Opinion
No. COA12–1408.
2013-06-4
In re E.C.M.
Gretchen Kirkman for petitioner-appellee. Staples Hughes, Appellate Defender, by Annick Lenoir–Peek, Assistant Appellate Defender, for respondent-appellant.
Appeal by respondent from orders entered 11 September 2012 by Judge William Southern in Stokes County District Court. Heard in the Court of Appeals 15 May 2013. Gretchen Kirkman for petitioner-appellee. Staples Hughes, Appellate Defender, by Annick Lenoir–Peek, Assistant Appellate Defender, for respondent-appellant.
Whitson S. Howie III for guardian ad litem.
DAVIS, Judge.
Respondent-father J.M. (“respondent”) appeals the trial court's decision to terminate his parental rights with respect to his son, E .C.M. (“Evan”). After careful review, we affirm.
The pseudonym “Evan” is used throughout this opinion to protect the privacy of the minor and for ease of reading. N.C. R.App. P. 3.1(b).
Factual Background
Petitioner-mother B.C.M.C. (“petitioner”) and respondent—Evan's biological parents—were married in September 2004 and separated in July 2005. Evan was born three months later, in October 2005. On 15 February 2006, petitioner filed claims for child support and custody.
On 18 May 2006, the trial court entered a consent order in which respondent agreed to pay petitioner $581 per month for ongoing child support and $119 per month in arrearages until paid in full. In a parenting agreement signed 25 September 2006, the parties agreed that Evan would primarily reside with petitioner and that respondent would visit with Evan according to a mutually determined schedule. The parenting agreement also provided that if respondent missed two or more consecutive visits, any further visits would be at petitioner's discretion until the parties returned to mediation.
Under the terms of the parenting agreement, respondent visited Evan on alternating Thursdays and weekends until August 2008, when he missed two consecutive visits. As a result, petitioner decided to suspend respondent's visitation with Evan. In October 2008, respondent sent petitioner a gift for Evan and a letter asking about him. Respondent did not hear back from petitioner and has had no further contact with his son since that time.
During the next five years, respondent has periodically sought, and received, reductions in his child support obligation. Respondent has also been held in civil contempt on several occasions due to his failure to pay child support. In each instance, respondent purged himself of contempt by making some payment.
On 1 March 2012, respondent contacted the child custody mediator to schedule a mediation hearing. Although both petitioner and respondent were notified that a mediation session was scheduled for 21 March 2012, petitioner did not attend the session.
On 22 March 2012, petitioner filed a petition to terminate respondent's parental rights. Petitioner alleged three grounds for termination: (1) neglect; (2) willful failure to provide support for the juvenile as required by a support order; and (3) willful abandonment. On 8 May 2012, respondent filed an answer in which he generally denied petitioner's allegations. Petitioner filed a reply on 2 July 2012.
The trial court held a hearing on the petition to terminate respondent's parental rights on 26 July 2012. In separate adjudication and disposition orders filed on 11 September 2012, the trial court determined that (1) petitioner had established all three grounds for termination; and (2) it was in Evan's best interest to terminate respondent's parental rights. Respondent timely appealed from these orders.
Analysis
I. Standard of Review
Termination of parental rights proceedings include two phases: (1) an adjudication phase governed by N.C. Gen.Stat. § 7B–1109 (2011); and (2) a disposition phase governed by N.C. Gen.Stat. § 7B–1110 (2011). In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997). At the adjudication stage, the petitioner has the burden of proving by clear, cogent, and convincing evidence the existence of at least one of the statutory grounds for termination set out in N.C. Gen.Stat. § 7B–1111 (2011). Young, 346 N.C. at 247, 485 S.E.2d at 614. If the petitioner meets her burden of proving that at least one ground for termination exists, the trial court moves to the disposition phase to determine whether termination of parental rights is in the best interest of the child. N.C. Gen.Stat. § 7B–1110(a).
In reviewing a trial court's order addressing the termination of parental rights, the task of the appellate court is to determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact, in turn, support the court's conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). At the disposition stage, the trial court's decision to terminate parental rights is reviewed under an abuse of discretion standard. In re Anderson, 151 N.C.App. 94, 98, 564 S.E.2d 599, 602 (2002).
II. Grounds for Termination
In this case, the trial court found that respondent's parental rights were subject to termination based on all three grounds alleged in the petition: (1) N.C. Gen.Stat. § 7B–1111(a)(1) (neglect); (2) N.C. Gen.Stat. § 7B–1111(a)(4) (willful failure to provide support for the juvenile as required by support order); and (3) N.C. Gen.Stat. § 7B–1111(a)(7) (willful abandonment). Although respondent challenges the trial court's determinations regarding all three grounds, we find the first basis—neglect—to be dispositive.
N.C. Gen.Stat. § 7B–1111(a)(1) provides that a trial court may terminate parental rights if the parent has “neglected the juvenile .” A “neglected juvenile” is defined, in pertinent part, as “[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker ... or who has been abandoned[.]” N.C. Gen.Stat. § 7B–101(15) (2011). In the context of neglect due to abandonment,
[a] bandonment has been defined as “wilful 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.”
In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 427 (2003) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)).
While N.C. Gen.Stat. § 7B–1111(a)(7)—one of the alternative grounds for termination found by the trial court—provides that parental rights may be terminated on the grounds of abandonment if the parent has abandoned the child for at least six consecutive months immediately preceding the filing of the petition, a finding that termination is appropriate based on neglect pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) is not similarly limited to a review of the six-month period prior to the filing of the termination petition.
Here, the trial court made the following findings of fact on this issue:
15. The Respondent/father has not seen the minor child since August, 2008. The Respondent/father has not attempted in the last four years to visit with or contact the minor child. Since last visiting with the child in August, 2008, the respondent/father has moved multiple times and has not contacted the petitioner or a member of her family and notified them of his new residences. Since the Respondent last visited with the juvenile in August, 2008, the respondent has changed his phone number and has not contacted the petitioner or a member of her family and given them his new phone number.
16. The respondent/father has committed nonfeasance due to the extended period of time that the respondent/father has willfully had no contact with the minor child.
17. The respondent/father has willfully not consistently cared for the minor child emotionally, physically or financially.
18. The minor child is almost seven years old and does not know who the respondent is.
....
24. The respondent testified that he believed he could not return to [custody] mediation[;] however, the respondent was never told, by someone with authority, that he could not return to mediation.
....
26. The respondent has known where the juvenile has resided since August, 2008, but has not contacted or attempted to contact the juvenile. The respondent was visiting with the juvenile pursuant to a parenting agreement prior to August, 2008. The respondent was late for several visits and did not attend some of the visits. The respondent knew where the petitioner was living prior to August, 2008 when he was visiting with the minor child. The petitioner has not changed her address and is still residing with the minor child in the same home. The petitioner had the same phone number through August, 2009. The respondent did not attempt to contact the petitioner by phone prior to August, 2009.
27. The respondent has willfully failed to send any cards, gifts, letters, acknowledgments or presents to the juvenile since August, 2008.
28. The respondent has known where the petitioner's father lives and petitioner's sister lives but has not contacted them regarding the juvenile. The respondent has seen the petitioner's father and sister at Walmart but did not ask about the minor child.
29. The petitioner and her husband have the same jobs that they had when the respondent/father was visiting with the minor child prior to August, 2008. The Respondent knew where the petitioner and her husband were working prior to August, 2008. The respondent has not attempted to contact the petitioner or the petitioner's husband at their jobs to ask about the welfare of the juvenile or seek visitation with the juvenile.
As respondent does not challenge any of the trial court's findings on the issue of neglect due to abandonment, they are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These uncontested findings are sufficient to support the trial court's conclusion that respondent neglected the juvenile pursuant to § 7B–1111(a)(1). See In re Yocum, 158 N.C.App. 198, 204, 580 S.E.2d 399, 403 (concluding that trial court's findings supported its determination of neglect where father (1) “never paid any child support for the minor child”; (2) “did not send the minor child any gift or other type of acknowledgment on her birthday”; and (3) had seen his daughter only five times since she was born), aff'd per curiam,357 N.C. 568, 597 S.E.2d 674 (2003); Humphrey, 156 N.C.App. at 540–41, 577 S.E.2d at 427 (finding sufficient evidence to support determination of neglect due to abandonment where mother, during six-year period, had (1) not visited child or requested visitation; (2) not contacted child or child's father; and (3) sent child only one birthday card and no letters or presents or money). Respondent's argument is, therefore, overruled.
Because we conclude that the trial court properly determined that at least one ground for termination existed, we do not address respondent's arguments regarding the other two bases. See Humphrey, 156 N.C.App. at 540, 577 S.E.2d at 426 (finding of one statutory ground is sufficient to support termination of parental rights). Finally, as respondent does not contest the trial court's determination that termination of his parental rights is in Evan's best interest, we likewise affirm the trial court's dispositional order.
Conclusion
For the reasons stated above, we affirm the trial court's 11 September 2012 adjudication and disposition orders.
AFFIRMED. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).