In re D.C.M. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .
NO. COA13-1393
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
IN THE MATTER OF:
D.C.M. Alleghany County
Nos. 05 J 20, 12 JT 18
Appeal by respondent from order entered 16 October 2013 by
Judge Michael Duncan in Alleghany County District Court. Heard
in the Court of Appeals 5 May 2014.
James N. Freeman, Jr., for petitioner-appellees.
Richard Croutharmel for respondent-appellant father.
BRYANT, Judge.
Respondent-father appeals from an order terminating his
parental rights. After careful review, we affirm.
On 24 October 2005, the Alleghany County Department of
Social Services (“DSS”) filed a petition alleging that Danny1 was
a neglected juvenile. At the time the petition was filed, Danny
1
Danny is a pseudonym used to protect the identity of the
juvenile pursuant to N.C. R. App. P. 3.1(b) (2013).
-2-
was living with his mother, other siblings, and maternal
grandparents. DSS had visited Danny’s home on 4 October 2005
and found that it was in “disarray.” DSS claimed that it
found: (1) dirty clothes lying on the floor; (2) unclean carpet
and flooring, causing the children’s feet to turn black from the
dirt; and (3) bugs. Additionally, a strong odor permeated the
apartment. DSS further stated that it received several calls on
17 October 2005 reporting that there were three children
standing next to a road unsupervised, one of whom was Danny.
Danny was just six years old at the time. On 22 November 2005,
DSS obtained non-secure custody of Danny.
On 23 February 2006, a consent order was entered
adjudicating Danny as neglected. Danny was placed in a
guardianship arrangement with petitioners and respondent was
granted visitation. The trial court also authorized DSS to
cease reunification efforts. On 26 January 2007, upon review of
the guardianship arrangement, the trial court concluded that
continuing the guardianship arrangement with petitioners was in
Danny’s best interest. The court noted that respondent had not
visited Danny since October 2006. At the conclusion of the
hearing, the court waived further review hearings.
-3-
On 23 July 2008, respondent filed a motion in the cause
seeking visitation. On 18 December 2008, the trial court
entered an order requiring respondent to undergo a mental health
evaluation prior to being allowed renewed visitation with Danny.
A hearing was held on 2 June 2009, at which time the trial court
noted that respondent had moved to Virginia and had not yet
undergone a mental health evaluation. The court solicited the
assistance of the Virginia Department of Social Services in
completing the evaluation. On 10 May 2012, Danny’s mother
relinquished her parental rights.
On 30 August 2012, petitioners filed a petition to
terminate respondent’s parental rights. Petitioners alleged
that grounds existed to terminate respondent’s parental rights
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect), (2)
(willful failure to correct conditions which led to removal of
the juvenile), (3) (failure to provide financial support), (6)
(dependency), and (7) (abandonment). N.C.G.S. § 7B-1111(a)
(2013). On 22 January 2013, the trial court consolidated the
underlying neglect proceeding (05 JA 20) with the newly filed
termination proceeding (12 JT 18).
On 16 October 2013, the court entered an order terminating
respondent’s parental rights on the grounds of neglect and
-4-
abandonment pursuant to N.C.G.S. § 7B-1111(a) (1) and (7).
Respondent appeals.
______________________________
On appeal, respondent argues that: (I) the trial court’s
order terminating his parental rights was void; and that the
trial court erred in terminating his parental rights on grounds
of (II) abandonment and (III) neglect.
I.
Respondent first argues that the trial court’s order
terminating his parental rights is void because petitioners
failed to join DSS as a party to the case in violation of N.C.
Gen. Stat. § 7B-1106.1 (2013). We disagree.
We must first address petitioners’ contention that
respondent waived this issue by failing to raise it in the trial
court. “A judgment which is determinative of a claim arising in
an action in which necessary parties have not been joined is
null and void.” Rice v. Randolph, 96 N.C. App. 112, 113, 384
S.E.2d 295, 297 (1989) (citation omitted); see also N.C. Gen.
Stat. § 1A-1, Rule 19 (2013). This Court has stated that “[a]
party does not waive the defense of failure to join a necessary
party; an objection on this basis can be raised at any time.”
Commonwealth Land Title Ins. Co. v. Stephenson, 97 N.C. App.
-5-
123, 125, 387 S.E.2d 77, 79 (1990) (citation omitted).
Consequently, respondent’s argument has not been waived, and we
must determine whether DSS is a necessary party.
Respondent contends that DSS was a necessary party in
accordance with N.C.G.S. § 7B-1106.1. Respondent’s argument is
misplaced, however, because petitioners filed this petition as
Danny’s guardians pursuant to N.C. Gen. Stat. § 7B-1103 (2013),
and not as a motion pursuant to N.C. Gen. Stat. § 7B-1102
(2013). Thus, the notice requirements of N.C.G.S. § 7B-1106.1
were not invoked.
The petition to terminate respondent’s parental rights was
later consolidated with the underlying juvenile file pursuant to
N.C.G.S. § 7B-1103(c) (2013). There is no provision in N.C.G.S.
§ 7B-1103(c) regarding notice or joinder of parties. Therefore,
we must look to Rule 19 to determine whether DSS was a necessary
party. See In re B.L.H., 190 N.C. App. 142, 146, 660 S.E.2d
255, 257 (2008) (“The Rules of Civil Procedure will . . . apply
to fill procedural gaps where Chapter 7B requires, but does not
identify, a specific procedure to be used in termination cases.”
(citations omitted)).
This Court has stated:
Rule 19 dictates that all necessary parties
must be joined in an action. Rule 19
-6-
requires the [trial] court to join as a
necessary party any persons ‘united in
interest’ and/or any persons without whom a
complete determination of the claim cannot
be made . . . [s]ince a judgment without
such necessary joinder is void.
Commonwealth Land Title, 97 N.C. App. at 125, 387 S.E.2d at 79
(citations and quotation omitted). “A necessary party is one
who is so vitally interested in the controversy that a valid
judgment cannot be rendered in the action completely and finally
determining the controversy without his presence.” Karner v.
Roy White Flowers, Inc., 351 N.C. 433, 438—39, 527 S.E.2d 40, 44
(2000) (citation and quotation omitted).
Under the facts of this case, we conclude that DSS was not
a necessary party, but a proper party. Our Supreme Court has
defined a proper party as “a party who has an interest in the
controversy or subject matter which is separable from the
interest of the other parties before the court, so that it may,
but will not necessarily, be affected by a decree or judgment
which does complete justice between the other parties.” Id.In its order adjudicating Danny neglected, the trial court
granted guardianship to petitioners and authorized DSS to cease
efforts to reunify Danny with respondent. Consequently, because
DSS did not retain custody and was no longer required to
continue reunification efforts, it was not a necessary party to
-7-
this action. Accordingly, we conclude the trial court’s
termination order was not void for failure to join DSS as a
necessary party.
II. & III.
Respondent next argues that the trial court erred by
concluding that grounds existed to terminate his parental
rights. We are not persuaded.
N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds
for terminating parental rights. A finding of any one of the
separately enumerated grounds is sufficient to support
termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230,
233—34 (1990) (citation omitted). “The standard of appellate
review is whether the trial court’s findings of fact are
supported by clear, cogent, and convincing evidence and whether
the findings of fact support the conclusions of law.” In re
D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing
In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000)).
The trial court’s findings of fact are conclusive even when
there is evidence supporting contrary findings. In re Helms,
127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997) (citations
omitted).
-8-
In the case sub judice, one of the grounds found by the
trial court to support termination of respondent’s parental
rights was abandonment. Pursuant to N.C. Gen. Stat. § 7B-
1111(a)(7), parental rights may be terminated when a “parent has
willfully abandoned the juvenile for at least six consecutive
months immediately preceding the filing of the petition or
motion . . . .” N.C.G.S. § 7B-1111(a)(7) (2013). The petition
to terminate respondent’s parental rights was filed on 30 August
2012. Thus, the relevant statutory period was from 29 February
2012 to 30 August 2012. We note, however, that the statute
requires that the child be abandoned for “at least” six months
prior to the motion or petition to terminate parental rights.
Id. (emphasis added). Therefore, it was within the court’s
discretion to consider events occurring prior to the six-month
period immediately preceding the filing of the petition.
This Court has defined abandonment as:
wilful neglect and refusal to perform the
natural and legal obligations of parental
care and support. . . . [I]f 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 Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427
(2003) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d
-9-
597, 608 (1962)). “Whether a biological parent has a willful
intent to abandon his child is a question of fact to be
determined from the evidence.” In re Adoption of Searle, 82
N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986) (citation
omitted).
Here, in support of its conclusion that respondent
abandoned Danny, the trial court found that:
9. The Court find[s] a memorandum Judgment
Order by Consent dated February 23, 2006
[which] gave [respondent] the opportunity to
visit with [Danny]. The Order also gave
[respondent] reasonable telephone contact.
10. No subsequent orders restricted
[respondent] with having contact with the
minor child.
11. The Court finds [respondent] has not
provided the child with support either
physically, emotionally or financially
[which] is required and expected by a
parent. The Respondent father has withheld
his presence, love[,] care and opportunity
to display affection and has willfully
neglected to lend support and maintenance at
a minimum since 2007.
. . .
13. The Court heard no evidence that
[respondent] was incarcerated.
14. The lack of contact with the child was
in the Respondent Father[’s] . . . control.
15. The Court specifically finds that the
father has not provided presents, cards,
-10-
gifts or any other means of emotional[,]
financial or physical support. The father
has not provided any care or support for the
minor since the petition was filed in 2006.
16. The Court finds the father[’s] actions
are wholly inconsistent with the desire to
maintain custody of [Danny].
. . .
20. [Petitioners] have remained living at
the same address for the past 7 years.
As respondent does not challenge the above findings of fact,
they are binding on appeal. Koufman v. Koufman, 330 N.C. 93,
97, 408 S.E.2d 729, 731 (1991) (citations omitted). Based on
these findings, we conclude that grounds existed pursuant to
N.C.G.S. § 7B-1111(a)(7) to terminate respondent’s parental
rights.
Respondent additionally argues that the trial court erred
by concluding that grounds existed pursuant to N.C. Gen. Stat. §
7B-1111(a)(1) to terminate his parental rights. However,
because we conclude that grounds existed pursuant to N.C.G.S. §
7B-1111(a)(7) to support the trial court’s order of termination
based on abandonment, we need not address the remaining ground
found by the trial court to support termination. In re Taylor,
97 N.C. App. at 64, 387 S.E.2d at 233—34. Accordingly, we
affirm.
-11-
Affirmed.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).