In re S.M.W. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1362
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN RE:
S.M.W. Pasquotank County
No. 13 JT 17
Appeal by Respondent-Father from Order entered 6 September
2013 by Judge C. Christopher Bean in Pasquotank County District
Court. Heard in the Court of Appeals 5 May 2014.
Melissa L. Skinner for Petitioner-Mother.
Mark Hayes for Respondent-Father.
STEPHENS, Judge.
Factual Background and Procedural History
This case arises from the termination of Respondent-
Father’s parental rights to the minor child, Sam,1 on the ground
of neglect. Sam was born to Respondent-Father and Petitioner-
Mother (collectively, “the parents”) in April of 2010. The
parents lived together for a short time after Sam’s birth. They
were never married. On 3 December 2010, Respondent-Father
1
A pseudonym is used to protect the juvenile’s identity.
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assaulted Petitioner-Mother and tried to prevent her from
calling the police. As a result, Petitioner-Mother obtained a
domestic violence protective order (“DVPO”) against Respondent-
Father and an order giving her temporary custody of Sam. The
DVPO required Respondent-Father not to have any contact with
Petitioner-Mother except “by email or text message and only
regarding the health, safety, welfare, or visitation of [Sam].”
The temporary custody order provided that Respondent-Father
would have supervised visitation with Sam every Saturday from
10:00 a.m. to 6:00 p.m., with supervision provided by Sam’s
maternal grandmother. Petitioner-Mother was ordered not to be
present for Respondent-Father’s visits with Sam.
During a visit on 14 May 2011, the grandmother noticed that
Respondent-Father’s eyes were bloodshot and that his speech was
“odd.” On 26 May 2011, Petitioner-Mother filed a complaint
seeking physical and legal custody of Sam and the cessation of
visitation until Respondent-Father obtained psychological and
drug assessments and followed any recommended treatment. After
an entry of default on the custody complaint on 19 July 2011,
the matter was set for hearing on 7 December 2011. On 12 August
2011, Respondent-Father attempted to attend a Saturday visit
with Sam, but saw that Petitioner-Mother’s car was parked at the
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grandmother’s home. Respondent-Father contacted the sheriff’s
office and was arrested for violating the DVPO. Petitioner-
Mother renewed the DVPO on 7 December 2011 and was awarded
permanent custody of Sam in an order entered 4 January 2012. The
custody order provided that contact between Respondent-Father
and Sam would be at Petitioner-Mother’s discretion, but that
Respondent-Father could contact the grandmother, or any other
person designated by Petitioner-Mother, “to inquire as to
[Sam’s] welfare and well-being.” Respondent-Father was not
present for the hearing. The record before this Court contains
no indication that Respondent-Father appealed the custody order.
On 26 March 2013, Petitioner-Mother filed a petition to
terminate Respondent-Father’s parental rights. Petitioner-Mother
alleged that Respondent-Father had neglected and willfully
abandoned Sam. The matter came on for hearing on 9 July 2013,
and the trial court entered an order terminating Respondent-
Father’s parental rights on 6 September 2013. Therein, the trial
court found that Respondent-Father had failed to provide proper
care, supervision, or discipline for Sam and failed to provide
financial support. Therefore, the court concluded that
Respondent-Father neglected Sam as defined by N.C. Gen. Stat. §
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7B-1111(a)(1) (2013) and that it was likely such neglect would
continue. Respondent-Father appeals.
Discussion
In his sole argument on appeal, Respondent-Father contends
the trial court erred by concluding that the evidence supported
terminating his parental rights on the ground that he neglected
Sam. We disagree.
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) (2013);
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), disc. review denied, 353 N.C. 374, 547
S.E.2d 9 (2001). A finding of one statutory ground is sufficient
to support the termination of parental rights. In re Humphrey,
156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
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trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (citation and internal quotation
marks omitted).
In pertinent part, a neglected juvenile is defined as “[a]
juvenile who does not receive proper care, supervision, or
discipline from the juvenile’s parent, guardian, custodian, or
caretaker . . . .” N.C. Gen. Stat. § 7B-101(15) (2013); see also
N.C. Gen. Stat. § 7B-1111(a)(1). “In determining whether neglect
has occurred, the trial judge may consider . . . a parent’s
complete failure to provide the personal contact, love, and
affection that exists in the parental relationship.” In re
Yocum, 158 N.C. App. 198, 204, 580 S.E.2d 399, 403 (citation,
internal quotation marks, and brackets omitted), affirmed per
curiam, 357 N.C. 568, 597 S.E.2d 674 (2003).
“Neglect must exist at the time of the termination
hearing[.]” In re C.W., 182 N.C. App. 214, 220, 641 S.E.2d 725,
729 (2007). However, where “the parent has been separated from
the child for an extended period of time, the petitioner must
show that the parent has neglected the child in the past and
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that the parent is likely to neglect the child in the future.”
Id. (citation omitted). In such cases,
[o]ur Supreme Court has held that evidence
of neglect by a parent prior to losing
custody of a child — including an
adjudication of such neglect — is admissible
in subsequent proceedings to terminate
parental rights. However, termination of
parental rights for neglect may not be based
solely on conditions which existed in the
distant past but no longer exist. The
determinative factors must be the best
interests of the child and the fitness of
the parent to care for the child at the time
of the termination proceeding.
In re Manus, 82 N.C. App. 340, 348, 346 S.E.2d 289, 294 (1986)
(citations and internal quotation marks omitted; emphasis in
original).
In this case, the trial court found the following relevant
facts:
17. Respondent[-Father] last visited with
[Sam] on May 14, 2011 at [the grandmother’s]
residence.
. . .
19. [The grandmother] . . . was concerned
about Respondent[-Father]’s behavior and
actions while Respondent[-Father] was at her
house. [She] testified that the visits
between Respondent[-Father] and [Sam] were
awkward.
. . .
21. Respondent[-Father] arrived at [the
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maternal grandparents’] residence on August
12, 2011. Respondent[-Father] called law
enforcement to the residence as
Petitioner[-Mother]’s car was at the
residence. Respondent[-Father] was
arrested . . . . Respondent[-Father] did not
return to the residence after that date
because he believed he would be arrested for
violating the [DVPO].
. . .
23. Respondent[-Father] has not given
Petitioner[-Mother] any financial support
for [Sam] since 2011. The last item
Respondent[-Father] gave to [Sam] was a
Christmas gift in January 2011.
Respondent[-Father] has not acknowledged
[Sam’s] birthday or holidays since January
2011.
24. In May 2011, Respondent[-Father] called
and texted Petitioner[-Mother] but none of
the telephone calls or text messages had
anything to do [with Sam] and
Respondent[-Father] did not inquire about
[Sam].
25. [The grandparents] continue to reside
at the same residence that the visitations
took place between Respondent[-Father] and
[Sam] and their telephone numbers remained
the same through the hearing date.
. . .
27. Respondent[-Father] has not attempted
any contact with [Sam] for over 2 ½ years
and, during this time, Respondent[-Father]
has not mailed any cards or sent presents to
[Sam].
28. From May 2011 to the present date,
Respondent[-Father] has not made any efforts
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to file any motions to modify the current
child custody order.
29. Nothing has prohibited
Respondent[-Father] from sending cards,
gifts, financial support[,] or contacting
Petitioner[-Mother] or [the grandparents] to
inquire about [Sam]’s welfare.
. . .
31. Respondent[-Father] has another son
. . . who is eleven years old and with whom
he visits and pays child support.
32. Respondent[-Father] is employed with
his father’s business and works with his
father. Respondent[-Father] works with his
father when he [is] not incarcerated.
Respondent[-Father] had the ability to
financially support [Sam] and did not
support him.
33. Respondent[-Father]’s failure to
perform the natural and legal parental
obligations of care and support and
Respondent[-Father]’s withholding of his
love, presence, care[,] and maintenance have
been willful.
34. Respondent[-Father] has not shown any
likelihood that his behavior would change
and, instead, the Court finds that . . .
Respondent[-Father]’s failure to perform any
natural and legal parental obligations of
care and support towards [Sam] would
continue in the future.
On appeal, Respondent-Father contests the validity of findings
19, 27, 29, 32, and 33 as not supported by the evidence.2 We
2
In his brief, Respondent-Father erroneously labels findings of
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agree in part with Respondent-Father’s argument as it relates to
finding 27 and disagree as to the remaining findings.
First, Respondent-Father asserts that finding 19 is not
supported by the evidence because there was no awkwardness
between Respondent-Father and his infant child, Sam, just
awkwardness between Respondent-Father and the grandparents. To
the extent that “awkwardness” could possibly be relevant to an
adjudication of neglect,3 we hold that the undisputed fact that
the interaction between Respondent-Father and the grandparents
was “awkward” is sufficient to support finding 19.
Second, Respondent-Father asserts that finding 27 is not
supported by the evidence because he actually visited with Sam
in May of 2011 and “attempted” to visit him in August of 2011,
less than 2 ½ years before the neglect hearing. This is correct.
Respondent-Father’s 12 August 2011 attempted visit, which
resulted in his arrest, occurred approximately one year and
eleven months before the 9 July 2013 hearing on the termination
of his parental rights. Therefore, finding 27 is not supported
by clear and convincing evidence to the extent that it implies
Respondent-Father failed to attempt physical contact with Sam in
fact 29 and 33 as “#33” and “#30,” respectively. The substance
of his argument makes it clear, however, that he is actually
referring to findings 29 and 33, in that order.
3
We do not assert that it is.
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more than 2 ½ years. The remainder of the finding, which relates
to Respondent-Father’s failure to attempt other forms of
contact, is supported by undisputed evidence.
Third, Respondent-Father asserts that finding 29 is
unsupported by the evidence because it fails to acknowledge
that: (a) Petitioner-Mother prosecuted Respondent-Father for
sending a text message asking “more or less about what [she] was
doing” and (b) the custody order explicitly prohibited
Respondent-Father from sending cards or gifts for Sam to
Petitioner-Mother. This is inapposite. Finding 29 relates to
Respondent-Father’s decision to refrain from taking steps to
ensure Sam’s welfare or inquiring about Sam. Neither the DVPO
nor the custody order prohibited Respondent-Father from sending
cards or gifts to Sam, and both orders explicitly stated that
Respondent-Father was allowed to make contact in order to
inquire about Sam’s welfare. Therefore, Defendant’s argument is
overruled as it relates to finding 29.
Fourth, Respondent-Father asserts that finding 32 is not
supported by the evidence because “no evidence was presented
about what sort of income [Respondent-Father] earned and whether
that [income] provided him with anything beyond the basic
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necessities.”4 This is incorrect. The evidence shows that
Respondent-Father maintained employment when he was not
incarcerated and provided child support for another child. This
is clear and convincing evidence that “Respondent[-Father] had
the ability to financially support [Sam] and did not support
him.”
Fifth, Respondent-Father asserts that finding 33 — that he
“willfully” withheld love, presence, care, and maintenance — is
not supported by the evidence because Respondent-Father believed
further contact with Sam would result in imprisonment. This
argument is without merit. As discussed above, both the DVPO and
the custody order make clear that Respondent-Father could make
contact to inquire about Sam’s welfare, and neither order
prohibited him from providing maintenance for Sam or expressing
his love to Sam.
Respondent-Father does not contest the trial court’s
remaining findings of fact. Therefore, those findings are
conclusive on appeal. See In re Padgett, 156 N.C. App. 644, 649,
577 S.E.2d 337, 340 (2003) (holding that the trial court’s
findings of fact in a neglect case were deemed supported by the
evidence when the appellant did not argue otherwise). Thus,
4
Respondent-Father does not contest the trial court’s finding
that he did not financially support Sam.
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pursuant to the trial court’s valid and relevant findings of
fact, Respondent-Father voluntarily declined to: (1) provide
financial support for Sam since 2011; (2) acknowledge Sam’s
birthday or holidays since January of 2011; (3) attempt any non-
physical contact with Sam, i.e., by electronic communication,
mail, or other means, in more than 2 ½ years; (4) send cards or
presents to Sam; or (5) make efforts to modify the current child
custody order. These findings are sufficient to justify the
trial court’s adjudication of neglect, its conclusion that such
neglect is likely to continue, and the termination of
Respondent-Father’s parental rights. Compare In re Yocum, 158
N.C. App. at 198, 580 S.E.2d at 399 (holding that clear and
convincing evidence supported the trial court’s finding of
neglect in support of termination of the father’s parental
rights when the father never paid any child support, did not
send the child a gift or any acknowledgment on her birthday,
visited the child approximately five times, and failed to
participate in a charitable prison program that would have
provided gifts to children at no charge to the inmates), with In
re C.W., 182 N.C. App. at 214, 641 S.E.2d at 725 (holding that
there was insufficient evidence to establish neglect and support
a termination of parental rights when the father wrote to the
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children; sent them birthday cards, holiday cards, and money;
was initially unaware that the children had been placed in a
care facility; testified that he spent time with and cared for
the children before he was incarcerated; and was prohibited from
having contact with the children upon release from prison).
Accordingly, the trial court’s order is
AFFIRMED.
Judges BRYANT and DILLON concur.
Report per Rule 30(e).