Opinion
No. COA09-1615
Filed 4 May 2010 This case not for publication
Appeal by respondent-mother from order entered 28 September 2009 by Judge Monica Bousman in Wake County District Court. Heard in the Court of Appeals 12 April 2010.
Sandlin Davidian, PA, by Debra A. Giffiths, for petitioners-appellees.
Carol Ann Bauer for respondent-appellant.
Wake County No. 09 JT 126.
Respondent is the biological mother of the minor child, M.K.O. Respondent's father, D.H.O, and step-mother, D.G.O. (collectively "petitioners"), were contacted while respondent was still pregnant with M.K.O. for assistance in raising M.K.O. At that time, respondent already had one son who resided with respondent's mother. Respondent lived in New Jersey with her grandmother, but did not have a stable residence or job. Near the end of her pregnancy, respondent traveled to North Carolina to live with petitioners and gave birth to M.K.O. Shortly after the birth of M.K.O. respondent asked petitioners to drive her back to New Jersey. On 6 March 2002, respondent consented to a custody order giving petitioners custody of M.K.O. A few years later, respondent gave birth to another son and in August of 2006 moved to Pennsylvania, where she took a job as a phlebotomist. M.K.O. has lived with petitioners since her birth, and would visit with respondent when petitioners traveled to New Jersey to visit other family members.
Petitioners filed a petition to terminate respondent's parental rights on 29 May 2009 and filed an amended petition on 6 July 2009. Petitioners alleged grounds existed to terminate respondent's parental rights because respondent neglected and abandoned M.K.O. After a hearing on 28 August 2009, the trial court entered an order on 28 September 2009 terminating respondent's parental rights to M.K.O. for the reasons alleged in the petition. Respondent appeals.
"Termination of parental rights is a two-stage proceeding." In re Brim, 139 N.C. App. 733, 741, 535 S.E.2d 367, 371 (2000). At the first stage, the adjudicatory phase, "[t]he court shall take evidence, find the facts, and shall adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent." N.C. Gen. Stat. § 7B-1109(e) (2009). The trial court's decision on adjudication of whether grounds exist to terminate the respondent's parental rights "must be supported by clear, cogent and convincing evidence with the burden of proof on the petitioner." In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). Upon finding the existence of one or more grounds for termination of parental rights, "the trial court must proceed to the dispositional stage where the best interests of the child are considered." Id.
"On appeal, our standard of review for the termination of parental rights is whether the court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law." In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003) (internal quotation marks omitted). If the court's findings are supported by "ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary." In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988). "The trial court's conclusions of law are reviewable de novo on appeal." In re D.S., S.S., F.S., M.M., M.S., 177 N.C. App. 136, 138, 628 S.E.2d 31, 33 (2006) (internal quotation marks omitted).
Respondent first argues the trial court's Findings of Fact 27, 28, 30, 31, 32, 33, 35, 36, 40, 48, 50, 52, 53, 54, 55, 56, and 57 are not supported by the evidence presented at the hearing, were misleading, or were actually conclusions of law. We agree that Findings of Fact 55, 56, and 57 are actually conclusions of law. These three findings address the basis for the termination of respondent's parental rights. However, as per our discussion of respondent's second argument below, we conclude that these grounds are adequately supported by the findings.
Respondent does not argue Findings of Fact 27, 28, 30, 31, 32, 33, 35, 36, 40, 48, 50, 52, and 53 are not supported by the evidence at the hearing, but rather argues the findings of fact are "misleading" or should be rewritten to cast petitioners in a more negative light or respondent in a positive light. As respondent does not challenge the evidentiary basis for these findings of fact, they are binding on appeal, notwithstanding respondent's arguments as to their misleading nature. In re P.M., 169 N.C. App. 423, 424, 610 S.E.2d 403, 404-05 (2005) (concluding findings of fact were binding on appeal where respondent had abandoned factual assignments of error when she "failed to specifically argue in her brief that they were unsupported by evidence").
Respondent argues only that Finding of Fact 54 is not supported by clear, cogent and convincing evidence. Finding of Fact 54 states:
Respondent [] has abrogated her parental rights to the minor child to Petitioners since the time of MKO's birth and has made no effort since the child's birth to establish a parent/child relationship with MKO since she was born. [Respondent] has no immediate plans to remove MKO from the care of Petitioners.
Respondent argues she did not abrogate her parental rights to M.K.O. because she testified that she desired that M.K.O. be a part of her extended family and believed petitioners' custody was temporary and that respondent would someday be in a position to take M.K.O. back. However, none of respondent's cited evidence contradicts the trial court's finding that respondent abrogated her parental rights. Respondent left M.K.O. in petitioners' care since birth, more than seven years prior to the filing of the petition to terminate parental rights. Testimony from both respondent and petitioners showed respondent had few contacts with M.K.O., provided no support for M.K.O., and never discussed the possibility of regaining custody of M.K.O. from petitioners. Moreover, respondent did not seek return of her child at the termination hearing and testified the best outcome for M.K.O. would be to stay with petitioners but also have contact with everyone in her extended family. Accordingly, we hold Finding of Fact 54 is supported by clear, cogent and convincing evidence and overrule this assignment of error.
Respondent next argues the trial court erred in concluding grounds existed to terminate her parental rights to M.K.O. in that she willfully abandoned M.K.O. We disagree.
A trial court may terminate parental rights 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 or motion. . . ." N.C. Gen. Stat. § 7B-1111(a)(7) (2009). "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. The word `willful' encompasses more than an intention to do a thing; there must also be purpose and deliberation." In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) (citations omitted). "Whether a biological parent has a willful intent to abandon his child is a question of fact to be determined from the evidence." Id. at 276, 346 S.E.2d at 514. Further, "[w]illful abandonment has been found where a parent withholds his presence, his love, his care, the opportunity to display filial affection, and [willfully] neglects to lend support and maintenance." In re D.J.D., D.M.D, S.J.D., J.M.D., 171 N.C. App. 230, 241, 615 S.E.2d 26, 33 (2005) (alterations in original) (internal quotation marks omitted).
Here, in addition to Finding of Fact 54 discussed above, the trial court made the following findings of fact with regard to respondent's abandonment of M.K.O.:
3. MKO is a citizen and resident of Wake County, North Carolina. She was residing with the Petitioners at the time the petition in this matter was filed and has resided with them from the time of her discharge from the hospital after her birth in North Carolina until the time of the hearing.
4. Respondent [] also resided with Petitioners and MKO for a few days after the birth of the child at which time Respondent [] asked the Petitioners to drive her to her paternal grandmother's home in New Jersey.
5. A child custody order was entered by consent of the Petitioners and Respondent [] on March 6, 2002. . . .
. . . .
7. The March 6, 2002 Consent Custody Order is still a valid order of the court and has not been modified in anyway since its entry. Respondent [] voluntarily entered into the Consent Custody Order providing sole custody of her minor child to [petitioners].
8. MKO has been in the care, custody and control of the Petitioner's [sic] since her birth . . . which is a period greater than twelve (12) months.
. . . .
27. [Respondent] has known the physical address of the petitioners since placing MKO in their custody in February, 2002. She has known their home and cell phone numbers during that time as well. The Petitioners have not moved nor have they changed any of their phone numbers since MKO was placed by [respondent] in their care, custody and control. Despite having this information, [respondent] made no attempts to contact the Petitioners to schedule times to visit with MKO before or after filing the petition to adopt MKO.
28. When [respondent] did speak with the Petitioners, she did not ask them any questions about MKO's education, health or any other issues regarding MKO. Respondent [] did, on several occasions call Petitioners' home to speak with her father to request that he send her money.
29. [Respondent] has not contacted MKO's teachers or health care providers to consult with those individuals regarding MKO's progress and well being.
. . . .
31. When the petitioners traveled to New Jersey to visit with other relatives, [respondent] was able to visit with MKO. There were occasions where [respondent] would come by the home of the relatives where Petitioners were visiting and visit with the child. Since the child's birth [respondent] visited with MKO no more than twelve (12) times, never overnight, never in North Carolina and never for more than a few hours.
32. [Respondent] has contacted MKO by telephone on several occasions; however many of those calls were not placed until after the Petition to Adopt MKO and the Petition to Terminate [respondent's] parental rights were filed. [Respondent] did speak with MKO on one occasion in February, 2009 which was prior to the adoption petition being filed but after the Petitioners discussed with her that they desired to adopt MKO.
33. Since the child's birth, [respondent] has provided no financial support to MKO. At the time of the hearing, [respondent] was employed as a phlebotomist making $13.50 per hour.
[Respondent] has health insurance through her employer and covers her two other minor children on that policy. [Respondent] has not offered to place MKO on that health insurance plan.
34. Since MKO's birth, [respondent] sent one card to her sometime around her first or second birthday. [Respondent] sent MKO a second card by certified mail, return receipt requested in February, 2009. This occurred shortly after the Petitioners contacted [respondent] about adopting MKO and talking with her about providing her consent for the adoption to move forward. Since the adoption petition was filed, [respondent] mailed three letters to MKO, one by certified mail, return receipt requested and two by first class mail.
35. Since the child's birth, three gifts have been sent to MKO by third parties for the benefit of [respondent], including a charitable organization and [respondent's] mother.
36. On several occasions during the hearing, [respondent] made comments about the difficulty she was having providing financially for herself and her two children. These comments were particularly insightful on how [respondent] views her role as a parent to MKO. It is clear that [respondent] did not ever regard MKO as her child in that she differentiated between the children that resided with her and MKO.
Respondent argues many of the failings attributed to her in these findings of fact are due to petitioners' failure to inform her of any need or concern of M.K.O. However, as discussed above, these findings of fact are binding on appeal, and we hold they support the trial court's conclusion that grounds existed to terminate respondent's parental rights to M.K.O. in that respondent willfully abandoned M.K.O. for at least six consecutive months immediately preceding the filing of the petition to terminate parental rights. See In re D.J.D., 171 N.C. App. at 241, 615 S.E.2d at 34 (stating that "[t]his Court has upheld termination based on willful abandonment despite some contact between the parent and the children." (citation omitted)). In light of our holding with respect to this ground of termination, we need not address respondent's remaining arguments regarding the additional ground for termination found by the trial court. N.C. Gen. Stat. § 7B-1111(a) (2009) ("The court may terminate the parental rights upon a finding of one or more of the following [grounds]."); In re D.B., C.B., 186 N.C. App. 556, 561, 652 S.E.2d 56, 60 (2007) ("Where a trial court concludes that parental rights should be terminated pursuant to several of the statutory grounds, the order of termination will be affirmed if the court's conclusion with respect to any one of the statutory grounds is supported by valid findings of fact."), aff'd per curiam, 362 N.C. 345, 661 S.E.2d 734 (2008).
Respondent also argues the trial court abused its discretion in concluding that it would be in the best interests of M.K.O. that respondent's parental rights be terminated. Respondent contends the trial court did not make any findings pursuant to N.C.G.S. § 7B-1110 in support of its conclusion to terminate her parental rights to M.K.O. Respondent's argument is misplaced.
When determining whether it is in the best interests of a child to terminate parental rights, the trial court must consider the following:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a) (2009). "The decision to terminate parental rights is vested within the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the [trial court's] actions were manifestly unsupported by reason." In re J.A.A. S.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005).
In the present case, petitioners filed the petition to terminate respondent's parental rights to M.K.O. so that they could adopt M.K.O. as their own child. The trial court found M.K.O. was seven years old at the time of the hearing, and had been in petitioners' sole custody since her birth. The court further found M.K.O. viewed petitioners as her mother and father, "sought parental love, guidance and support from them[,]" and that there was no parental bond between M.K.O. and respondent. The trial court made numerous findings of fact detailing the depth of the relationship between petitioners and M.K.O., and the actions petitioners have taken to meet M.K.O.'s needs. The trial court's order clearly shows it considered all of the relevant factors of N.C.G.S. § 7B-1110(a) prior to concluding it was in the best interest of M.K.O. to terminate respondent's parental rights. Further, respondent herself admitted at the hearing that it would be best for M.K.O. to remain with petitioners but also know the rest of her family. Respondent has not shown the trial court abused its discretion in finding it was in the best interests of M.K.O. to terminate respondent's parental rights. Accordingly, we affirm the order of the trial court terminating respondent-mother's parental rights to her minor child M.K.O.
Affirmed.
Judges JACKSON and STROUD concur.
Report per Rule 30(e).