In re M.A.H. ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1379
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
M.A.H. Guilford County
No. 10 JT 555
Appeal by respondent-mother from orders entered 22 July and
4 September 2013 by Judge Thomas Jarrell in Guilford County
District Court. Heard in the Court of Appeals 28 April 2014.
Lindley Law Firm, PLLC, by Salam B. Skeen, for petitioner-
appellees.
Leslie Rawls for respondent-appellant mother.
HUNTER, Robert C., Judge.
Respondent J.S. appeals from orders terminating her
parental rights to her minor child, M.A.H.1 (“the juvenile”).
After careful review, we affirm.
Background
Respondent gave birth to the juvenile in September 2006.
In November 2006, respondent and the juvenile began living in
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Initials are used to protect the identity of the juvenile.
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the home of the petitioners, who are respondent’s great aunt and
uncle. On 14 February 2007, petitioners obtained an ex parte
emergency custody order granting them sole and exclusive
emergency custody of the juvenile. An order granting
petitioners’ permanent custody of the juvenile was rendered by
the trial court in open court on 10 September 2007; however, the
order was not reduced to writing and entered until 28 November
2011.
Petitioners filed their first petition to terminate
respondent’s parental rights on 20 December 2010, alleging
grounds of neglect and willful abandonment. After a hearing on
23-24 January and 1 February 2012, the trial court entered an
order dismissing the petition on 13 March 2012.
Petitioners filed a second petition to terminate
respondent’s parental rights on 21 December 2012, alleging
grounds of neglect, dependency, willful abandonment, and failure
to make reasonable progress to correct the conditions which led
to the removal of the juvenile from her home. After a hearing
on 1 July 2013, the trial court entered an adjudication order on
22 July 2013 in which it concluded grounds existed to terminate
respondent’s parental rights based on neglect, willful
abandonment, and failure to make reasonable progress to correct
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the conditions which led to the removal of the juvenile from her
home. The trial court continued the matter until 30 July 2013,
when it held a disposition hearing. On 4 September 2013, the
trial court entered a disposition order terminating respondent’s
parental rights to the juvenile. Respondent filed timely notice
of appeal.
Arguments
Respondent first argues the trial court erred by entering a
written order that differs materially from the order rendered in
open court. Respondent contends it was error for the trial
court to enter an order finding multiple grounds existed to
terminate her parental rights, when it rendered judgment finding
only the ground of abandonment. However, “it is well-
established that ‘an order rendered in open court is not
enforceable until it is ‘entered,’ i.e., until it is reduced to
writing, signed by the judge, and filed with the clerk of
court.’” In re K.S., 183 N.C. App. 315, 330, 646 S.E.2d 541,
549 (2007) (quoting In re L.L., 172 N.C. App. 689, 698, 616
S.E.2d 392, 397 (2005)). Thus, the trial court’s oral ruling
finding the existence of only the ground of abandonment was not
final, and the court had the authority to alter its ruling in
its written order. Id.-4-
We next address respondent’s argument that the trial
court’s findings are insufficient to support its conclusion that
grounds existed to terminate respondent’s parental rights based
upon her abandonment of the juvenile pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(7). This Court reviews the adjudication of the
existence of grounds to terminate parental rights to determine
“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). A trial court may terminate
parental rights if “[t]he parent has willfully abandoned the
juvenile for at least six consecutive months immediately
preceding the filing of the petition or motion[.]” N.C. Gen.
Stat. § 7B-1111(a)(7) (2013). “‘Whether a biological parent has
a willful intent to abandon [her] child is a question of fact to
be determined from the evidence.’” In re T.C.B., 166 N.C. App.
482, 485, 602 S.E.2d 17, 19 (2004) (quoting In re Adoption of
Searle, 82 N.C. App. 273, 276, 346 S.E.2d 511, 514 (1986)).
[A]bandonment imports any wilful or
intentional conduct on the part of the
parent which evinces a settled purpose to
forego all parental duties and relinquish
all parental claims to the child . . . .
[I]f a parent withholds [her] presence,
[her] love, [her] care, the opportunity to
display filial affection, and wilfully
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neglects to lend support and maintenance,
such parent relinquishes all parental claims
and abandons the child . . . .
In re Apa, 59 N.C. App. 322, 324, 296 S.E.2d 811, 813 (1982)
(citations and quotation marks omitted).
Here, the trial court made the following relevant findings
of fact regarding respondent’s abandonment of the juvenile:
10. Respondent-Mother has not exercised her
parental rights to visit [the juvenile]
pursuant to the Courts’ [sic] [Custody]
Order entered on November 28, 2011.
Respondent-mother testified that she was not
allowed to visit on some occasions. The
Court is not convinced that the respondent-
mother did not know of any remedies,
including Motions for Contempt, since she
has previously filed such a motion.
11. During the time the minor child was in
the legal custody of the petitioners the
respondent mother . . . failed to comply
with the Courts’ [sic] visitation Order and
in a light most favorable to the respondent-
mother, the Court finds she visited
approximately five (5) times in the past
twelve (12) months and had no visits in the
six (6) months prior to the filing of this
Petition. Further, the respondent-mother
has made no effort to develop a meaningful
bond with the juvenile.
12. On one occasion during the prior hearing
for termination of parental rights in 2010
the respondent-mother gave the minor child a
card and a couple of Christmas presents.
13. . . .
a. Respondent-mother has neglected her
minor child . . . in that the
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respondent-mother has not provided
proper care, supervision or discipline
or any love or affection for at least
six (6) consecutive months immediately
preceding the filing of this petition.
She has abandoned the minor child and
did not provide the necessary remedial
care for him.
b. Respondent-mother has neglected her
minor child . . . in that for at least
six (6) months prior to the filing of
this Petition the respondent-mother has
not provided any financial support for
her minor child, purchased gifts,
cards, birthday presents or Christmas
presents.
Respondent’s sole challenge to these findings of fact is to
the court’s finding regarding her knowledge of a remedy,
including motions for contempt, to petitioners’ alleged
interference with her visitation with the juvenile. Respondent
contends that mere knowledge that she could file a motion for
contempt to enforce her visitation rights is insufficient to
support abandonment given that there was nothing in the record
to suggest she could afford an attorney to file such a motion,
or that she had the education, skill, knowledge or ability to
prepare her own motion and meet the subsequent procedural
requirements to have the motion heard. Respondent has not
challenged any of the other above findings of fact on appeal,
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and they are thus binding on this Court. Koufman v. Koufman,
330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
We are sympathetic to the difficulty faced by respondent in
pursuing a legal remedy for petitioners’ alleged interference
with her visitation rights. However, petitioner’s complete
failure to show that she made any attempt to enforce her
visitation rights, whether through contempt proceedings or
otherwise, supports the trial court’s conclusion that she
abandoned the juvenile. Respondent made no attempt to enforce
her visitation rights, did not visit with the juvenile at all
during the six months immediately preceding the filing of the
petition to terminate her parental rights, provided no financial
support for the juvenile, and sent the juvenile no cards or
presents since 2010. The trial court’s findings “evince[] a
settled purpose to forego all parental duties and relinquish all
parental claims to the [juvenile,]” Apa, 59 N.C. App. at 324,
296 S.E.2d at 813, and support its conclusion that respondent
willfully abandoned the juvenile.
Because the existence of one of the enumerated grounds
under N.C. Gen. Stat. § 7B-1111 is sufficient to support
termination of respondent’s parental rights, we need not address
her remaining arguments regarding the grounds of neglect and
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failure to make reasonable progress to correct the conditions
that led to the removal of the juvenile from her home. In re
B.S.D.S., 163 N.C. App. 540, 546, 594 S.E.2d 89, 93-94 (2004).
Accordingly, we affirm the trial court’s adjudication order
concluding grounds exist to terminate respondent’s parental
rights to her minor child M.A.H.
Respondent also argues that the trial court abused its
discretion in concluding that terminating her parental rights is
in the juvenile’s best interest. We disagree.
“After an adjudication that one or more grounds for
terminating a parent’s rights exist, the court shall determine
whether terminating the parent’s rights is in the juvenile’s
best interest.” N.C. Gen. Stat. § 7B-1110(a) (2013). In making
its determination, the court shall consider and make written
findings about each of the following criteria, if relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the
juvenile.
(3) Whether the termination of parental
rights will aid in the accomplishment of the
permanent plan for the juvenile.
(4) The bond between the juvenile and the
parent.
(5) The quality of the relationship between
the juvenile and the proposed adoptive
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parent, guardian, custodian, or other
permanent placement.
(6) Any relevant consideration.
Id. “We review the trial court’s decision to terminate parental
rights for abuse of discretion.” In re Anderson, 151 N.C. App.
94, 98, 564 S.E.2d 599, 602 (2002).
Respondent contends that the trial court’s findings of fact
are insufficient to support its conclusion, and that the court’s
conclusion rests solely on the availability of adoptive parents
able to provide support for the juvenile. Respondent concedes,
however, that the trial court made written findings of fact
about each of the criteria set forth in section 7B-1110(a) when
it concluded that terminating her parental rights was in the
juvenile’s best interest. The court found the juvenile is six
years old and had known no parents other than petitioners.
Further, the court found petitioners had filed a petition to
adopt the juvenile, that the likelihood of adoption was very
good, and that termination of respondent’s parental rights would
aid in achieving a permanent plan for the juvenile. Lastly, the
court found respondent’s bond with the juvenile is weak to non-
existent and that petitioners have a strong and loving
relationship with the juvenile.
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We hold the trial court’s findings of fact show that it
carefully considered all of the statutory factors in determining
whether terminating parental rights was in the best interests of
the juvenile, and did not base its conclusion solely on the
availability of adoptive parents. We conclude the trial court’s
decision to terminate parental rights does not constitute an
abuse of discretion, and affirm the court’s order terminating
respondent’s parental rights to her minor child M.A.H.
Conclusion
Based on the foregoing reasons, we affirm the trial court’s
order.
AFFIRMED.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).