Matter of Smith

287 S.E.2d 440 (1982)

In The Matter Of Sharon Denise SMITH, Date of Birth: 6/2/70 Christopher Michael Smith, Date of Birth: 12/12/72.

No. 8114DC625.

Court of Appeals of North Carolina.

March 2, 1982.

Thomas Russell Odom, Durham, for petitioner-appellee.

John C. Randall, Durham, guardian ad litem, appellee.

North Central Legal Assistance Program by Leowen Evans, Durham, for respondent-appellant.

HARRY C. MARTIN, Judge.

Respondent first contends that the trial court erred in failing to grant her motion to dismiss, arguing that petitioner "failed to submit sufficient evidence to establish a ground by which parental rights could be terminated." Respondent argues that (1) petitioner's witnesses had no firsthand knowledge of the facts in controversy; (2) petitioner relied extensively on inadmissible foster care records; and (3) petitioner relied upon inadmissible findings of fact from prior judicial proceedings. Respondent further argues that the court's conclusions of law were not supported by clear, cogent and convincing evidence, and finally that the termination of parental rights violated her right to family integrity without due process of law. We do not agree.

The statute provides in pertinent part:

Grounds for terminating parental rights.—The court may terminate the parental rights upon a finding of one or more of the following:

....

(2) The parent has abused or neglected the child. The child shall be deemed to be ... a neglected child within the meaning of G.S. 7A-278(4).

(3) The parent has willfully left the child in foster care for more than two consecutive years without showing to the satisfaction of the court that substantial progress has been made within two years in correcting those conditions which led to the removal of the child for neglect, or without showing positive response within two years to the diligent efforts of a county department of social services ... to encourage the parent to strengthen the parental relationship to the child or to make and follow through with constructive planning for the future of the child.

N.C.Gen.Stat. § 7A-289.32 (Cum.Supp. 1979).

We first direct our attention to respondent's contention that the court "used the wrong statute in defining ``abandonment.'" The court's reference to N.C.G.S. 7A-517 is entirely correct. As is pointed out in the Editor's Note to N.C.G.S. 7A-289.32 (1981), section 7A-278 referred to in 7A-289.32(2) was repealed and reference is made to the North Carolina Juvenile Code, including the following definition:

(21) Neglected Juvenile. A juvenile who does not receive proper care, supervision, or discipline from his parent ... or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare ....

N.C.Gen.Stat. § 7A-517(21) (Cum.Supp. 1979).

This language tracks the language appearing in former N.C.G.S. 7A-278(4). Thus the definition of neglect, including abandonment, appeared in the statutes prior to the filing of this petition. The reference numbers were changed as a result of the recodification of the juvenile code.

Respondent also objects to the inclusion of N.C.G.S. 7A-289.32(3) as a ground for termination of her parental rights. The record shows that at the close of its evidence, petitioner moved to amend the complaint to add this statutory ground. The court allowed the motion pursuant to Rule 15 of the North Carolina Rules of Civil Procedure, finding that the allegations in the complaint put respondent on notice that the provisions in both N.C.G.S. 7A-289.32(2) and (3) would provide grounds for the termination. We find, too, that petitioner's evidence and the testimony elicited by respondent on cross-examination bring the amendment within N.C.R.Civ.P. 15(b), Amendments to Conform to the Evidence.

Based on the testimony contained in the record before us, we find that petitioner offered sufficient evidence to establish grounds for termination of parental rights under both N.C.G.S. 7A-289.32(2) and (3). Respondent, however, challenges the admissibility of the testimony on three separate evidentiary theories.

Petitioner offered the testimony of Kathy Brock and Nancy Berson, both of whom were social workers with the Durham County Department of Social Services. Neither of the two witnesses had worked on the Smith case until after the petition had been filed. Thus, argues respondent, their testimony was incompetent on matters occurring prior to their first contact with respondent. While it is true that the witnesses had no firsthand knowledge of the events that took place between 1970 and when they assumed responsibility of the case, each had familiarized herself with the case history of the client based on the records kept by the department of social services. Those records were admissible under the business records exception to the hearsay rule. 1 Stansbury's N.C. Evidence § 155 (Brandis rev. 1973). Witness Brock testified that the records were made in the regular course of business, at or near the time of the transactions involved. Respondent's counsel moved for an order compelling petitioner to produce its files and records pertaining to the matter, which motion was granted. Respondent referred to the records in her cross-examination of the witnesses in order to elicit facts favorable to her position. Finally, the records are corroborative of stipulated facts and the testimony of the respondent herself. Respondent's counsel stipulated that the court might take judicial notice of the finding of neglect with respect to both children made by the previous trial court.

In short, the court was correct in recognizing that this case could not be decided in a vacuum. The procedural and factual history of the case was relevant and necessary to a full and fair determination of the issues.

Respondent argues that the trial court's conclusion that her rights to the children be terminated was not supported by clear, cogent and convincing evidence. We cannot agree. We consider respondent's continuous contact with the department of social services over nearly a ten-year period, its effort to stimulate her initiative through an intensive provision of services, and her complete failure to maintain any meaningful contact with the children, clear evidence that respondent "willfully left the [children] in foster care for more than two consecutive years without showing ... that substantial progress [had] been made ... in correcting those conditions which led to the removal of the [children] for neglect." N.C.Gen.Stat. § 7A-289.32(3) (Cum.Supp.1979). In addition, we find clear evidence that respondent abandoned the children as contemplated by N.C. G.S. § 7A-517(21).

"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 ...."

In re Cardo, 41 N.C.App. 503, 507-08, 255 S.E.2d 440, 443 (1979) (emphasis ours).

Moreover, respondent failed to except to findings of fact 54 and 55. These findings are in the language of N.C.G.S. 7A-289.32, establishing grounds for terminating respondent's parental rights. By failing to except to the findings of fact, they are deemed to be supported by competent evidence and are conclusive on appeal. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962); Ply-Marts, Inc. v. Phileman, 40 N.C.App. 767, 253 S.E.2d 494 (1979). Nevertheless, because respondent did except to conclusions of law 1 and 2, which are identical to findings of fact 54 and 55, we have made the foregoing analysis of the evidence.

We hold the findings of fact are supported by clear, cogent, convincing and competent evidence. They are, therefore, conclusive upon appeal. Whitaker v. Everhardt, 289 N.C. 260, 221 S.E.2d 316 (1976); General Specialities Co. v. Teer Co., 41 N.C. App. 273, 254 S.E.2d 658 (1979). The findings sustain the conclusions of law and the judgment entered.

Respondent's final argument that her constitutional right to family integrity and companionship of her children has been violated is without merit. Respondent does not contend that the statute is unconstitutional, but that it was unconstitutionally applied in this case, because the evidence did not establish a statutory ground to terminate her parental rights. The constitutionality of the statute was upheld by this Court in In re Biggers, 50 N.C.App. 332, 274 S.E.2d 236 (1981). See also In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981). As detailed above, the evidence amply supports not one but several of the statutory grounds required to terminate parental rights. Through her own acts of neglect and inaction, respondent has never established a relationship with her children. The evidence overwhelmingly points to a total absence of family integrity since these children were born.

N.C.G.S. 7A-289.31(a) (Cum.Supp.1979) provides:

Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the child unless the court shall further determine that the best interests of the child require that the parental rights of such parent not be terminated.

It is thus within the court's discretion to consider such factors as family integrity in making its decision of whether termination is in the best interests of the children. The children's best interests are paramount, not the rights of the parent. Sharon and Christopher have never known the security of a permanent home. The tragedy is theirs. Far from an abuse of discretion, the trial court's decision to terminate respondent's parental rights has afforded these children their only chance for a normal, happy family life.

Petitioner raises a cross-assignment of error to the court's order providing a copy of the transcript to counsel without cost to respondent. The petition in the case was filed prior to the effective date of the amendment to N.C.G.S. 7A-451(a) which now entitles indigent parents to appointed counsel in termination proceedings. For that reason the federally funded Legal Services Corporation undertook to represent respondent, and it was that organization that made a determination of indigency in the first instance. The trial court's decision to permit respondent to proceed in forma pauperis was, moreover, based on a simple assertion of poverty, without inquiry as to her financial status. We agree that the costs of the transcript should be taxed to the North Central Legal Assistance Program.

We affirm the trial court's decision to terminate respondent's parental rights. The court's order respecting the costs of the transcript is vacated.

Affirmed in part; vacated in part.

MORRIS, C. J., and VAUGHN, J., concur.