharon after she was first born and whether Respondent had reformed his life. As discussed supra, finding of fact 12—that Respondent only visited Sharon briefly and sporadically during the first few years—indicates that the court determined Petitioner's testimony to be the more credible regarding whether Respondent helped care for Sharon right after her birth. Further, there was no material contradiction pertaining to Respondent's reformed life to be resolved because the only evidence presented was his own testimony that he used to run the streets and deal drugs, but "[he's] not doing that no more." More importantly, whether Respondent was or was not reformed from a life of crime is not pertinent to the question of whether he willfully abandoned his daughter by withholding his love and support for her. Likewise, Respondent's contention that his failure to provide support to Sharon was somehow excused because Petitioner refused to obtain a court order against him for child support is neither pertinent to a finding of willful abandonment nor supported by any legal authority.
Regarding issues that are relevant to a determination of Respondent's willful abandonment of Sharon and the evidence presented on that point at the hearing, the district court made the following findings of fact:
7. Respondent has not provided any financial support for the minor child with the exception of paying . . . Petitioner $40 from a paycheck that she cashed for him at his request shortly after the minor child's birth. However, the paycheck bounced and Petitioner had to pay bank fees, which . . . Respondent refused to reimburse to Petitioner, and as a result, there was no net financial benefit to Petitioner or to the minor child.
8. Respondent brought a gift to the minor child's first
birthday party, but subsequent gifts were misplaced by . . . Respondent.Each of these findings of fact is supported by the evidence before the district court. Petitioner testified that she had to pay substantial medical bills out of pocket for the prenatal care and birth of Sharon and that Respondent did not provide any financial assistance, despite her request for help. The Guardian ad Litem testified that at the time of Sharon's birth, Petitioner was in need of financial help and moved in with her grandmother in order to save money on rent. As noted supra, Respondent admitted spending his discretionary money on gambling.
9. Petitioner was in need of financial assistance from Respondent for her maternity care and, after birth, for the child's needs, and repeatedly asked . . . Respondent for financial help, but her requests were refused by Respondent.
. . . .
11. During the timeframe that Respondent refused financial support for the child, Respondent had funds for his own discretionary spending, such as gambling, and Respondent posted a picture of himself on Facebook surrounded by money.
In sum, the district court's findings of fact demonstrate that Respondent has had little contact with Sharon during her life and none at all for several years and he willfully failed to provide her with love, care, affection, or financial support or to otherwise assume any parental responsibilities for Sharon. These factual findings, which are supported by clear, cogent, and competent evidence, support the trial court's conclusion that a ground existed to terminate Respondent's parental rights based on willful abandonment.
Because we hold that one ground for termination existed pursuant to section 7B-1111(a)(7), we need not address Respondent's remaining argument regarding the other ground. See In re N.T.U., 234 N.C. App. 722, 733, 760 S.E.2d 49, 57 ("In termination of parental rights proceedings, the trial court's finding of any one of the . . . enumerated grounds is sufficient to support a termination." (internal quotation marks omitted)), disc. review denied, ___ N.C. ___, 763 S.E.2d 517 (2014). The TPR order is
AFFIRMED.
Judges DAVIS and DIETZ concur.
Report per Rule 30(e).