In re K.G.A.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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-137
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
In Re: Cleveland County
Nos. 08 JT 183, 184
K.G.A.W., G.W.W.
Appeal by respondent from order entered 23 October 2013 by
Judge K. Dean Black in Cleveland County District Court. Heard
in the Court of Appeals 16 June 2014.
Charles E. Wilson, Jr., Cleveland County Department of
Social Services, for petitioner-appellee.
Kilpatrick Townsend & Stockton LLP, by Adam H. Charnes and
Chris W. Haaf, for guardian ad litem.
Assistant Appellate Defender Joyce L. Terres for
respondent-appellant.
ELMORE, Judge.
Respondent father appeals from an order terminating his
parental rights to K.G.A.W., born in January 2004, and G.W.W.,
born in August 2006. We affirm the trial court’s order.
K.G.A.W. and G.W.W. were removed from their mother’s home
in Cleveland County on 3 March 2010 after their mother was found
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in the home unconscious and non-responsive following an
unintentional overdose of prescription medication. Respondent
was residing in Graham County separate from the children and
their mother at that time. The children were adjudicated as
neglected juveniles on 29 November 2010 and were placed in the
custody of the Cleveland County Department of Social Services
(DSS).
On 21 May 2012, the juveniles’ mother signed a voluntary
relinquishment of her parental rights. On 29 June 2012, DSS
filed petitions to terminate respondent’s parental rights. The
trial court entered an order on 23 October 2013 terminating
respondent’s parental rights on grounds that respondent: (1)
neglected the juveniles; (2) willfully left the juveniles in the
custody of Cleveland County DSS for more than twelve months
without showing to the satisfaction of the trial court that
reasonable progress under the circumstances has been made in
correcting the conditions that led to the removal of the
juveniles; (3) abandoned the juveniles for at least six
consecutive months immediately preceding the filing of the
petition; and (4) had his parental rights involuntarily
terminated with respect to another child and lacked the ability
or willingness to establish a safe home for these juveniles.
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Respondent challenges the trial court’s finding of all four
grounds.
We review a trial court’s order terminating parental rights
to determine whether the 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
Shepard, 162 N.C. App. 215, 221, 591 S.E.2d 1, 6, disc. review
denied sub nom In re D.S., 358 N.C. 543, 599 S.E.2d 42 (2004).
We are bound by findings of fact “where there is some evidence
to support those findings, even though the evidence might
sustain findings to the contrary.” In re Montgomery, 311 N.C.
101, 110-11, 316 S.E.2d 246, 252-53 (1984) (citation omitted).
Findings of fact are also binding if they are not challenged on
appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,
731 (1991). We conduct de novo review of the trial court’s
conclusions of law. In re S.N., 194 N.C. App. 142, 146, 669
S.E.2d 55, 59 (2008), aff’d per curiam, 363 N.C. 368, 677 S.E.2d
455 (2009) (citation omitted).
We first address the trial court’s conclusion that
respondent has neglected the juveniles. Respondent contends
that this conclusion is not supported by the findings of fact or
clear, cogent and convincing evidence.
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A trial court may terminate parental rights pursuant to
N.C. Gen. Stat. § 7B-1111(a)(1) if it concludes that the parent
has abused or neglected the child. N.C. Gen. Stat. §
7B-1111(a)(1) (2013). A parent neglects a child by failing to
provide proper care, supervision, discipline or a safe
environment or by abandoning the child. N.C. Gen. Stat. § 7B-
101(15) (2013).
The fact that a parent does provide love,
affection and concern, although it may be
relevant, should not be determinative, in
that the court could still find the child to
be neglected within the meaning of our
neglect and termination statutes. Where the
evidence shows that a parent has failed or
is unable to adequately provide for his
child’s physical and economic needs, whether
it be by reason of mental infirmity or by
reason of willful conduct on the part of the
parent, and it appears that the parent will
not or is not able to correct those
inadequate conditions within a reasonable
time, the court may appropriately conclude
that the child is neglected.
Montgomery, 311 N.C. at 109, 316 S.E.2d at 251-52. “A finding
of neglect sufficient to terminate parental rights must be based
on evidence showing neglect at the time of the termination
proceeding.” In re Young, 346 N.C. 244, 248, 485 S.E.2d 612,
615 (1997) (citation omitted). “The trial court must also
consider any evidence of changed conditions in light of the
evidence of prior neglect and the probability of a repetition of
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neglect.” In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232
(1984) (citation omitted).
The unchallenged findings of fact indicate that the
children were previously in the custody of Cleveland County DSS
from 8 October 2008 until 30 September 2009, when they returned
to their mother’s home. In its order returning the children to
their mother, the trial court found that respondent had not
visited the children since May 2009. Between the time the
children were removed from the home on 3 March 2010 and the
entry of the adjudication order in November 2010, respondent
visited with the children a total of ten times. Respondent last
visited the children on 20 November 2010. All other scheduled
visits thereafter did not occur either because of respondent’s
failure to comply with the precondition of submission to drug
screens, respondent’s cancellation of the visitation, or
respondent’s incarceration. Respondent did not request
visitation with the children when he spoke to the social worker
on 27 July 2011 and did not inquire as to the juveniles’ well-
being at that time. Respondent failed to attend scheduled court
hearings on 23 March 2011 and 6 April 2011. During a court
hearing on 21 September 2011, respondent requested visitation
with his children after he was to be released from incarceration
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a week later. The trial court advised respondent that he needed
to contact the social worker to arrange visitation and that he
needed to submit to an observed drug test prior to visitation.
Respondent never contacted the social worker to arrange
visitation.
Respondent was arrested in October 2011 in Graham County
and was charged with manufacturing and possession of
methamphetamine. Since that time respondent has been
incarcerated in the North Carolina Department of Correction with
a projected release date of 13 February 2015. At review
hearings respondent attended on 25 January 2012 and 25 April
2012, respondent did not request to speak to the social worker
and did not inquire about his children. On 1 June 2012, the
social worker met with respondent in the Cleveland County Jail
and informed him that the children’s mother had signed a
relinquishment of paternal rights. The social worker provided
respondent with her address and contact information should he
desire to contact his children. Respondent has never written
letters to the children or attempted to send letters to the
children through the social worker since he has been in prison.
He has not provided any financial support for the children while
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he has been incarcerated. The children have not lived with
respondent since 2008.
“Abandonment implies conduct on the part of the parent
which manifests a willful determination to forego all parental
duties and relinquish all parental claims to the child.” In re
Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986). “It
has been held that if a parent withholds his presence, his love,
his care, the opportunity to display filial affection, and
wil[l]fully neglects to lend support and maintenance, such
parent relinquishes all parental claims and abandons the child.”
Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)
(citation omitted). We conclude the foregoing findings of fact
support a conclusion of law that respondent has neglected the
children and that the neglect is likely to continue for the
foreseeable future.
Because we conclude this ground is supported by the
findings of fact and evidence, we need not address the other
grounds adjudicated by the trial court. See In re P.L.P., 173
N.C. App. 1, 8, 618 S.E.2d 241, 246 (2005), aff’d per curiam,
360 N.C. 360, 625 S.E.2d 779 (2006) (finding that when “the
trial court finds multiple grounds on which to base a
termination of parental rights, and an appellate court
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determines there is at least one ground to support a conclusion
that parental rights should be terminated, it is unnecessary to
address the remaining grounds”).
We affirm the order terminating respondent’s parental
rights.
Affirmed.
Chief Judge MARTIN and Judge HUNTER, Robert N., concur.
Report per Rule 30(e).