Matter of Godwin , 31 N.C. App. 137 ( 1976 )

228 S.E.2d 521 (1976) 31 N.C. App. 137

In the Matter of Michelle Lee GODWIN, minor.

No. 767DC381.

Court of Appeals of North Carolina.

October 6, 1976.

George Paul Duffy, Jr., Rocky Mount, for petitioner-appellant.

Ezzell, Henson & Fuerst by James E. Ezzell, Jr., Rocky Mount, for respondents-appellees.

BRITT, Judge.

The sole question presented on appeal is whether the trial court erred in concluding that there had been no "physical abuse or serious neglect" as required to terminate parental rights under G.S. 7A-288(4). We hold that it did not.

The statutory provision applicable to the present case is G.S. 7A-288(4) which provides that the court may enter an order terminating parental rights if the court finds: "That the parent has so physically abused or seriously neglected the child that it would be in the best interest of the child that he not be returned to such parent." As stated in Dept. of Social Services v. Roberts, 22 N.C.App. 658, 660, 207 S.E.2d 368, 370 (1974): "It should be noted that the court is not required to terminate parental rights under any circumstances. G.S. 7A-288 only gives the court the authority to do so in the exercise of its discretion.. . ."

To terminate parental rights under the present statutory provision, the trial court must base its determination on evidence which shows either physical abuse or serious neglect. No evidence of physical abuse was presented in the instant case. Petitioner contends that the refusal of the Godwins to consent to the adoption of Michelle (by other parties) and the refusal of the father to submit to further counseling to determine his ability as a parent constitute serious neglect. We agree with the trial court that this is not the type of "serious neglect" contemplated by the statute.

The evidence presented was insufficient to support a finding of serious neglect, therefore, the decision of the trial court is

Affirmed.

PARKER and CLARK, JJ., concur.