Opinion
No. COA15-1395
07-19-2016
IN THE MATTER OF: J.D.C.
Morrow Porter Vermitsky Fowler and Taylor PLLC, by John C. Vermitsky, for Petitioner-appellee mother. Mercedes O. Chut for Respondent-appellant father.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Forsyth County, No. 15 JT 61 Appeal by Respondent-father from order entered 24 September 2015 by Judge Randle Jones in Forsyth County District Court. Heard in the Court of Appeals 20 June 2016. Morrow Porter Vermitsky Fowler and Taylor PLLC, by John C. Vermitsky, for Petitioner-appellee mother. Mercedes O. Chut for Respondent-appellant father. INMAN, Judge.
Respondent-father appeals from the trial court's order terminating his parental rights to his son, J.D.C. ("Justin"). After careful review, we affirm.
Pseudonyms are used to protect the identity of the juvenile and for ease of reading.
Petitioner-mother ("Petitioner") and Respondent-father ("Respondent") have one child together, Justin, who was born in December 2010. The two were not married at the time of his birth, but were in a romantic relationship. They met while Petitioner was in college at Appalachian State University, but moved to Greensboro after Petitioner became pregnant. Respondent, however, had ongoing substance abuse problems, which led to Petitioner ending the relationship in January 2011, when Justin was one month old. Petitioner and Justin then moved to Petitioner's mother's residence in East Bend. They moved to their own residence in Pfafftown in November 2011. Petitioner then met her fiancé, and she and Justin moved to Winston-Salem in 2014.
On 6 March 2015, Petitioner filed a petition to terminate Respondent's parental rights to Justin alleging neglect and willful abandonment as grounds for termination. See N.C. Gen. Stat. §§ 7B-1111(a)(1), (7) (2015). Petitioner was unable to serve Respondent and therefore filed an amended petition on 1 April 2015 alleging the same grounds. Respondent was personally served on the same day. Following hearings in June and July 2015, the trial court entered an order on 24 September 2015 finding the existence of both grounds for termination alleged by Petitioner. In the dispositional portion of the order, the trial court found that termination of Respondent's parental rights was in the best interest of the juvenile. Respondent appeals.
Respondent challenges the trial court's grounds for termination of his parental rights. Pursuant to N.C. Gen. Stat. § 7B-1111(a) (2015), a trial court may terminate parental rights upon a finding of one of the ten enumerated grounds. We review the trial court's order to determine "whether the trial court's findings of fact were based on clear, cogent, and convincing evidence, and whether those findings of fact support a conclusion that parental termination should occur . . . ." In re Oghenekevebe, 123 N.C. App. 434, 435-36, 473 S.E.2d 393, 395 (1996) (citation omitted). If this Court determines that the findings of fact support one ground for termination, we need not review the other challenged grounds. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003).
N.C. Gen. Stat. § 7B-1111 provides that the trial court may terminate a parent's 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). The willful abandonment under this subsection "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 Young, 346 N.C. 244, 251, 485 S.E.2d 612, 617 (1997) (internal quotation marks omitted). "It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and willfully 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). "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). "[T]he findings must clearly show that the parent's actions are wholly inconsistent with a desire to maintain custody of the child." In re S.R.G., 195 N.C. App. 79, 87, 671 S.E.2d 47, 53 (2009).
The following findings of fact are relevant to the ground of abandonment:
8. Following the parties' separation in early 2011, the Court finds that the Respondent did not pursue visits with the minor child or initiate contact with the minor child. The Petitioner arranged for the Respondent to see his son on a bi-weekly basis. The Petitioner initiated contact between the Respondent and the minor child. Petitioner drove from her residence to meet the Respondent, sometimes at [substance abuse treatment facilities], and sometimes at an agreed meeting place in Greensboro. On two occasions, she even drove him to her residence. Respondent's physical contact was minimal and he even expressed disgust over having to change diapers as it left him nauseous and so he left the task to the Petitioner. . . . The Court does not find the Respondent's testimony credible or persuasive regarding his inability to contact the child. The Respondent had the means to make contact with the Petitioner because his sister and other family members had contact with the Petitioner. The Respondent's sister knew the Petitioner's residence, telephone number, email address, and place of employment which had been the same for more than two years. The Respondent's sister contacted Petitioner to arrange visits at her home which Petitioner allowed. However, when Respondent requested unsupervised visits, Petitioner refused because of the Respondent being unstable. Although there were strained relationships between the Respondent's family members and the Petitioner, the Petitioner maintained contact between them and [Justin] for a period of time.
. . . .
10. The Respondent has paid no meaningful support for the benefit of his son. On September 3, 2013, an action was commenced by the Forsyth County Attorney's office [Petitioner v. Respondent] and despite a valid child support order in place requiring
him to pay the sum of $337 per month, the Respondent has paid a total of $45.07 with a current child support arrearage of $5,720.93, as evidenced by a printout from the Clerk's office. A Motion to Show Cause for Contempt was filed against the Respondent in the child support matter. To date, the Motion has not been heard and is still pending. Despite Respondent's testimony on June 11, 2015, that he had "$4,000 to pay toward his support obligation," as of July 30, 2015, he has paid no child support, testifying that the money was spent on "other legal matters." His last child support payment was made on June 3, 2014 in the amount of $30 as a purge payment. Since the minor child's birth, Respondent has provided no clothing or any essential item for the child's welfare and he has not contributed in any meaningful way toward his son's health, education, or welfare despite being drug and alcohol free for the past two years. There is no evidence that substance abuse in any way, over the past two years, interfered with his ability to work or contribute towards his son's financial needs.
11. Respondent has expressed love and concern for his son; yet, he acknowledged that he sent no letters or cards, sent no gifts, paid virtually no support, and admitted to having no contact with his son since late January/early February, 2011. Although he alleged that Petitioner threatened to have him arrested if he tried to see his son, Respondent was never contacted by any law enforcement agency and there was no restraining order in effect that would have prevented the Respondent from seeing his son. There is no evidence of any custody issue before the court, no domestic violence action pending, nor any legal impediment that would have prevented him from seeing his son. Although his sister worked for a law firm, he never contacted an attorney to assist
him in having visitation with his son, claiming that neither he nor a member of his family could afford counsel. Even after having appointed counsel on the contempt charge for failure to pay support on/about the summer of 2014, Respondent took no action. . . . Respondent testified that he "could have fought a lot harder but that he was scared."
12. Respondent testified that he did not know how to contact the Petitioner despite knowing the location of at least one of the Petitioner's residences which he had visited on two occasions. In 2012, the Petitioner obtained a job at the Forsyth County Hall of Justice. Her office number has been the same for the past two years. At some time after this job started, the Respondent saw the Petitioner working behind the Civil In-Take counter in the courthouse. He made no inquiries about the minor child. The Court finds the Respondent was aware of where the Petitioner lived and worked and the Petitioner's whereabouts were known to the Respondent's family such that contact by the Respondent was possible.
13. The Court finds that the Respondent made no effort to establish or maintain any contact with his son for a period in excess of two years, even after he was no longer under the influence of alcohol or drugs. However, the Respondent has been able to establish a relationship with . . . his girlfriend who is pregnant with their child. He has also been able to obtain employment painting.
14. The Court finds that the Respondent, by his own actions, chose to stop visits with his son rather than continuing the supervised visits that had been in place for over two years. Petitioner's concern for the Respondent's welfare, and her understandable concern about unsupervised visitation by the Respondent, was well-founded based upon Respondent's past conduct, including notification from one of his family members that he was found
"passed out" with a shotgun at his feet at his ex-step-mother's home.Of these findings of fact, Respondent takes exception to portions of numbers 8, 12, 13, and 14. Respondent has not challenged the remaining findings of fact listed above. We therefore presume that findings of fact 10, 15, and 16, as well as the unchallenged portions of findings of fact 8, 11, 12, 13, and 14, are supported by competent evidence and are consequently binding on appeal. See In re M.D., 200 N.C. App. 35, 43, 682 S.E.2d 780, 785 (2009). We address each challenged finding of fact in turn. Finding of Fact 8
15. Respondent testified that he made daily attempts to talk with the Petitioner, even to the point of setting his alarm clock to remind him to call Petitioner at the same time every day for months, all without success. Yet, when questioned on cross-examination, whether he had any records to support his claim, he had none to present to the court.
16. The last visit between father and son took place in late January/early February, 2013, at the Respondent's sister's house in Clemmons for approximately three hours and was supervised by Respondent's father and sister. When Petitioner suggested a longer visit, she was told by Respondent that he had to "work" that evening. The Court does find that a dispute arose between the Petitioner and Respondent's family which resulted in only limited contact with [Justin]; however, there has been absolutely no contact between Respondent and the minor child since late January/early February, 2013. Whereas Petitioner agreed to ongoing supervised visits, the Respondent wanted unsupervised weekend visits which Petitioner refused, stating she first wanted proof of his sobriety. As a result, all visits terminated.
It appears that this date is a scrivener's error. The undisputed evidence, as well as findings of fact 15 and 16, show that Respondent last saw Justin in early 2013.
Respondent also purports to challenge finding of fact 16, but does not set forth any argument as to why it is lacking in evidentiary support. We therefore treat it as an unchallenged finding of fact.
Additionally, Respondent challenges portions of findings of fact 8 and 11 which we find to be unnecessary to support the ground of willful abandonment. Because these portions are superfluous, we have omitted them from the recitation above. See In re T.M., 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006) ("[W]e agree that some of [the challenged findings] are not supported by evidence in the record. When, however, ample other findings of fact support an adjudication of neglect, erroneous findings unnecessary to the determination do not constitute reversible error.").
In finding of fact 8, Respondent first challenges the findings that he did not pursue visitation or initiate contact with Justin and that Petitioner arranged for visits between Respondent and his son. Respondent argues that these findings are not supported by the evidence because Petitioner merely testified that she drove Respondent to visits because he did not have a car. Respondent claims that the trial court cannot infer that Petitioner arranged for the visits simply because she drove him. We are not persuaded. Petitioner testified that she provided Respondent with visitation, even taking Justin to see Respondent at residential treatment facilities. Petitioner specifically testified that she initiated each visit, and that Respondent came to her mother's house once or twice, but only because she picked him up and brought him there. Petitioner continued to facilitate all of the visits between Respondent and Justin after she moved to Pfafftown in November 2011 until January 2013, when Respondent last saw Justin. We find this testimony sufficient to support the challenged finding of fact, and therefore reject Respondent's argument.
Respondent also takes exception to the court's finding that "Respondent had the means to make contact with the Petitioner because his sister and other family members had contact with the Petitioner." This finding, however, is also supported by the evidence. Respondent's stepmother testified that she knew Petitioner's e-mail address and where she worked. Additionally, Petitioner testified that she had the same cell phone number until November 2014, that she had her mail forwarded after moving from Pfafftown to Winston-Salem, and that she kept in touch with Respondent's sister until the summer of 2013. Therefore, the finding is supported by sufficient evidence. Finding of Fact 12
Respondent challenges the trial court's finding that he knew Petitioner worked at the Forsyth County Courthouse and made no inquiry about Justin upon seeing Petitioner there. Respondent does not appear to dispute the evidentiary support for this finding of fact, but rather argues that it would have been illogical for him to arrange visitation by approaching Petitioner at work. We reject his argument. First, we note that the finding is supported by sufficient evidence. Petitioner testified that in October 2014, Respondent saw Petitioner at work, and even asked her to borrow a stapler, but did not engage her in conversation regarding Justin. Second, it appears that in this finding, the trial court was simply trying to draw the inference that this encounter between Petitioner and Respondent would have given Respondent an opportunity to inquire into Justin's well-being—not that Respondent should have attempted to arrange visitation at that time. It also shows that Respondent knew where Petitioner worked and therefore had the ability to formally request visitation. The fact that Respondent took neither action supports the trial court's conclusion that he willfully abandoned Justin. Findings of Fact 13 and 14
In his final challenge to the findings of fact, Respondent takes issue with the trial court's findings that he "made no effort to establish or maintain any contact with his son for a period in excess of two years," and that he "by his own actions, chose to stop visits with his son rather than continuing the supervised visits that had been in place for over two years." Again, we find ample support for these findings in the record. Petitioner testified that she facilitated twice-monthly visits for Respondent until January 2013. At that time, Respondent requested unsupervised visitation. Petitioner did not agree to unsupervised visitation due to Respondent's history of substance abuse. Respondent refused supervised visitation and the visits then ceased. Thus, by the time of the hearing in June 2015, Respondent had not seen Justin in over two years. We therefore find clear, cogent, and convincing evidence to support these findings. Conclusion of Law
Respondent also challenges the trial court's conclusion that termination of his parental rights is supported by willful abandonment. He first argues that the trial court's conclusion is unsupported by the findings because the findings do not specifically reference the six-month period between 1 October 2014 and 1 April 2015. We disagree. All of the trial court's findings of fact look at Respondent's actions during the two-year period between the hearing and his last visit with Justin in early 2013. Although the trial court never specifically isolates the six-month period referenced in N.C. Gen. Stat. § 7B-1111(a)(7), its findings of fact naturally include the relevant time period. Indeed, the statute provides that the parent must willfully abandon the juvenile for "at least six consecutive months immediately preceding the filing of the petition . . . ." N.C. Gen. Stat. § 7B-1111(a)(7) (emphasis added). It does not prohibit the trial court from looking beyond the six-month period, and we therefore reject Respondent's argument.
Next, Respondent argues that while he did not see Justin during the relevant time period, his actions were not willful. Respondent claims that the evidence shows he had no way to establish contact with Justin because Petitioner prevented him from seeing Justin. Again, we disagree.
The findings of fact establish that Respondent ended visitation with Justin—visitation which Petitioner facilitated—after Petitioner rejected his bid for unsupervised visitation. Respondent never attempted to regain visitation, whether by informally contacting Petitioner or formally filing a civil action. We are not persuaded by Respondent's claim that he had no way to contact Petitioner. His family members had her contact information, he knew where she worked, and Petitioner had her mail forwarded after moving. Thus, the findings demonstrate that Respondent had no contact with Justin since early 2013, despite having the ability to maintain some level of contact with his son. See M.D., 200 N.C. App. at 43, 682 S.E.2d at 785-86 (holding that a father had willfully abandoned his children because he had not visited, spoken to, or sent any cards or gifts to them for several years despite having the ability to do so). Additionally, Respondent admitted that he had never sent Justin any cards or gifts and had paid virtually no child support. Id. Therefore, the findings of fact support the trial court's conclusion that Respondent willfully abandoned Justin pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). Accordingly, we find no error in the trial court's termination of Respondent's parental rights based on the ground of willful abandonment.
AFFIRMED.
Judges CALABRIA and DILLON concur.
Report per Rule 30(e).