Opinion
No. COA10-1028
Filed 4 January 2011 This case not for publication
Appeal by respondent from orders entered 11 May 2010 by Judge Athena Brooks in Transylvania County District Court. Heard in the Court of Appeals 21 December 2010.
Donald H. Barton for petitioner-appellee. Duncan B. McCormick for respondent-appellant.
Transylvania County Nos. 09 JT 16, 17.
On 26 March 2009, the mother (petitioner) of V.M.F. (hereinafter referred to by the stipulated pseudonym of "Veronica") and T.A.G. (hereinafter referred to by the stipulated pseudonym of "Tom") filed petitions to terminate the parental rights of respondent, Veronica and Tom's putative father. In each petition, she sought termination of parental rights on the ground that respondent, as the father of the children born out of wedlock, "has not, prior to the filing of the petition or motion to terminate parental rights, established paternity pursuant to NCGS 7B 1111-5(a); nor legitimated the child pursuant to NCGS 7B 1111-5(b), 5(e), nor provided substantial support or consistent care with respect to the child and the mother pursuant to NCGS 7B 1111-5(d)." On 15 October 2009, petitioner amended the petitions to allege as a ground for termination of rights that respondent "has failed to provide substantial financial support or consistent care with respect to the minor children and their mother."
The court conducted a hearing on the petitions on 19 March 2010 and on 11 May 2010 filed and served orders terminating respondent's parental rights to each child on the grounds alleged in the petitions. The court made findings of fact that respondent is the biological father of the children, who were born out of wedlock; that, although respondent made an attempt to acknowledge paternity of Veronica by filing an affidavit of paternity after the petition was filed, he neither legitimated the children nor filed a petition for this specific purpose; that respondent has failed to provide consistent monetary or emotional support for the children; that respondent did "not make consistent attempts to see or communicate with" the children; that respondent did not send cards or presents for the children's birthdays or at Christmas; and that, although respondent has been incarcerated for much of the children's lives, he has possessed at all times the financial ability to pay support for the children and the ability to communicate with the children through cards and letters yet did not do so.
Respondent, pro se, filed a document on 8 June 2010 stating his desire to appeal the court's orders terminating his parental rights. The trial court accepted the document as a notice of appeal and entered an order appointing counsel to represent petitioner on appeal. On 26 August 2010, respondent filed a settled record on appeal with this Court.
On 30 September 2010, respondent filed a petition for writ of certiorari pursuant to N.C.R. App. P. 21(a)(1) in which he acknowledged that there may be jurisdictional issues because the notice of appeal failed to contain a certificate of service, the signature of trial counsel, and a reference to the date or dates the termination orders were filed. On 29 October 2010, petitioner filed a motion to dismiss the appeal because the notice of appeal contained the foregoing deficiencies. Because these omissions do constitute jurisdictional defects, we allow the motion to dismiss. However, we also allow defendant's petition for writ of certiorari and review the orders.
Termination of parental rights must be based upon clear, cogent, and convincing evidence showing that grounds authorizing termination of parental rights exist. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). The burden of proving the existence of the ground is upon the petitioning party. N.C. Gen. Stat. § 7B-1111(b) (2009). Here, the trial court found that grounds existed to terminate respondent's parental rights based upon section 7B-1111(a)(5), which states:
(5) The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights: a. Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or
b. Legitimated the juvenile pursuant to provisions of G.S. 49-10 or filed a petition for this specific purpose; or
c. Legitimated the juvenile by marriage to the mother of the juvenile; or
d. Provided substantial financial support or consistent care with respect to the juvenile and mother.
N.C. Gen. Stat. § 7B-1111(a)(5) (2009). "Although a father may have acted consistently with acknowledging his paternity, strict compliance with the foregoing four requirements is required in order for a father to prevent termination of his parental rights." In re S.C.R., ___ N.C. App. ___, ___, 679 S.E.2d 905, 910 (2009) (quotations and citation omitted). "When basing the termination of parental rights on this statutory provision the court must make specific findings of fact as to all four subsections and the petitioner bears the burden of proving the father has failed to take any of the four actions." In re I.S., 170 N.C. App. 78, 88, 611 S.E.2d 467, 473 (2005) (citation omitted; emphasis added). We review the court's order to determine whether the findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law. In re Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6 (2004). We review conclusions of law de novo. In re J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).
We first consider the order terminating respondent's parental rights as to Veronica. Respondent contends that the court erred by finding that he filed the affidavit of paternity as to Veronica after petitioner filed her petition to terminate respondent's parental rights. Respondent argues that the finding is not supported by clear, cogent, and convincing evidence. We agree.
At the call of the petitions for hearing, petitioner's counsel stipulated that respondent had filed an affidavit of paternity with regard to Veronica. Counsel explained, "we'll determine the age of that filing by examination." However, petitioner never did so. Respondent presented evidence that, on 31 May 2008, he submitted a DNA sample to a laboratory for paternity testing as to Veronica and the laboratory returned a report on 13 June 2008 indicating that he was Veronica's biological father. Respondent then executed an affidavit of paternity and acknowledged his signature before a notary public on 1 October 2008. The affidavit of paternity contains a notation indicating that it was mailed to the North Carolina Department of Health and Human Services (NCDHHS) on 10 October 2008. Petitioner did not present any statement from NCDHHS indicating that the affidavit was not filed as to Veronica prior to the date of the filing of the petition. Such a statement is contained in the record as to the lack of a filing of an affidavit as to Tom. Petitioner could only testify that she was not "aware" of respondent's filing of an affidavit of paternity prior to the filing of the petition and that she thought she became "aware" of the affidavit after the first court hearing. Her testimony cannot establish that respondent filed the affidavit of paternity after petitioner filed her termination petition. Given the absence of any other evidence to indicate that the affidavit was filed after the filing of the petition, we conclude that the trial court's finding is not supported by clear, cogent, and convincing evidence.
Because the evidence does not support the trial court's finding that respondent filed the affidavit of paternity with the central registry after petitioner filed the petition to terminate rights, petitioner has unsuccessfully carried her burden of showing that respondent failed to take any of the four actions set out in N.C. Gen. Stat. § 7B-1111(a)(5). Stated another way, as the record shows that respondent did attempt to take one of the four actions, his parental rights with regard to Veronica may not be terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(5). Accordingly, we reverse the order terminating respondent's parental rights to Veronica.
We next consider the order terminating respondent's parental rights to Tom. Respondent contests the court's conclusion that respondent has not provided substantial financial support or consistent care with respect to the juvenile and the juvenile's mother as required by N.C. Gen. Stat. § 7B-1111(a)(5)d. He argues that the conclusion of law is not supported by the findings of fact.
The court's findings of fact indicate that respondent has failed to provide "consistent monetary support or emotional support for the child"; that respondent has not made consistent attempts to see or communicate with the child; that respondent has not sent birthday or Christmas cards or presents to the child; and that, although respondent has been incarcerated for much of the child's life, he has possessed at all times the financial ability to pay support for this child and to communicate with the child by letters or cards. Respondent does not challenge these findings of fact as being unsupported by the evidence. They are therefore deemed supported by competent evidence and are binding. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ("Where 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.") (citations omitted).
Respondent argues that these findings are insufficient to support the court's conclusion that he failed to provide substantial financial support or consistent care for the child because the court failed to make any findings with respect to the length of respondent's incarceration, respondent's testimony that he deposited his tax refund into the child's paternal grandmother's account so she could give the money to petitioner, respondent's four $75.00 payments to petitioner to ensure eligibility for Medicaid, or respondent's testimony that he provided all he could. The fact that a father has provided some money for the support of his child or provided some care to the child or mother does not preclude a court from concluding that he failed to provide "substantial financial support" or "consistent care" as those terms are used in N.C. Gen. Stat. § 7B-1111(a)(5)d. See In re Hunt, 127 N.C. App. 370, 373, 489 S.E.2d 428, 430 (1997) (holding that payment of less than $1,000.00 for support of child during a three-year period was not "substantial" financial support).
Here, respondent's evidence established that he sent only one check, in the amount of $82.00, to petitioner for the benefit of both children on 1 June 2009, and that he paid petitioner $75.00 per week for one month in order for Veronica to qualify for Medicaid. If, arguendo, one half of the $82.00 check went to the support of Tom, then respondent paid a total amount of $41.00 for the support of Tom. Prorated over the course of fifteen months, Tom's age at the time of the filing of the petition, respondent paid approximately $2.74 per month for Tom's support, hardly a substantial amount. Respondent admitted at trial that he earned approximately $325.00 per week subsequent to his release from prison on 3 February 2010. We hold that the evidence of respondent's paltry financial support of Tom, considered with his failure to send cards or letters, visit, or otherwise communicate with Tom, supports the trial court's finding and conclusion that respondent failed to provide substantial financial support or consistent care with respect to Tom and petitioner.
We reverse and remand the order terminating respondent's parental rights to Veronica (09 JA 16). We affirm the order terminating respondent's parental rights to Tom (09 JA 17).
Affirmed in part; reversed and remanded in part.
Judges HUNTER, Robert C., and CALABRIA concur.
Report per Rule 30(e).