In Re Wright

306 S.E.2d 825 (1983)

In re WRIGHT, A Minor.

No. 8211DC326.

Court of Appeals of North Carolina.

September 20, 1983.

Ashley, Holland, Wellons & Whitley by W.A. Holland, Jr., Smithfield, for petitioner-appellee Johnston County Dept. of Social Services.

Spence & Spence by Robert A. Spence, Jr., Smithfield, guardian ad litem for petitioner-appellee Jennifer Marie Wright.

Mast, Tew & Armstrong by Allen R. Tew, Clayton, guardian ad litem for respondents-appellants Linda Gail Wright and Richard Robinson.

PHILLIPS, Judge.

None of the material findings of fact, showing that the respondent Linda Gail Wright permitted the child to live in filth, failed and refused to obtain necessary medical care for her, both when she had a broken femur and later when she had sores all over her body, and that both respondents failed to pay anything toward the cost of the child's foster care during the six months preceding the filing of the petition, were excepted to. All are supported by evidence and are therefore conclusive. Davis v. Mitchell, 46 N.C.App. 272, 265 S.E.2d 248 (1980). They also amply support the conclusions of law and resultant decision that the child's best interests require that the parental relationship be terminated. The respondents' several assignments of error, all based upon technical and constitutional grounds, though ably and earnestly presented, are without merit, and the order terminating the parental rights of respondents to the child Jennifer Marie Wright is herewith affirmed.

The contention that a new trial should be ordered because of the failure of the recording device used at the hearing is accompanied by no showing that respondents' rights on appeal have been prejudiced by the absence of an accurate and complete transcript of the proceeding. Use of the recording device was stipulated to and no evidence favorable to respondents that a transcript would have contained has been suggested. In re Peirce, 53 N.C.App. 373, 281 S.E.2d 198 (1981). Furthermore, the respondents' record on appeal shows that they offered no evidence at the hearing, and it is apparent from the pleadings and assignments of error that their reliance from the outset has been on the unconstitutionality of the statutes proceeded under, rather than on any evidence of their's or any weakness in the petitioner's evidence.

G.S. 7A-289.32(2), authorizing the court to terminate parental rights upon a finding that a parent has "neglected" the child, is not unconstitutionally vague. In our jurisprudence, the word "neglected" in regard to children is well understood, as numerous decisions of our Supreme Court and this Court attest. Matter of Allen, 58 N.C.App. 322, 293 S.E.2d 607 (1982); Matter of Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), appeal dismissed, ___ U.S. ___, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983); In re Huber, 57 N.C.App. 453, 291 S.E.2d 916, appeal dismissed, 306 N.C. 557, 294 S.E.2d 223 (1982); In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); In re Biggers, 50 N.C. App. 332, 274 S.E.2d 236 (1981). That the word applies to the child in this case would be readily recognized by ordinary people everywhere, we feel sure. People of all societies and cultures, even the most backward and primitive, know that parents have the duty to safeguard and protect the health and safety of their children—a duty, according to the record, that was flagrantly disregarded in this instance. Nor is the statute applicable only to the poor, as respondents contend, and thus violative of their rights to equal protection of the law; the statute applies to all persons similarly situated and is reasonably related to the welfare and safety of the public. In re Huber, supra, 57 N.C.App. at 458, 291 S.E.2d at 919. Respondents' parental rights have not been terminated because of their poverty, but because of their aggravated and prolonged indifference to the health, safety and well-being of their offspring.

It was ingeniously argued upon behalf of respondent Robinson, the child's father, that G.S. 7A-289.32(4), authorizing parental rights to be terminated upon a parent's failure for six month preceding the filing of the petition to pay a reasonable portion of the cost of caring for the child, is unconstitutional as applied to him, in that the statute does not require notice that payment is due, no notice was received by him, and because he had received public assistance all of his life, he was unaware that anything was expected or required of him. Though this argument is novel, it is unavailing. Very early in our jurisprudence, it was recognized that there could be no law if knowledge of it was the test of its application. Too, that respondent did not know that fatherhood carries with it financial duties does not excuse his failings as a parent; it compounds them.

Affirmed.

WEBB and BECTON, JJ., concur.