Opinion
No. COA09-1654
Filed 15 June 2010 This case not for publication
Appeal by Respondent-father from order entered 24 August 2009 by Judge Rebecca B. Knight in District Court, Buncombe County. Heard in the Court of Appeals 27 April 2010.
Matthew J. Putnam for petitioner-appellee Buncombe County Department of Social Services. Betsy J. Wolfenden for respondent-appellant father. Michael N. Tousey for the Guardian ad Litem to the respondent-appellee minor child.
Buncombe County No. 08 JT 181.
Our Courts have upheld determinations of neglect where a parent willfully abandons the child and fails to provide child support, to visit the child, to provide love and care, to contact the Department of Social Services ("DSS") regarding the child's welfare once DSS has intervened, and to participate in the court process terminating the parent's parental rights. Because Respondent-father Biaggio Withers does not contest the trial court's findings regarding each of the foregoing, we affirm the trial court's order terminating Respondent's parental rights on the basis of neglect.
The minor child, Walt, was born in May of 2001 in Buncombe County, North Carolina. He lived with his mother and Respondent until he was approximately a year and a half old. After Walt's parents separated, Respondent moved to New Bern, North Carolina. Respondent testified that until he lost contact with the mother, he visited Walt, sent letters and cards, and provided child support payments. Respondent was incarcerated several times intermittently between 2003 and 2006.
A pseudonym is used to protect the identity of the child.
At some point between 2002 and 2004, Walt's mother surrendered custody of Walt to Leslie Burnette Cerezo. Cerezo was granted legal guardianship of Walt in 2005 by a trial court in Leon County, Florida. In February 2008, Cerezo moved to Asheville, North Carolina, with Walt. On 6 May 2008, Cerezo called the Buncombe County Department of Social Services and said she could no longer care for Walt.
The record is inconsistent regarding the date Walt's mother relinquished custody. In its juvenile petition filed 29 May 2008, DSS refers to a Child Protective Services report received on 1 May 2008 alleging that in 2004 the mother's boyfriend abused the child and the mother asked the "reporter" (Cerezo?) to come and get the child, and the "reporter" has been the caretaker of the minor child since that date. But in the attached Affidavit as to Status of Minor Child, the social worker indicates that the child lived in Tallahassee, Florida with Cerezo from September 2002 until February 2008. A second Affidavit as to Status of Minor Child, apparently filed as an exhibit accompanying DSS's 14 January 2009 petition for termination of parental rights, states that Walt lived in Asheville with his mother from 2001 until 2004, and lived with Cerezo in Florida from 2004 until 2008.
On 29 May 2008, DSS filed a juvenile petition alleging that Walt was a neglected and dependent juvenile because Cerezo was engaging in domestic violence in front of Walt. The trial court did not immediately obtain non-secure custody of Walt; instead, DSS arranged a kinship placement with Jonathan and Jennifer Wike in Whittier, North Carolina.
On 31 July 2008, the trial court entered a non-secure custody order authorizing the placement of the juvenile with the Wikes. On the same day, the trial court held an adjudication hearing on the juvenile petition. The trial court contacted a judge in Leon County, Florida and obtained jurisdiction, since all parties now reside in North Carolina. By order filed 22 August 2008, the trial court indicated that Walt's mother told the court that Respondent had established his paternity of Walt through DNA testing. The trial court found as a fact that "[t]he whereabouts of the respondent father are unknown and [DSS] has made diligent efforts to locate the respondent father, with no success." The trial court adjudicated Walt neglected and approved his placement with the Wikes.
At some point after the adjudication hearing, the Wikes separated and Walt was placed in foster care. Walt's guardian ad litem recommended to the trial court that reunification efforts cease and that the permanent plan be changed to adoption with a concurrent plan of guardianship. The trial court held its first permanency planning hearing on 30 October 2008. The trial court found that Respondent had not been located, and it ceased reunification efforts with the parents.
The trial court held a permanency planning and review hearing on 20 November 2008. In an order dated 13 January 2009, the trial court found that "[t]he minor child's biological father has not yet been located, but many efforts continue." In December 2008, DSS located Respondent in Brevard, North Carolina. Respondent contacted DSS in January of 2009. Social Worker Julia Hoffert testified that Respondent never requested visitation but gave her a hundred dollars for Walt.
DSS filed a petition to terminate parental rights on 14 January 2009. Respondent appeared in court on 27 January 2009 at the First Appearance hearing on the termination petition. Respondent was appointed counsel and the trial court ordered that he participate in DNA testing.
On 27 February 2009, the trial court held another permanency planning and review hearing. Respondent appeared at the hearing. Respondent indicated to the trial court that he did not have contact with Walt because the mother secreted the child from him, but he did want contact with Walt. The trial court found as a fact that it was not possible to return Walt to either of his biological parents "as neither parent has had contact with [Walt] since at least July 5, 2005."
On 20 May 2009, the trial court held another permanency planning and review hearing. Respondent did not appear at this hearing. By order filed 25 January 2009, the court found that the test results from Respondent's paternity test were not yet available; Respondent has not been involved in the minor child's life since he was an infant; Respondent had not paid child support and had not contacted DSS about Walt's well-being; and Respondent had numerous charges pending, including drug charges. The trial court ordered that adoption was the best plan for Walt.
On 27 May 2009, the trial court continued the termination hearing. The trial court noted that the mother relinquished her parental rights to Walt on that day. The trial court also noted that Respondent's DNA results were not yet available. On 16 June 2009, the trial court again continued the termination hearing because Respondent's DNA results were not yet available. The trial court noted that the mother had relinquished her parental rights and the statutory time in which to revoke her consent had expired.
On 30 June 2009, it was determined through DNA testing that Respondent is Walt's biological father. On 17 July 2009 the trial court held a termination hearing. The trial court found that:
27. The respondent father and the respondent mother lived together when the minor child was born and then they separated. The respondent father testified he took care of the minor child when he was there and he paid child support before going to prison. The respondent father testified that when he went to prison he sent money to the minor child although there is no record of this money being sent and sending money to family members is prohibited by prison rules according to the respondent father.
28. While the respondent father believes he has done all he can do in this matter, it is evident that he has not. Upon being released from prison, the respondent father found the minor child in Florida, but he did not make contact with the State of Florida, he did not file motions for visitation with the minor child, he did not file motions to obtain custody of the minor child. The respondent father made no attempts to see the minor child.
29. In December of 2008 or January of 2009, the respondent father received a letter and telephone call from the Department and he agreed to participate in DNA testing. Though the respondent father had contact information for the Department and knew the Department was involved in the minor child's case, the respondent father never asked for service referrals or visits with the minor child. The respondent father has participated in ongoing criminal activity and he has a substance abuse assessment set up for August 2009 for an admitted problem with substance abuse.
30. By the respondent father's own testimony, he has not seen the minor child since the minor child was about a year and a half old. Occasionally sending money or cards to the minor child does not constitute regular contact with the minor child or a healthy father-son relationship. The respondent father became agitated during this hearing, and it is apparent the respondent father is passionate about the minor child; however, though the respondent father knew where the minor child was, he did not make attempts to see the minor child.
The trial court found two grounds existed to terminate Respondent's parental rights based on the foregoing: neglect under N.C. Gen. Stat. § 7B-1111(a)(1), and willful abandonment under N.C. Gen. Stat. § 7B-1111(a)(7). The trial court entered a written termination order on 24 August 2009. Respondent timely filed notice of appeal.
On appeal, Respondent argues that the trial court erred by concluding that he (I) neglected the minor child and (II) willfully abandoned the minor child when the findings and evidence were insufficient to support either conclusion. Respondent argues that termination of his parental rights, when the trial court's findings were not supported by the evidence, violated his constitutionally protected right to parent his son.
Preliminarily, we point out that termination of parental rights cases involve a two step process: (1) the adjudication phase to determine whether legal grounds exist to terminate parental rights; and (2) the disposition phase to determine whether termination is in the best interests of the child. In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003). The petitioner has the burden of proving by clear, cogent, and convincing evidence that at least one ground for termination exists. N.C. Gen. Stat. § 7B-1109(f)(2009); In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). We review the trial court's order to determine whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed, disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
I
Respondent first argues that the trial court erred by concluding that grounds existed under N.C. Gen. Stat. § 7B-1111(a)(1) for termination of Respondent's parental rights. That statute states:
(a) The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.
N.C. Gen. Stat. § 7B-1111 (a)(1) (2009). Neglect is statutorily defined elsewhere as:
Neglected juvenile.-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; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law. . . .
N.C. Gen. Stat. § 7B-101(15) (2009).
"Where, as here, a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the trial court must employ a different kind of analysis to determine whether the evidence supports a finding of neglect." In re Shermer, 156 N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003). This Court has indicated that prior adjudications of neglect "will rarely be sufficient, standing alone, to support a termination of parental rights, since the petition must establish that neglect exists at the time of hearing." Id. We have recognized that "the trial court must also consider evidence of changed conditions in light of the history of neglect by the parent and the probability of a repetition of neglect." Id. Finally, "visitation by the parent is a relevant factor in such cases." Id. at 286-87, 576 S.E.2d at 407.
In the present case, Respondent asserts "there is no evidence in the record Respondent-Father neglected [Walt] in the past, was neglecting him at the time of the termination hearing, or would neglect [Walt] in the future." The trial court explained its determination thus:
31. Pursuant to N.C.G.S. § 7B-1111(a)(1), the respondent father neglected the minor child as specified above. The respondent father has failed to participate successfully in court-ordered services and, as a result, has not corrected the conditions that brought the minor child into the Department's custody. The respondent father has failed to regularly pay child support for the benefit of the minor child since the minor child came into the Department's custody. The respondent father has failed to visit the minor child and, as a result, has abandoned the minor child. The respondent father has failed to provide any love, nurturance or care for the minor child. There is a reasonable likelihood of repetition of the neglect in that the respondent father has failed to successfully complete court ordered services, has never been in contact with the Department and has failed to participate in the court process, and events and the respondent father's actions since the adjudication in the underlying file through the hearing of this matter do not indicate any likelihood that the respondent father's behavior will change in the future.
Respondent argues that the trial court's finding that he "has failed to participate successfully in court-ordered services" is not supported by the evidence when there are no court orders in the record requiring his participation. Respondent argues that the trial court's finding that he "has not corrected the conditions that brought the minor child into the Department's custody" is not supported when he was not responsible for Cerezo's telling DSS she could no longer care for Walt — the condition which brought Walt into the Department's custody.
Even absent these contested findings, there is adequate evidence in the record and in the trial court's order to support a determination of neglect. The record shows Respondent failed regularly to pay child support for the benefit of the minor child since before the minor child came into the Department's custody. We have held that where a parent has income, failure to provide some financial aid supports a determination of neglect. In re Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 ("respondent neglected the minor child's welfare, in that he never paid any child support for the minor child and did not send the minor child any gift or other type of acknowledgment on her birthday."), affirmed per curiam, 357 N.C. 568, 597 S.E.2d 674 (2003).
The record further shows that though Respondent knew where Walt was, both in Florida and once Walt was placed in the custody of DSS, Respondent never attempted to visit. We have held that failing to visit or doing so rarely also supports a trial court's determination of neglect. "[R]espondent's willful failure to support his child or to visit him during this period, nothing else appearing, is sufficient evidence to support the judge's finding of neglect." In re Apa, 59 N.C. App. 322, 323, 296 S.E.2d 811, 812 (1982).
Moreover the trial court found that, as a result of failing to visit, Respondent abandoned the child. The § 7B-101(15) definition of neglect includes abandonment and does not include the six month interval required by the abandonment ground for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a)(7). By definition, abandonment means "wilful neglect and refusal to perform the natural and legal obligations of parental care and support." Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). This Court has upheld a determination of neglect where "[t]he evidence demonstrate[d] that respondent abandoned the child over a six-year period and ha[d] done nothing to fulfill her obligations as a parent." In re Humphrey, 156 N.C. App. 533, 541, 577 S.E.2d 421, 427 (2003). This was so despite the fact that the parent was then seeking visitation rights. Id.
Additionally, the trial court found that Respondent failed to provide any love or care for the minor child. "Neglect may be manifested in ways less tangible than failure to provide physical necessities. Therefore, on the question of neglect, the trial judge may consider, in addition, a parent's complete failure to provide the personal contact, love, and affection that inheres in the parental relationship." In re Apa, 59 N.C. App. at 324, 296 S.E.2d at 813; see also In re Bradshaw, 160 N.C. App. 677, 682, 587 S.E.2d 83, 86 (2003)("the undisputed findings of the trial court clearly show that respondent neither provided support for the minor child nor sought any personal contact with or attempted to convey love and affection for the minor child.").
Finally, the trial court found that Respondent has never been in contact with the Department and has failed to participate in the court process. Failure to contact DSS supported a conclusion of neglect in In re D.J.D., D.M.D., S.J.D., J.M.D., 171 N.C. App. 230, 240, 615 S.E.2d 26, 33 (2005)("[Respondent] also did not attempt to communicate with DSS regarding their [i.e. the children's] welfare nor did he attempt to contact them through family members, despite the fact that he testified that he wrote to his mother and girlfriend."). Failure to participate in the court process supported a finding of neglect in Whittington v. Hendren (In re Hendren), 156 N.C. App. 364, 368, 576 S.E.2d 372, 376 (2003) (upholding determination of neglect where respondent who was incarcerated requested that no action be taken to secure his presence at the hearing because he feared the loss of certain privileges in prison).
We recognize Respondent in the present case learned of the proceedings only after Walt had been adjudicated neglected. Indeed, Respondent "never made an appearance before [the trial court] until the petition for the termination of parental rights (TPR) was filed and the court appointed [counsel] to represent him in the matter." Still Respondent did not appear at the 20 May 2009 hearing and "[n]o information was available as to why the respondent putative father was not present at this hearing." Moreover, Respondent was not present at the disposition stage of the termination proceeding. He chose instead to see a friend in the hospital. The trial court noted that "[t]his is another example of the respondent father choosing others over his child."
While Respondent argues that the trial court erred in finding that he failed to participate in court-ordered services, he does not contest these other findings of the trial court. They are therefore binding on appeal. In re Humphrey, 156 N.C. App. at 541, 577 S.E.2d at 427. Additionally, each of these findings is supported by the evidence, and each supports the trial court's determination that grounds existed to terminate Respondent's parental rights on the basis of neglect. The trial court's finding of a reasonable likelihood of repetition of the neglect is likewise supported by the evidence.
II
Having concluded that the trial court did not err in finding grounds to terminate Respondent's parental rights under N.C. Gen. Stat. § 7B-1111(a)(1), we need not consider whether grounds also existed under N.C. Gen. Stat. § 7B-1111(a)(7). See In re J.M.W., E.S.J.W., 179 N.C. App. 788, 789, 635 S.E.2d 916, 917 (2006) ("A single ground under North Carolina General Statutes § 7B-1111 is sufficient to support an order terminating parental rights.")
Respondent argues that terminating his parental rights would violate his constitutional right to parent his child. Our Supreme Court has indeed held that "absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail." Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994). But when a parent neglects the welfare of his child, he waives his constitutionally protected status. In re Stratton, 153 N.C. App. 428, 433-34, 571 S.E.2d 234, 237, appeal dismissed, disc. review denied, 356 N.C. 436-37, 573 S.E.2d 512 (2002).
In sum, the trial court in this case found that grounds existed to terminate Respondent's parental rights on the basis of neglect. That conclusion is supported by clear and convincing evidence in the record. Accordingly, the trial court's order terminating Respondent's parental rights is,
Affirmed.
Judges CALABRIA and STEELMAN concur.
Report per rule 30(e).