Matter of Adoption of Cardo

255 S.E.2d 440 (1979) 41 N.C. App. 503

In the Matter of the ADOPTION OF James Edwin CARDO.

No. 7826SC676.

Court of Appeals of North Carolina.

June 5, 1979.

Farris, Mallard & Underwood by Ray S. Farris, Charlotte, for petitioner-appellee.

Hamel, Hamel, Welling & Pearce by Hugo A. Pearce III, Charlotte, for respondent-appellant.

VAUGHN, Judge.

The sole issue for trial was whether respondent had abandoned the child for six months immediately preceding the date the petition was filed, 20 June 1977. See G.S. 48-2(3a).

The respondent first contends that the trial court erred in allowing Jamie's mother to testify about his health. He argues that this testimony was irrelevant to the issue of whether Jamie had been abandoned and was prejudicial. Furthermore, he argues, the testimony was not limited to the time period prior to the date the petition was filed but included testimony concerning Jamie's health at the time of the hearing. We find that the respondent was not prejudiced by this testimony. That the child was in need of medical attention and respondent failed to provide funds or otherwise show concern about his condition, tends to be some evidence of willful abandonment. Jamie's mother informed the respondent's parents in December, 1976, of Jamie's health problems but received no communication from the respondent until June, 1977. This assignment of error is overruled.

Respondent next contends that the court erred in disallowing testimony of funds sent by the respondent after the filing of the petition for a declaration of abandonment. The record indicates that the respondent sent $1,500.00 for the child's care after 20 June 1977. Any funds sent after this date would be irrelevant to the issue of whether Jamie had been abandoned as alleged in the petition and, therefore, this evidence would not be admissible. Respondent's reliance on Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597 (1962), is misplaced. In Pratt, evidence tending to show that the father attempted to sell his consent to the adoption after the filing of the petition was admitted to show that he had a "weak cause" in protesting the action for abandonment. This evidence was, therefore, used to confirm guilt. In the present case, however, the respondent seeks to exonerate his prior conduct by actions taken, in all likelihood, in response to the filing of the petition seeking a declaration of abandonment. Legal abandonment, however, is not a transitory concept that may be recessed at the whim of the transgressor.

Respondent contends that the judge did not properly define willful abandonment. He also argues that the judge should have instructed the jury that an explanation as to why a parent has failed to contribute to the support of his child could negate a willful intent to abandon. The trial judge instructed the jury as follows.

"I will now define, Members of the Jury, the terms `abandonment' and `willful.' The term `abandonment,' as used in this legal proceeding, means there must be willful or intentional conduct on the part of the Respondent parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child, or a willful neglect and refusal to perform the natural and legal obligations of parental care and support.

"The term `willful,' Members of the Jury, as used in this legal proceeding, means that an alleged abandonment must be done purposely and deliberately, indicating a purpose to do it without authority, considerlessly, whether one has the right or not, in violation of the law. In determining whether or not this has been willful abandonment, you may consider whether the Respondent parent has withheld his presence from the child, his love, his care, the opportunity for the child to display affection. Also you may consider the willful neglect, if any, to lend support and maintenance to or for the benefit of the child.

"Now, Members of the Jury, the responsibility to provide a child food, clothing, and shelter endures constantly, and thus a failure to perform the parental duty to support and maintain a child may be considered by you in determining whether a parent has relinquished his claim to the child. However, such failure does not in and of itself constitute willful abandonment."

After some deliberation, the jury requested that these instructions be repeated and the judge complied. The second instruction did not differ from the first. We find that these instructions were not erroneous.

In Pratt v. Bishop, supra, Justice Sharp (now Chief Justice) gave an in depth review of what constitutes willful abandonment for the purposes of G.S. 48-2. Justice Sharp stated that

"abandonment 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. . . .

"Abandonment has also been defined as wilful neglect and refusal to perform the natural and legal obligations of parental care and support. It has been held that if 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. . . .

"Certainly a continued wilful failure to perform the parental duty to support and maintain a child would be evidence that a parent had relinquished his claim to the child. However, a mere failure of the parent of a minor child in the custody of a third person to contribute to its support does not in and of itself constitute abandonment. Explanations could be made which would be inconsistent with a wilful intent to abandon." (Citations omitted.) Pratt v. Bishop, supra, 257 N.C. at 501-02, 126 S.E.2d at 608.

In considering a request for an instruction, "the court is not required to charge the jury in the precise language of the instructions requested so long as the substance of the request is included in the charge." Faeber v. E. C. T. Corp., 16 N.C.App. 429, 430, 192 S.E.2d 1, 2 (1972). The respondent wished to emphasize that parents may explain why they have failed to support their child. Although this point was not specifically set out, the jury was told that the abandonment must be purposely and deliberately done. Willful neglect, if any, to provide support is to be considered by the failure to provide support does not, in and of itself, constitute willful abandonment. The court also related the respondent's evidence which showed that he did not have sufficient income to provide child support. Taken as a whole, this instruction was proper. See Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536 (1966).

Respondent contends that the court erred in failing to instruct the jury that, when it is unsure of the answer to the issue, it should consider the best interests of the child, and when the interests of the child and an adult are in conflict, this conflict should be resolved in the child's favor. We first note that this instruction was requested by the petitioner, not the respondent. Indeed, the instruction would most likely have been prejudicial to respondent. Furthermore, this passage, taken from G.S. 48-1(3), is a statement of legislative policy with respect to adoptions. A specific definition as to what constitutes an abandoned child is provided by G.S. 48-2(3a). This assignment of error is overruled.

Finally, respondent contends that the court erred in failing to grant his motion for a directed verdict and his motion for judgment notwithstanding the verdict. When taken in the light most favorable to the petitioner, the evidence was sufficient to support a finding that the respondent had willfully abandoned Jamie. G.S. 48-2(3a) defines an abandoned child as "any child who has been willfully abandoned at least six consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child." As earlier stated, willful abandonment is willful or intentional conduct showing an intent to forego all parental duties. Pratt v. Bishop, supra. The evidence showed that the respondent did not write, call or inquire about his son from March, 1976, until June, 1977. He knew his former wife was planning to remarry and he could have contacted the court to obtain her new address. She notified his parents as to her address in December, 1976, but did not hear from the respondent until June, 1977. The respondent failed to provide support for the child during the six months prior to the institution of this action. This evidence and the other evidence to which we have referred was sufficient to withstand the respondent's motions. We have carefully considered all of respondent's assignments of error and conclude that no prejudicial error has been shown.

No error.

ERWIN and HARRY C. MARTIN, JJ., concur.