In re: S.R. ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-285
No. COA21-633
Filed 3 May 2022
Granville County, No. 20 JT 36
IN THE MATTER OF:
S.R.
Appeal by petitioner from Order entered 8 June 2021 by Judge Caroline S.
Burnette in Granville County District Court. Heard in the Court of Appeals 8 March
2022.
Edward Eldred for petitioner-appellant.
Lisa Anne Wagner for respondent-appellee.
GORE, Judge.
¶1 Petitioner Tiffany Roberto, Sarah’s1 mother, appeals from an order entered
declining to terminate respondent Bruce Savard’s, Sarah’s father, parental rights.
We affirm.
I. Background
¶2 Ms. Roberto and Mr. Savard were married and during that marriage they had
a child, Sarah, who was born on 23 April 2014. The day before Sarah was born, an
incident occurred between Ms. Roberto and Mr. Savard. During this incident, Mr.
1 A pseudonym is used to protect the identity of the juvenile.
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Savard was holding a gun and threatened to kill himself. Ms. Roberto called a friend,
Joe Roberto, who arrived at her and Mr. Savard’s home, talked to Mr. Savard, and
eventually was able to take the firearm away from Mr. Savard. After Joe Roberto
arrived, Mr. Savard went inside the home and laid down on the couch.
¶3 Shortly after Sarah’s birth, in June 2014, Ms. Roberto sought out and received
an ex parte domestic violence protective order (“DVPO”) against Mr. Savard.
Following the entry of the DVPO Mr. Savard and Ms. Roberto separated. Mr. Savard,
who was an active duty member of the United States Marines at the time, went back
to living on the military base. Ms. Roberto moved out of the home she shared with
Mr. Savard and moved into a spare room in Joe Roberto’s home. Ms. Roberto and Mr.
Savard were divorced on 8 June 2016. Ms. Roberto and Joe Roberto were married on
22 November 2016.
¶4 Following the entry of the DVPO in 2014, Ms. Roberto petitioned for child
support and medical insurance coverage. An Order was entered requiring Mr. Savard
to pay child support and provide medical insurance for Sarah. Mr. Savard left
military service approximately one month after the Order requiring he pay child
support was entered. In the time immediately following his service in the military
Mr. Savard attended trade school. During his time in school Mr. Savard was unable
to pay child support. However, once he became gainfully employed Mr. Savard began
paying child support through garnishment from his wages. Sometime around the end
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of 2018, Ms. Roberto moved to have child support payments removed from North
Carolina Centralized Collections and require Mr. Savard to pay child support upon
his own volition. Once Mr. Savard no longer had the ability to provide child support
through garnishment of his wages child support payments stopped.
¶5 On 13 October 2017, Mr. Savard filed a Motion seeking to amend child custody,
child support, and seeking temporary visitation. As a part of that proceeding, Mr.
Savard did not timely respond to Ms. Roberto’s request for discovery. As a result, the
trial court in that matter dismissed Mr. Savard’s Motion.
¶6 On 22 June 2020, Ms. Roberto petitioned to terminate Mr. Savard’s parental
rights. Ms. Roberto alleged that grounds exist to terminate Mr. Savard’s parental
rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (4), and (7) for neglect of the
juvenile, failure to pay child support, and willful abandonment of the juvenile. Mr.
Savard filed his Answer to Ms. Roberto’s Petition on 10 September 2020. The matter
was heard before the trial court on 28 January 2021 and 18 March 2021. Following
the hearing, in an Order entered 8 June 2021, the trial court denied Ms. Roberto’s
Petition, concluding grounds did not exist to terminate Mr. Savard’s parental rights.
Ms. Roberto entered timely Notice of Appeal on 7 July 2021.
II. Standard of Review
¶7 A termination of parental rights proceeding involves two separate analytical
phases: an adjudication stage and a dispositional stage. In re Blackburn, 142 N.C.
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App. 607, 610, 543 S.E.2d 906, 908 (2001). A different standard of review applies to
each phase. The present case did not proceed past the adjudication stage, thus, our
discussion only regards the adjudication stage.
¶8 “At the adjudication stage, the party petitioning for the termination must show
by clear, cogent, and convincing evidence that grounds authorizing the termination
of parental rights exist.” In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997).
“The standard for review in termination of parental rights cases is whether the
findings of fact are supported by clear, cogent, and convincing evidence and whether
these findings, in turn, support the conclusions of law.” In re Clark, 72 N.C. App. 118,
124, 323 S.E.2d 754, 758 (1984).
III. Termination of Parental Rights
¶9 On appeal, Ms. Roberto argues that (1) certain findings of fact are not
supported by clear, cogent, and convincing evidence and (2) that the conclusion of law
that no grounds for termination of parental rights exist is not supported by the
findings of fact. We address these arguments in turn.
A. Findings of Fact
¶ 10 In her argument on appeal, Ms. Roberto argues that findings of fact 12, 13, 15,
25, 27, 29, 30, and 36 are not supported by clear, cogent, and convincing evidence.
¶ 11 “A trial court’s finding of fact that is supported by clear, cogent, and convincing
evidence is deemed conclusive even if the record contains evidence that would support
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a contrary finding.” In re B.O.A., 372 N.C. 372, 379, 831 S.E.2d 305, 310 (2019). “It is
the trial court’s duty, however, to consider the evidence and pass upon the credibility
of the witnesses and this Court will not reweigh the evidence.” In re L.H., 378 N.C.
625, 636, 2021-NCSC-110, ¶ 16 (internal citation omitted).
¶ 12 We discuss each challenged finding in turn (the specific portions of each finding
which are challenged are noted in italics).
1. Finding of Fact 12
¶ 13 Finding of fact 12 states:
The day before [Sarah] was born, Mr. Savard had a mental
health break and threatened to kill himself. Ms. Roberto
immediately called Joe who arrived at the home. When he
arrived at the home, Ms. Roberto jumped into his car. Mr.
Savard was in the front doorway with a gun in his hand.
He was not threatening or combative. Joe got him into the
house, took the gun and found the shotgun he bought Mr.
Savard as a Christmas present and removed them from the
home.
¶ 14 Ms. Roberto asserts that the evidence cannot sustain the finding that Mr.
Savard “was not threatening or combative” with Ms. Roberto the day before Sarah
was born.
¶ 15 At the termination of parental rights hearing, Mr. Savard testified that
[t]he gun was down at my side, finger straight and off the
trigger, and I said “Does it look like I’m serious now?” And
when I realized that I was holding the gun, I broke out into
tears, and I had set the firearm on the dresser that was
right next to the front door, and I had laid down on the
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couch crying my eyes out, and Joe [Roberto], he had came
in, took the gun, and said “If you would pointed that at us,
I would have shot you and killed you.”
Mr. Savard testified that he was contemplating suicide and never pointed the gun at
Ms. Roberto.
¶ 16 In contrast, Joe Roberto testified that, “[Mr. Savard] had followed her outside
holding a handgun [up], yelling to her, ‘Do you think I’m serious now,’ or ‘Does it look
like I’m serious?’” Joe Roberto testified that after talking to Mr. Savard, he put the
handgun down, went inside the house, and laid face down on the couch.” Ms. Roberto
did not testify about this incident.
¶ 17 Additionally, the DVPO Ms. Roberto received against Mr. Savard stated that
in April 2014, Mr. Savard “loaded [a] handgun [and] cocked it and said ‘Do I look
serious now?’” Finally, progress notes from Mr. Savard’s mental health treatment
state that on 23 April 2014, in response to an argument with Ms. Roberto, Mr. Savard
“pulled out a gun.”
¶ 18 Ms. Roberto asks us to reweigh this evidence and conclude that Mr. Savard
was threatening or combative during the incident in question. However, it is not this
Court’s role to assess the evidence and, where there is conflicting evidence, assign
weight or credibility to the evidence; that role is reserved for the finder of fact, in this
case the trial court. See In re L.H., 378 N.C. at 636, 2021-NCSC-110, ¶ 16.
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¶ 19 Our review of the record reveals that the trial court assigned more weight to
Mr. Savard’s account of the incident at the root of finding of fact 12. Mr. Savard’s
account of the incident reveals that, even though he was holding a firearm, his finger
was not on the trigger of the firearm, the firearm remained at his side and was not
pointed at anyone, and his statement, “Does it look like I am serious now?” pertained
to Mr. Savard’s threat to take his own life. The trial court clearly took this evidence
to show that Mr. Savard was not threatening or combative towards Ms. Roberto.
Thus, we conclude that finding of fact 12 is supported by clear, cogent, and convincing
evidence.
2. Finding of Fact 13
¶ 20 Finding of fact 13 states:
The day after [Sarah] was born, Mr. Savard’s mother drove
from Illinois to North Carolina to meet [Sarah] and spend
time with her. While Mr. Savard’s mother was in North
Carolina, Ms. Roberto had a daily routine of taking the
newborn [Sarah] to Joe’s house and staying all day. Mr.
Savard’s mother was only able to spend one day with
[Sarah] while she was in North Carolina and that was one
afternoon. Ms. Roberto has no recollection of this and Mr.
Savard’s mother’s accounts of this week were
uncontroverted.
¶ 21 On appeal, Ms. Roberto acknowledges that Mr. Savard’s mother testified that
Ms. Roberto went to a friend’s house all but one day during the visit. However, Ms.
Roberto argues that the trial court erred in finding that Mr. Savard’s mother’s
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accounts of the week were uncontroverted because “both Ms. Roberto and Joe Roberto
testified differently.” Ms. Roberto’s argument fails to recognize that Ms. Roberto
testified that she did not remember leaving the home while Mr. Savard’s mother was
visiting and Joe Roberto only testified that Ms. Roberto did not spend the entire day
at his house each day that week. There was no evidence as to Ms. Roberto’s actions
during the week Mr. Savard’s mother visited aside from the testimony of Mr. Savard’s
mother. Additionally, the testimony cited by Ms. Roberto is far from sufficient to
contradict the testimony of Mr. Savard’s mother.
¶ 22 Ms. Roberto’s arguments on appeal, at best, support striking the final sentence
of finding of fact 13. This would leave the substance of the finding unchanged. The
substance of finding of fact 13 is supported by Mr. Savard’s mother’s testimony. Any
conclusion otherwise would require this court to reweigh the evidence. Thus, we
conclude that finding of fact 13 is supported by clear, cogent, and convincing evidence.
3. Finding of Fact 15
¶ 23 Finding of fact 15 states:
Ms. Roberto was granted a permanent one-year domestic
violence protective order against Mr. Savard. Ms. Roberto
was granted temporary physical and legal custody of
[Sarah]. It was noted in the order that Mr. Savard acted
irrationally and aggressively at the hearing. Mr. Savard
was ordered to take a psychological evaluation before
requesting mediation for unsupervised visitation. Mr.
Savard was allowed supervised visits to be supervised by
Ms. Roberto’s parents who lived in Sanford, North
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Carolina.
¶ 24 Ms. Roberto asserts that the DVPO did not state that Mr. Savard acted
irrationally and aggressively at the DVPO hearing. This is true. The DVPO states
“[Mr. Savard] appears to the Court to be in need of mental health treatment based on
Court’s observations of defendant in Court as well as witness descriptions of incidents
set out above.” However, the words “irrationally and aggressively” do not appear
anywhere in the DVPO. Thus, we conclude that the challenged portion of finding of
fact 15 is not supported by clear, cogent, and convincing evidence.
4. Finding of Fact 25
¶ 25 Finding of fact 25 states:
Mr. Savard was under the impression that he was no longer
required to pay child support as Ms. Roberto never informed
him that he as [sic] not make payments directly to her after
his child support case was closed.
¶ 26 Our review of the record does not reveal any testimony or evidence that Mr.
Savard believed he was no longer required to pay child support. Mr. Savard testified
that he had no problem with child support being taken from his paycheck by the child
support agency, Ms. Roberto offered to forgive all child support if he relinquished
parental rights, and that he is currently willing and able to provide child support.
Ms. Roberto testified that when Mr. Savard texted her to ask her where he was
supposed to send child support to, she responded ten days later with her mother’s
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address. Thus, we conclude that this finding of fact is not supported by clear, cogent,
and convincing evidence.
5. Finding of Fact 27
¶ 27 Finding of fact 27 states:
In 2017, Mr. Savard hired an attorney to modify the child
custody in Onslow county. He hired an attorney. The
matter was dismissed. It is unclear from the record and
testimony why it was dismissed; however, it looks like
procedural issues.
¶ 28 Ms. Roberto asserts that contrary to the language of finding of fact 27, it is
readily apparent that Mr. Savard’s custody action was dismissed because he failed to
comply with the trial court’s order compelling discovery.
¶ 29 It appears clear to this Court, from the face of the trial court’s Order, that Mr.
Savard’s Motion to Modify Custody and Child Support was dismissed based on Ms.
Roberto’s Motion to Dismiss for failure to comply with discovery requests, despite Mr.
Savard providing the requested information after the time frame designated in the
motion to compel expired. Thus, we conclude the challenged portion of finding of fact
27 is not supported by clear, cogent, and convincing evidence.
6. Finding of Fact 29
¶ 30 Finding of fact 29 states:
Throughout 2015 – 2019, Mr. Savard sent Ms. Roberto text
messages wishing her happy birthday, asking about
[Sarah] and asking to talk. The only time Ms. Roberto
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responded was when she asked Mr. Savard about
relinquishing his parental rights. Ms. Roberto knew how to
reach out to Mr. Savard when it benefited her but ignored
him at all other times which also benefited her agenda
which was to terminate his parental rights.
¶ 31 Ms. Roberto primarily focuses on the trial court’s use of the word “agenda,”
arguing that the uncontroverted evidence in the case only established that on at least
three occasions Mr. Savard committed acts of violence towards Ms. Roberto. However,
the trial court, as finder of fact in a termination of parental rights case, cannot rely
solely on uncontroverted evidence. Instead, the trial court must consider all evidence
presented and assign credibility to witnesses in its discretion as it makes findings of
fact.
¶ 32 Here, the evidence presented at the termination of parental rights hearing
shows that Ms. Roberto frequently did not respond to Mr. Savard and primarily
responded when it benefited her (i.e., to ask where to send divorce papers, request
Mr. Savard relinquish his parental rights, etc.). Additionally, the Guardian ad Litem
in the case testified that Ms. Roberto’s motive in switching the child support
payments from garnishment from Mr. Savard’s paychecks through an agency to
requiring Mr. Savard to pay on his own was because failure to pay child support is a
ground for termination of parental rights. This testimony supports the finding that
Ms. Roberto’s “agenda” was to terminate Mr. Savard’s parental rights. Thus, we
conclude that this finding of fact is supported by clear, cogent, and convincing
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evidence.
7. Finding of Fact 30
¶ 33 Finding of fact 30 states:
Ms. Roberto subsequently blocked Mr. Savard on all social
media outlets and blocked his telephone number. Mr.
Savard had no way to contact [Sarah] or Ms. Roberto which
was reliable.
¶ 34 At the termination of parental rights hearing Mr. Savard testified that he was
blocked by Ms. Roberto on Facebook. The Guardian ad Litem testified that Mr.
Savard was blocked by Ms. Roberto on social media and by phone. However, Ms.
Roberto testified that she never blocked Mr. Savard’s phone. Once again the evidence
is conflicting. Even if Ms. Roberto did not block Mr. Savard’s phone, we believe the
screenshots of the text chain between Mr. Savard and Ms. Roberto, which were
entered into evidence, supports the finding that Mr. Savard did not have a reliable
method of communicating with Ms. Roberto. Thus, we conclude that this finding is
supported by clear, cogent, and convincing evidence.
8. Finding of Fact 36
¶ 35 Finding of fact 36 states:
While Mr. Savard has not made valiant efforts to forge a
relationship with his daughter, he has made some efforts
which has often times been thwarted by Ms. Roberto. Ms.
Roberto has actively hindered and essentially precluded
Mr. Savard from being part of [Sarah]’s life. Mr. Savard
has not shown an intention to give up all parental rights to
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[Sarah].
¶ 36 Ms. Roberto’s only argument as to the substance of this finding of fact is that
she never “thwarted,” “actively hindered,” or “precluded” Mr. Savard from being a
part of Sarah’s life. At the hearing, Mr. Savard testified that when he contacted Ms.
Roberto asking how Sarah is Ms. Roberto would not tell him, Ms. Roberto tried to
bribe him into relinquishing his parental rights, that he went to a psychologist as
required by the DVPO to be able to obtain visitation with Sarah, that he has over 200
pictures of Sarah which he had to get through other friends on Facebook because he
was blocked by Ms. Roberto, he bought Sarah about $700 in Christmas gifts that he
was not able to give to her, and that he just wants to be a part of Sarah’s life because
he loves her. This testimony when viewed in conjunction with the Guardian ad
Litem’s testimony that Ms. Roberto purposefully changed the method of collection of
child support to set up a scenario where she could file for termination of parental
rights supports the finding that Ms. Roberto thwarted Mr. Savard’s efforts to be in
Sarah’s life. Thus, we conclude that this finding is supported by clear, cogent, and
convincing evidence.
¶ 37 In summary, we conclude that the challenged portions of finding of fact 15 and
27 and all of finding of fact 25 are not supported by clear, cogent, and convincing
evidence. As a result, we will not consider these unsupported findings in our
evaluation of Ms. Roberto’s additional arguments. However, the challenged findings
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of fact which we concluded are supported by clear, cogent, and convincing evidence
and the unchallenged findings of fact are binding on this court in our review of the
trial court’s conclusions of law. See In re S.C.L.R., 378 N.C. 484, 491, 2021-NCSC-
101, ¶ 22.
B. Grounds for Termination of Parental Rights
¶ 38 In her Petition, Ms. Roberto claimed grounds existed to terminate Mr. Savard’s
parental rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (4), and (7). However,
following the termination of parental rights hearing, the trial court concluded no
grounds existed to terminate Mr. Savard’s parental rights.
¶ 39 On appeal, Ms. Roberto argues the trial court erred in concluding that grounds
did not exist pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1), (4), and (7). Only one
ground is necessary to support a termination of parental rights. Id. at 494, 2021-
NCSC-101, ¶ 29. Our review of the record makes it clear that the trial court did not
err in concluding that Mr. Savard did not neglect Sarah or willfully abandon Sarah.
Thus, grounds for termination pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) and (7)
are not present. Ms. Roberto’s most compelling argument is that grounds existed to
terminate Mr. Savard’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(4),
due to failure to pay child support. Thus, we only analyze this ground for termination
of parental rights.
¶ 40 Section 7B-1111(a)(4) provides that the trial court may terminate the parental
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rights upon a finding that
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 the decree or
custody agreement.
N.C. Gen. Stat. § 7B-1111(a)(4) (2020).
¶ 41 A review of this State’s appellate opinions analyzing N.C. Gen. Stat. § 7B-
1111(a)(4) reveals that in order to establish the existence of grounds to terminate
parental rights pursuant to § 7B-1111(a)(4), the party petitioning for termination of
parental rights need only show (1) that an order or parental agreement requiring the
payment of child support was in effect at the time the petition was filed and (2) that
the party whose parental rights were sought to be terminated had not paid child
support as required by the order or parental agreement within the year preceding the
entry of the petition. In re C.L.H., 376 N.C. 614, 620, 2021-NCSC-1, ¶ 13.
¶ 42 In In re C.L.H. , our Supreme Court concluded that the trial court’s findings of
fact were insufficient to support the termination of respondent’s parental rights based
on § 7B-1111(a)(4) because the trial court made no findings of fact that a child support
order existed in the year prior to the filing of the petition to terminate respondent’s
parental rights. Id. at 621, 2021-NCSC-1, ¶ 13. Similarly, this Court concluded in In
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re I.R.L. that the trial court’s findings were insufficient to support a conclusion that
a respondent’s parental rights were subject to termination pursuant to § 7B-
1111(a)(4), despite both parties testifying that a child support order was entered
requiring the respondent to pay child support, because the trial court’s order was
“devoid of any findings indicating that a child support order existed or that [the
f]ather failed to pay support as required by the child support order.” In re I.R.L., 263
N.C. App. 481, 486, 823 S.E.2d 902, 906 (2019).
¶ 43 The case sub judice is similar to In re C.L.H. and In re I.R.L. in that the trial
court’s findings of fact do not support a conclusion that grounds for termination of
parental rights pursuant N.C. Gen. Stat. § 7B-1111(a)(4) exist, because the findings
of fact do not include a finding that an order existed requiring Mr. Savard to pay child
support. The findings of fact only include findings that Mr. Savard paid child support
and that Mr. Savard’s child support payments stopped after Ms. Roberto elected to
stop garnishment of child support from Mr. Savard’s paychecks through North
Carolina Centralized Collections. Thus, based on the findings of fact made, the trial
court’s conclusion that no grounds existed to terminate Mr. Savard’s parental rights
was not erroneous.
¶ 44 However, we note that Ms. Roberto did establish that an order was in effect
and that order was entered into evidence at the termination of parental rights
hearing. Thus, the record includes evidence that would support a finding of fact that
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such an order was in effect and a subsequent conclusion that grounds existed to
terminate Mr. Savard’s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(4).
¶ 45 Nevertheless, it is well settled law that “[t]his Court has consistently held that
upon a finding that grounds exist to authorize termination, the trial court is never
required to terminate parental rights under any circumstances, but is merely given
the discretion to do so.” In re Tyson, 76 N.C. App. 411, 419, 333 S.E.2d 554, 559 (1985)
(citing In re Pierce, 67 N.C. App. 257, 312 S.E.2d 900 (1984); In re Godwin, 31 N.C.
App. 137, 228 S.E.2d 521 (1976)). As a result, we conclude that the trial court acted
within its discretion in electing to not terminate Mr. Savard’s parental rights and any
error the trial court may have made by failing to make a finding of fact regarding the
existence of a child support order and subsequently concluding that grounds did not
exist to terminate Mr. Savard’s parental rights pursuant N.C. Gen. Stat. § 7B-
1111(a)(4) was harmless.
IV. Conclusion
¶ 46 For the foregoing reasons, we affirm the trial courts order.
AFFIRMED.
Judges CARPENTER and GRIFFIN concur.