In re K.N.E.S.

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of North Carolina.Mar 5, 2013
738 S.E.2d 829 (N.C. Ct. App. 2013)

No. COA12–1003.


In the Matter of K.N.E.S.

Angela M. Hatley for Petitioner–Appellee Mother. Mercedes O. Chut for Respondent–Appellant Father.

Appeal by Respondent–Father from order entered 5 June 2012 by Judge A. Elizabeth Keever in District Court, Cumberland County. Heard in the Court of Appeals 19 February 2013. Angela M. Hatley for Petitioner–Appellee Mother. Mercedes O. Chut for Respondent–Appellant Father.
McGEE, Judge.

Respondent–Father (Respondent) appeals from an order terminating his parental rights to K.N.E.S. (the juvenile). Respondent argues the trial court erred by concluding that grounds of neglect and willful abandonment existed to support the termination of his parental rights and by concluding that he willfully abandoned the juvenile when that ground was not alleged in the petition. We affirm.

The juvenile was born to Petitioner–Mother (Petitioner) and Respondent in Georgia in 2000. Petitioner and Respondent were not married, and Respondent did not initially acknowledge paternity. Petitioner married another man in 2004 and moved to North Carolina. Respondent last had contact with the juvenile in 2006, when Petitioner and her family took a trip to Georgia and sought out Respondent.

Petitioner filed a petition to terminate Respondent's parental rights on 29 February 2012. Petitioner alleged that Respondent had neglected the juvenile pursuant to N.C. Gen.Stat. § 7B–1111(a)(1), in that Respondent had not had contact with the juvenile in more than three years, had no meaningful relationship with the juvenile, and had not expressed any desire to have any contact or relationship with the juvenile. Respondent was appointed counsel. The record includes no evidence that Respondent answered the petition to terminate his parental rights.

A termination of parental rights hearing was held on 8 May 2012. Respondent was not present for the hearing, but was represented by counsel. In its written termination order (the order), the trial court found that the juvenile was neglected pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) and concluded that termination of Respondent's parental rights was in the best interest of the juvenile. Respondent appeals.

On appeal, Respondent primarily argues that the trial court erred by finding as a ground for neglect that Respondent had willfully abandoned the juvenile for a period of at least six consecutive months preceding the filing of the petition to terminate his parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(7). We find it dispositive that the evidence supports termination of Respondent's parental rights pursuant to N.C. Gen.Stat. § 7B–1111(a)(1) (2011), based on neglect due to abandonment. See In re Humphrey, 156 N.C.App. 533, 540, 577 S.E.2d 421, 426 (2003) (a finding of one statutory ground is sufficient to support the termination of parental rights). Accordingly, we do not address Respondent's arguments related to N.C. Gen.Stat. § 7B–1111(a)(7).

We note, however, that our reading of the order suggests that the trial court only found N.C.G.S. § 7B–1111(a)(1) as a ground for termination, and that the trial court unnecessarily, but without prejudice, included language related to willful abandonment from N.C .G.S. § 7B–1111(a)(7).

At the adjudicatory stage of a termination of parental rights hearing, the burden is on the Petitioner to prove by clear, cogent, and convincing evidence that at least one ground for termination exists. N.C. Gen.Stat. § 7B–1109(f) (2011); In re Blackburn, 142 N.C.App. 607, 610, 543 S.E.2d 906, 908 (2001). Review in the appellate courts is limited to determining whether clear and convincing evidence exists to support the findings of fact, and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C.App. 288, 291, 536 S.E.2d 838, 840 (2000).

A neglected juvenile is defined by statute, in relevant 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) (emphasis added). In the context of neglect:

Abandonment has been defined as “[willful] 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 [willfully] neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.”
156 N.C.App. at 540, 577 S.E.2d at 427 (citation omitted).

In the present case, the evidence is sufficient to support the trial court's findings of fact and its conclusion that the juvenile was neglected due to abandonment. Although the trial court labeled its conclusion of neglect as a finding of fact, rather than as a conclusion of law, we note that a finding of fact that is essentially a conclusion of law is treated by this Court, in conducting appellate review, as a conclusion of law. In re R.A.H., 182 N.C.App. 52, 60, 641 S.E.2d 404, 409 (2007).

In support of the above conclusion, the trial court found that Respondent had not had any contact with the juvenile since 2006, when Petitioner brought the juvenile to Georgia and initiated contact with Respondent; that Respondent “has made no efforts to maintain a relationship with the [juvenile] or establish custody or visitation rights”[;] that Respondent has not sent the juvenile any correspondence, gifts of any kind, including birthday or Christmas, and has not provided any “necessaries” for the juvenile since 2006; that Respondent had the ability to become involved in the juvenile's life, but “demonstrated a well settled intent not to be an active part of the life of the [juvenile][;]” that Respondent had Petitioner's telephone number but failed to contact Petitioner regarding the juvenile at any time since Petitioner had relocated to North Carolina; and that Respondent had accumulated an arrearage on his child support obligation, although Respondent had recently paid some support through money withheld from his unemployment benefits in Georgia.

The evidence at the termination hearing supports these findings. As the evidence demonstrates, all contact between Respondent and the juvenile had been initiated by Petitioner, and when Petitioner ceased making an effort to provide such contact, Respondent did nothing to continue his relationship with the juvenile. Accordingly, we hold the trial court properly found the ground of neglect by abandonment to terminate Respondent's parental rights, and we affirm the order terminating Respondent's parental rights. See Humphrey, 156 N.C.App. at 540–41, 577 S.E.2d at 427.

Affirmed. Judges HUNTER, ROBERT C. and ELMORE concur.

Report per Rule 30(e).