Opinion
No. COA04-1036
Filed 19 April 2005 This case not for publication
Appeal by respondent-appellant from order entered 4 November 2003 by Judge Laura Bridges in District Court, Henderson County. Heard in the Court of Appeals 25 January 2005.
William L. Gardo II for petitioner-appellee. Carol Ann Bauer for respondent-appellant.
Henderson County No. 02-J-102.
Petitioner and respondent were married in 1995 and one child, K.E.C., was born of the marriage in June 1997. Shortly after K.E.C.'s birth, respondent left the marital home for a few weeks. Respondent had a long history of drug use and abuse, and throughout the first six months of K.E.C.'s life, respondent left the marital home several times to use drugs. When K.E.C. was approximately six months old, petitioner took respondent to live with respondent's mother in Asheville, North Carolina. Petitioner and K.E.C. continued to live in Murfreesboro, Tennessee. After that time, respondent saw K.E.C. only once when petitioner brought K.E.C. to visit respondent on a Mother's Day. The year of this visit is disputed.
Petitioner obtained a divorce from respondent in May 2000. Petitioner was granted custody of K.E.C. and respondent was ordered to pay $350.00 per month in child support. There is no evidence in the record that respondent contested this order. Petitioner testified that the order of divorce was served upon respondent.
In December 2000, respondent was sentenced to thirty to forty months in prison for forty counts of forgery and uttering. Respondent escaped from prison in August 2002 by walking away from a work release program and failing to return to prison after her shift. Respondent had left the work release program to go to a friend's house to do drugs.
Respondent never paid any child support before being incarcerated and did not pay any child support from her earnings from the work release program.
Petitioner filed a petition to terminate respondent's parental rights on 7 October 2002. A hearing was held on 23 October 2003 and the trial court made the following findings of fact based on clear, cogent, and convincing evidence:
4. That [respondent] has a long running history of drug use and abuse.
5. That approximately three weeks after the minor child K.E.C. was born, [respondent] . . . stole [petitioner's] car, and ran off from the marital home in Murfreesboro, Tennessee, to do drugs with her friends in Nashville, Tennessee. [Petitioner] was left alone with the infant child, and did not hear from [respondent] for approximately two weeks.
6. That over the next six months after the minor child was born, [respondent] ran off from the marital home several times, leaving the minor child, K.E.C., with [petitioner]. The reason she kept leaving the home was to do drugs, primarily dilaudid, cocaine, crack-cocaine, valium, and pain pills.
7. That in order to finance her drug use, [respondent] stole [petitioner's] credit card, and stole and pawned his [stepfather's] ring, his television, stereo, camera, silverware, among other items.
8. After the minor child was approximately [six] 6 months old [petitioner] brought [respondent] to live with her mother in Asheville, NC. [Petitioner] and the minor child, K.E.C., stayed in Murfreesboro, Tennessee where he worked as a technician for the Nissan Corporation.
9. That [respondent] has seen the minor child, K.E.C., only once since she was approximately six months old, when [petitioner] brought [K.E.C.] to Asheville, North Carolina, to visit [respondent].
10. That [respondent] has had no relationship whatsoever with the minor child in the last five years.
11. That on May 19, 2000, a Divorce Decree was entered in Murfreesboro, Tennessee, which granted [petitioner] a divorce from [respondent], awarded [petitioner] absolute custody of the minor child, K.E.C., and ordered [respondent] to pay [petitioner] child support at the rate of $350.00 per month beginning June 1, 2000.
12. That [respondent] was served with the Tennessee Divorce Decree in May, 2000.
13. [Respondent] admitted that she was served with the Tennessee Divorce Decree in July, 2000.
14. In December, 2000, [respondent] was sentenced to (36) thirty-six months to (40) forty months imprisonment, for forty counts of forgery and uttering in Buncombe County. [Respondent] is currently incarcerated in Raleigh at the North Carolina Institute for Women, serving out said sentence.
15. That in August, 2002, [respondent] escaped from prison, by walking away from a work release job and failing to return to the prison at the end of her work shift. [Respondent] admitted that she went to the home of one of her coworkers at the deli where she was doing work release, in order to do drugs. She turned herself in several days later, and subsequently pled guilty to escape from prison.
16. [Respondent] did not pay any child support to [petitioner] prior to the commencement of her incarceration, nor did she pay any child support while she was on work release.
The trial court concluded that there were grounds to terminate respondent's parental rights, including that respondent had willfully neglected and willfully abandoned K.E.C. The trial court terminated respondent's parental rights in an order entered 4 November 2003. Respondent appeals.
I.
Respondent first argues that the trial court erred in making findings of fact and conclusions of law that were not supported by the evidence. At the adjudication portion of a termination of parental rights hearing, the trial court must "take evidence, find the facts, and . . . 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) (2003). The trial court has a duty to make an independent determination of the existence of one or more of the grounds for termination, or to make `specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.'
In re C.Y.P., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (NO. COA04-207) (filed 18 January 2005) (quoting Moore v. Moore, 160 N.C. App. 569, 571, 587 S.E.2d 74, 75 (2003)). The trial court need not make findings of fact beyond those required "to establish [petitioner's] cause of action or [respondent's] defense[,]" i.e., ultimate facts. Smith v. Smith, 336 N.C. 575, 578-79, 444 S.E.2d 420, 422 (1994) (citations omitted). On appeal, "we must review the evidence in order to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law." In re Montgomery, 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984). We are concerned only with the findings of fact that are ultimate facts that "are determinative of the questions involved . . . and essential to support the conclusions of law reached." See Moore, 160 N.C. App. at 571, 587 S.E.2d at 75.
The ultimate issue in the adjudication portion of a termination of parental rights case is whether grounds for termination are supported by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 7B-1111 (2003). In the present case, the ultimate issues are whether respondent "willfully neglected" K.E.C., "willfully abandoned" K.E.C., and/or "willfully failed without justification to pay for the care and support of" K.E.C. for more than one year preceding the filing of the petition to terminate respondent's parental rights.
Several of respondent's assignments of error do not pertain to ultimate issues. Specifically, respondent cites as error four findings of fact, or parts thereof, that are not ultimate facts. Respondent first asserts that in finding of fact number five, the trial court's finding that respondent left the marital home "to do drugs with her friends in Nashville, Tennessee" was not supported by the evidence. She similarly asserts that findings of fact numbers twelve and thirteen, regarding the service upon her of the divorce decree, are not supported by the evidence. Finally, respondent cites as error the trial court's finding that she "was sentenced to (36) thirty-six months to (40) forty months imprisonment[,]" when she was actually sentenced to thirty to forty months in prison. All of these findings of fact are subsidiary to the ultimate issue in this matter, as they do not bear on the trial court's evaluation of factors in N.C. Gen. Stat. § 7B-1111. Subsidiary or evidentiary facts included in the trial court's order for termination of parental rights need not be supported by clear, cogent and convincing evidence, and are binding on appeal. Thus, we overrule respondent's above assignments of error regarding these subsidiary findings of fact.
We next review respondent's remaining assignments of error regarding the trial court's findings of fact on ultimate issues. Respondent argues that the trial court erred when it found in finding of fact number nine that respondent "has seen the minor child, K.E.C., only once since she was approximately six months old." Respondent argues that this finding of fact was not supported by the evidence because respondent "testified that she saw K.E.C. on Mother's Day of 2000" at which time K.E.C. would have been one month shy of being three years old. It is uncontested that petitioner brought respondent to live with respondent's mother when K.E.C. was approximately six months old. Furthermore, though the parties dispute what year it occurred, they agree that petitioner brought K.E.C. to visit respondent on one Mother's Day, sometime after respondent was no longer living with petitioner and K.E.C. Since respondent presented no evidence of another visit between respondent and K.E.C., the evidence clearly shows that this Mother's Day visit was the "once" to which the trial court referred in its finding of fact.
Respondent next asserts that in finding of fact number ten, the trial court's finding that respondent "has had no relationship whatsoever with the minor child in the last five years" is not supported by the evidence. We disagree. K.E.C. was born on 25 June 1997 and the termination of parental rights hearing occurred six years and four months later, on 23 October 2003. The evidence is uncontroverted that respondent had seen K.E.C. only once since K.E.C. was approximately six months old. Contrary to what respondent contends, one visit does not constitute a relationship, especially in light of the fact that respondent did not provide for any care or support of K.E.C., and never had any other contact with K.E.C. Respondent further asserts that she tried to send letters to K.E.C., but the letters were returned or torn up by petitioner's present wife, D.C. Evidence at trial showed that respondent claimed to have sent a few letters before she was incarcerated. After she was incarcerated, she tried to contact K.E.C. only through respondent's mother. Respondent's mother testified that respondent gave her some cards for K.E.C., which she sent to petitioner's mother, but that these cards were returned. However, only one returned letter, dated September 2001, was offered into evidence. Petitioner testified that to his knowledge, respondent had never sent any letters or gifts for K.E.C.D.C. testified that "a year or so" before the termination of parental rights hearing, petitioner's mother received a few cards for K.E.C. from respondent's mother, which petitioner's mother gave to D.C.D.C. admitted to tearing up these cards. Respondent's mother also testified that she had tried to leave gifts for K.E.C. at petitioner's mother's house but that she did not get to leave them. However, even when all of this evidence is viewed in a light most favorable to respondent, attempted contacts do not indicate that respondent had a relationship with K.E.C. Thus, the trial court's finding of fact that respondent did not have a relationship with K.E.C. is supported by clear, cogent, and convincing evidence.
Respondent also argues that the trial court's finding of fact number twenty-two was not supported by the evidence. Finding of fact number twenty-two stated:
The Court finds as a fact and as a necessary conclusion of law that there are grounds to support the termination of [respondent's] parental rights. [Respondent] has had no relationship with the minor child in the last five years. That there existed adequate grounds to terminate her parental rights before she went to prison. She paid no child support before going to prison and made no child support payments while she was on work release. The fact that [respondent] escaped from prison and could no longer work on work release demonstrates a willfulness of action in her neglect of the minor child.
Evidence clearly, cogently, and convincingly supported the finding that respondent had not had a relationship with K.E.C. since K.E.C. was approximately six months old. Furthermore, respondent concedes that she did not provide any care or support of K.E.C., either before respondent was incarcerated or while she was on work release. Respondent asserts that she was unable to make the payments because she was earning so little on work release. However, respondent fails to explain why she paid no child support before she was incarcerated. She contends that the Tennessee trial court granting the divorce and ordering respondent to pay child support never found that respondent had the ability to pay child support, but there is no evidence that respondent ever challenged the order requiring her to pay $350.00 per month in child support. Moreover, our Court has held that being on work release affords a respondent "an opportunity to provide for some portion of the cost of care of the child." In re Bradley, 57 N.C. App. 475, 479, 291 S.E.2d 800, 802 (1982). When, as in this case, the parent "forfeits that opportunity by his or her own misconduct, such parent will not be heard to assert that he or she has no ability or means to contribute to the child's care and is therefore excused from contributing any amount." Id. at 479, 291 S.E.2d at 802-03. Finally, respondent argues that the trial court erred in its finding of fact number twenty-three, which stated:
The Court finds as a fact and as a necessary conclusion of law that [respondent] has neglected the minor child in that she has not provided any parental guidance, personal contact, love or custodial/spiritual support for more than six months prior to the filing of this petition to terminate parental rights.
Respondent asserts that the evidence cannot support this finding when, in fact, she was in prison for the six months prior to the petition being filed. She also contends that she was prevented from having greater contact with K.E.C. as evidenced by D.C. tearing up the letters respondent had sent to K.E.C. However, the evidence is clear that from the time that respondent was taken to live with her mother until the time that she was incarcerated, respondent did not attempt to remain in contact or spend time with K.E.C. The only time respondent even saw K.E.C. during that time, was the one Mother's Day when petitioner, on his own volition, brought K.E.C. to visit with respondent. The evidence showed that after being incarcerated, respondent made a few indirect attempts to send cards to K.E.C., but never tried to make telephone calls, never contacted petitioner, and never expressed by any other means a desire to build a relationship with K.E.C. As such, the trial court's finding that respondent had "neglected the minor child in that she had not provided any parental guidance, personal contact, love or custodial/spiritual support for more than six months prior to the filing of this petition to terminate parental rights" was supported by clear, cogent, and convincing evidence.
II.
Respondent next argues that the trial court's conclusions of law were not supported by the evidence. N.C. Gen. Stat. § 7B-1111 (2003) sets forth the grounds for which parental rights may be terminated. The grounds relevant to the present case are as follows:
(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.
. . . .
(4) One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement.
. . . .
(7) The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B-500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.
N.C.G.S. § 7B-1111(a). As to these grounds, the trial court made the following conclusions of law:
a) That [respondent] has willfully neglected the child within the meaning of N.C.G.S. § 7B-1111(a)(1).
b) That [respondent] has willfully abandoned the child for at least six consecutive months immediately preceding the filing of this order, within [the] meaning of N.C.G.S. § 7B-1111(a)(7).
c) That [petitioner] father has been awarded custody of the minor child per judicial decree, and that [respondent] mother, has for more than one year next preceding the filing of this Petition, willfully failed without justification to pay for the care and support of the minor child, as required by the judicial decree (N.C.G.S. § 7B-1111(a)(4)).
d) That it is in the best interest of the minor child, K.E.C., that the parental rights of [respondent] be terminated.
Respondent argues that she did not willfully neglect or abandon K.E.C. because the facts show that petitioner removed respondent from the marital home and took respondent to live with respondent's mother in Asheville, North Carolina. Respondent further asserts that her efforts to make contact with petitioner or K.E.C. were "thwarted" by petitioner and his family, because petitioner talked to respondent "[v]ery little" when respondent tried to call petitioner, and because the cards that respondent sent were returned or destroyed. For these reasons, respondent submits that the trial court's conclusions of law (a) and (b) were not supported by the evidence. We disagree.
A juvenile is deemed neglected when the juvenile "does not receive proper care, supervision, or discipline from the juvenile's parent," or if the juvenile "has been abandoned." N.C. Gen. Stat. § 7B-101(15) (2003). As discussed above, the facts clearly, cogently, and convincingly support the finding that "[r]espondent has neglected the minor child in that she has not provided any parental guidance, personal contact, love or custodial/spiritual support for more than six months prior to the filing of this petition to terminate parental rights. "Thus, the conclusion of law that respondent had neglected K.E.C. is supported by the evidence.
Respondent's contention regarding the conclusion that she willfully abandoned K.E.C. is equally unfounded.
Abandonment 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 Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982) (quoting In re Cardo, 41 N.C. App. 503, 507-08, 255 S.E.2d 440, 443 (1979)). The evidence is clear that respondent abandoned her legal obligations of parental care soon after K.E.C. was born when respondent left the marital home on several occasions to use drugs. Respondent argues that she "no longer has a drug problem." Nevertheless, the evidence shows that while incarcerated, respondent took only minimal steps to provide K.E.C. with love, care or filial affection. Furthermore, respondent abandoned her obligation to support K.E.C. by not paying any child support, even when she was earning money through work release, as minimal as that wage might have been. Thus, the trial court's conclusion that respondent had willfully abandoned K.E.C. for at least the six months prior to the filing of the termination of parental rights petition was supported by the evidence.
Respondent also challenges the trial court's final two conclusions of law as not being supported by the evidence. Specifically, respondent argues that the trial court could not conclude that her parental rights could be terminated for failure to pay child support, when it did not find as fact her ability to pay. See In re Ballard, 311 N.C. 708, 716-17, 319 S.E.2d 227, 233 (1984) (stating that the trial court must find that a parent is able to pay child support to terminate parental rights on this ground of nonsupport). Respondent also argues that the conclusion of law that the best interests of K.E.C. required termination of respondent's parental rights is not a proper ground for termination under N.C.G.S. § 7B-1111. While both of these assertions may be correct statements of law, they are moot. N.C.G.S. § 7B-1111 stipulates that only one ground needs to be found for the trial court to terminate parental rights. N.C.G.S. § 7B-1111(a). In the present case, the trial court found that two grounds existed; namely, that respondent both neglected and willfully abandoned K.E.C. Since both of these grounds were clearly, cogently, and convincingly supported by the evidence, they are upheld on appeal.
III.
Finally, respondent argues that the trial court abused its discretion in finding that terminating respondent's parental rights was in K.E.C.'s best interest. A termination proceeding involves two stages; those stages being adjudication and disposition. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). As discussed above, in the adjudication portion of the proceeding, the trial court must find at least one ground for the termination of parental rights, as set forth in N.C.G.S. § 7B-1111(a), by clear and convincing evidence. Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. If one or more grounds for termination of parental rights are established by clear and convincing evidence, then the trial court proceeds to the disposition portion of the proceeding. Id. In its disposition, the trial court must consider the best interests of the child, and it "shall issue an order terminating the parental rights unless it further determines that the best interests of the child require otherwise." Id.; see also N.C. Gen. Stat. § 7B-1110(a) (2003). The trial court's decision to terminate parental rights is discretionary and "is reviewed on an abuse of discretion standard." In re McMillon, 143 N.C. App. 402, 408, 546 S.E.2d 169, 174, disc. review denied, 354 N.C. 218, 554 S.E.2d 169 (2001). A trial court's decision "is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason." Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980).
In the present case, we fail to see how the trial court's decision regarding K.E.C.'s best interests was devoid of reason. Contrary to respondent's claim that the trial court made no findings of fact to support its conclusion that K.E.C.'s best interests lay in terminating respondent's parental rights, the trial court made several findings of fact on this issue. In addition to the findings of fact discussed above, the trial court found:
17. That [petitioner] has remarried to [D.C.], who is a stay at home housewife and mother to K.E.C. [Petitioner] and [D.C.] were married November 23, 2001 and dated for two years before their marriage.
18. [D.C.] has been a mother figure to K.E.C. for the past four years. K.E.C. refers to [D.C.] as "Mom," and K.E.C. tells everyone that [D.C.] is her mother. That [D.C.] is the only mother figure K.E.C. has ever known.
19. That [petitioner] and his wife, [D.C.], own their own brick home in the Etowah Community in Henderson County.
20. K.E.C. is now a normal six year old child enrolled in the first grade in Etowah Elementary School. She is doing well, and is involved in extra curricular activity such as soccer, softball, and the girl scouts.
21. The minor child, K.E.C., is in a very secure and stable environment. [Petitioner] and his wife D.C. have a very close and caring relationship with K.E.C.
Taken together with the facts concerning respondent, we find no abuse of discretion in the trial court's decision to terminate respondent's parental rights.
Respondent, however, argues that this case is similar to that of Bost v. Van Nortwick, in which this Court found that the trial court had abused its discretion. 117 N.C. App. 1, 449 S.E.2d 911 (1994). Specifically, respondent directs us toward our language saying that "a finding that the [child is] well settled in [her] new family unit . . . does not alone support a finding that it is in the best interest of the [child] to terminate respondent's parental rights." Bost, 117 N.C. App. at 8, 449 S.E.2d at 915. Bost is distinguishable from the case before us for several reasons. First, the trial court not only found that K.E.C. was well settled into her home with petitioner and D.C., but also found that respondent did not have a relationship with K.E.C. The trial court further found that respondent had willfully neglected and abandoned K.E.C. As we mentioned above, the combination of all of these facts fully support the trial court's decision to terminate respondent's parental rights.
Second, while the respondent in Bost had once been unable to maintain employment or relationships with the children because he was an alcoholic, the evidence also showed that the respondent had ceased using alcohol a couple of years before the petition to terminate his parental rights was filed, had paid large sums of back child support, and had begun to visit the children. Id. at 5-6, 449 S.E.2d at 913-14. By contrast, in the present case, despite claiming that she "no longer [had] a drug problem[,]" respondent did not pay child support even though she was on work release, and did not make a concerted effort to begin to develop a relationship with K.E.C. while respondent was incarcerated.
Finally and most importantly, a significant difference between these cases is that in Bost, the guardian ad litem and a court-appointed psychologist thought it in the best interest of the children to not terminate the respondent's parental rights. Id. at 9, 449 S.E.2d at 916. Whereas in the present case, the guardian ad litem recommended that it would be in K.E.C.'s best interest to terminate respondent's parental rights.
Thus, we conclude that the trial court did not abuse its discretion in deciding that K.E.C.'s best interests were served by terminating respondent's parental rights.
Respondent does not offer any arguments for her assignments of error numbers one and two, and they are taken as abandoned pursuant to N.C.R. App. P. 28(b)(6).
Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).