An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-205
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
IN THE MATTER OF:
C.V.M. Surry County
No. 13 JT 63
Appeal by respondent from orders entered 13 November 2013
by Judge Charles M. Neaves, Jr. in Surry County District Court.
Heard in the Court of Appeals 18 August 2014.
Gretchen Kirkman for petitioner-appellee mother.
David A. Perez for respondent-appellant father.
No brief filed for guardian ad litem.
HUNTER, Robert C., Judge.
Respondent, the father of C.V.M. (“the juvenile”), appeals
from orders terminating his parental rights. After careful
review, we hold statutory grounds exist for the termination of
respondent’s parental rights. Accordingly, we affirm the trial
court’s orders.
Background
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The thirteen-year-old juvenile has been in the physical
custody of her mother, the petitioner, since her birth.
Respondent neither married nor lived with petitioner. He
visited with the juvenile sporadically prior to her first
birthday. When the juvenile was one-year-old, respondent was
arrested for kidnapping petitioner, stabbing her repeatedly with
a knife, leaving her in a field, and then attempting to drive
into the building where the juvenile was staying. Petitioner
had a restraining order against him prior to the attack.
Respondent has been incarcerated since that time and petitioner
testified that he would be released on 19 October 2013.
Petitioner intends to marry her boyfriend of seven years, and he
would like to adopt the juvenile. The juvenile wants
respondent’s parental rights to be terminated, and she wants to
be adopted by petitioner’s boyfriend.
On 3 July 2013, petitioner filed a petition to terminate
respondent’s parental rights. The petition alleged that
respondent neglected and willfully abandoned the juvenile. The
trial court held an adjudication and disposition hearing on 11
September 2013, and, on 13 November 2013, entered orders
terminating respondent’s parental rights pursuant to N.C. Gen.
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Stat. § 7B-1111(a)(1) (neglect) and (7) (willful abandonment).
Respondent appeals.
Grounds for Appeal
We first address whether respondent’s appeal is properly
before this Court. Recognizing that his appeal is subject to
dismissal because he did not serve the guardian ad litem with
his notice of appeal, see Mason v. Moore County Bd. of Comm’rs,
229 N.C. 626, 628, 51 S.E.2d 6, 7 (1948), respondent filed a
petition for writ of certiorari seeking review of the orders.
Petitioner has also filed a motion to dismiss this appeal based
on respondent’s failure to serve the guardian ad litem with
notice of appeal. We deny petitioner’s motion to dismiss the
appeal, and dismiss respondent’s petition for writ of certiorari
as moot, because the guardian ad litem waived the failure of
service when she and petitioner filed a joint Motion for
Extension of Time to File and Serve Brief. See Hale v. Afro-
American Arts Int’l, 335 N.C. 231, 232, 436 S.E.2d 588, 589
(1993).
Arguments
Respondent argues that the trial court erred in concluding
grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to
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terminate his parental rights because its findings of fact were
not supported by sufficient evidence. We disagree.
Termination of parental rights cases are conducted in two
stages. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d
906, 908 (2001). At the adjudicatory stage of a termination of
parental rights hearing, the burden is on the petitioner to
prove by clear, cogent, and convincing evidence that at least
one ground for termination exists. N.C. Gen. Stat. § 7B-1109(f)
(2013); Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.
Review in the appellate courts is limited to determining whether
clear and convincing evidence exists to support the findings of
fact, and whether the findings of fact support the conclusions
of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840
(2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).
“When the trial court is the trier of fact, the court is
empowered to assign weight to the evidence presented at the
trial as it deems appropriate.” In re Oghenekevebe, 123 N.C.
App. 434, 439, 473 S.E.2d 393, 397 (1996). “[F]indings of fact
made by the trial court . . . are conclusive on appeal if there
is evidence to support them.” In re H.S.F., 182 N.C. App. 739,
742, 645 S.E.2d 383, 384 (2007) (citation and internal quotation
marks omitted).
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Grounds exist to terminate parental rights when the parent
has neglected the juvenile. N.C. Gen. Stat. § 7B-1111(a)(1)
(2013). A neglected juvenile is defined as “[a] juvenile who
does not receive proper care, supervision, or discipline from
the juvenile’s parent, guardian, custodian, or caretaker; or who
has been abandoned; . . .” N.C. Gen. Stat. § 7B-101(15) (2013).
“In determining whether neglect has occurred, the trial judge
may consider . . . a parent’s complete failure to provide the
personal contact, love, and affection that exists in the
parental relationship.” In re Yocum, 158 N.C. App. 198, 204,
580 S.E.2d 399, 403 (citation, internal quotation marks, and
brackets omitted), aff’d per curiam, 357 N.C. 568, 597 S.E.2d
674 (2003). We note that “[i]ncarceration, standing alone, is
neither a sword nor a shield in a termination of parental rights
decision.” In re P.L.P., 173 N.C. App. 1, 10, 618 S.E.2d 241,
247 (2005) (citation and quotation marks omitted), aff’d per
curiam, 360 N.C. 360, 625 S.E.2d 779 (2006). Nevertheless,
neglect exists when an incarcerated respondent “neither
provide[s] support for the minor child nor s[eeks] any personal
contact with or attempt[s] to convey love and affection for the
minor child.” In re Bradshaw, 160 N.C. App. 677, 682, 587
S.E.2d 83, 86 (2003). “The determinative factors must be the
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best interests of the child and the fitness of the parent to
care for the child at the time of the termination proceeding.”
In re Manus, 82 N.C. App. 340, 348, 346 S.E.2d 289, 294 (1986)
(quoting In re Ballard, 311 N.C. 708, 715, 319 S.E. 2d 227, 232
(1984)) (emphasis in original).
In this case, the trial court found the following relevant
facts:
14. The respondent has been incarcerated since
the minor child was one year old due to an
assault on the petitioner wherein he plead [sic]
guilty to assault with a deadly weapon with
intent to kill inflicting serious injury.
15. The minor child has been in the physical
custody of the petitioner since birth . . . .
16. The respondent was aware of the
petitioner’s address for many years after his
incarceration. The respondent was aware of the
petitioner’s mother’s address as well as her
father’s address. The respondent has never
contacted the petitioner’s mother or father since
his incarceration in 2001 asking about the health
and welfare of the minor child. The respondent
has not contacted the petitioner asking about the
health and welfare of the minor child since 2001.
. . .
18. The respondent has not filed any pleadings
or motions requesting visitation via skype or
phone contact with the minor child since he was
incarcerated in 2001.
19. The respondent has not been prohibited or
precluded from having contact with the minor
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child. The respondent has voluntarily chosen to
have no contact with the minor child since 2003.
20. The minor child has not seen the respondent
since she was one year old. Prior to the
respondent’s incarceration when the child was one
year old, the minor child only had contact with
the respondent a few times.
21. The respondent has not provided any care,
supervision, discipline or love and affection for
the minor child since 2003.
22. Since the minor child’s birth, the
respondent has never supported the minor child
financially or emotionally.
23. The minor child does not know the
respondent and does not have a bond with the
respondent.
24. Whenever the respondent was incarcerated in
2001, the petitioner was living with [E.R.M.],
her grandmother. The respondent knew that the
petitioner and minor child were living with
[E.R.M.]. [E.R.M.] still lives at the same
address and has the same phone number. The
respondent knew the address (he had been there on
different occasions and knew the phone number
because he had called the number at different
times). The respondent has not called [E.R.M.]’s
home or sent any correspondence asking about the
welfare of the minor child since 2001. The
respondent never sent any letters or presents to
the minor child at this address since 2001.
Nothing precluded the respondent from calling
[E.R.M.]’s number or sending correspondence or
gifts to her address. The petitioner’s mother
([E.R.M.]) has never sought a restraining order
against the respondent and there has never been a
restraining order entered wherein the respondent
was prohibited from contacting the petitioner’s
mother. (Again, the petitioner received a
restraining order against the respondent which
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expired in March, 2003 which precluded the
respondent from being at [E.R.M.]’s residence.)
25. The respondent knew the petitioner’s father
([C.M.]), knew his address and phone number. The
respondent had called [C.M.]’s number and been to
his residence. The respondent has not called
[C.M.]’s home or sent any correspondence asking
about the welfare of the minor child. The
respondent never sent any letters or presents to
the minor child at this address. Nothing
precluded the respondent from calling [C.M.]’s
number or sending correspondence or gifts to his
address for the child. [C.M.] never had a
restraining order against the respondent, nor did
he ever notify him or the prison that he was not
allowed to contact him or send correspondence to
that home. [C.M.] has had to help the petitioner
in the past, financially, to care for the minor
child where the respondent was not sending any
support for the care of the child.
26. The minor child, [C.V.M.] testified during
trial during the adjudication and disposition
phases. . . . The minor child never sought a
restraining order against the respondent. The
minor child never received a phone call, money,
or a gift from the respondent.. . . Other than
seeing the respondent in court on September 11,
2013 the minor child has no memory of the
respondent. The minor child never prohibited the
respondent from having any contact with her.
27. The minor child, [C.[V.]M.], has an older,
half sister named [B.N.M.]. In 2003 the
respondent sent letters to [B.[N.]M.]’s school
for the petitioner. Since 2003 [B.[N.]M.] has not
been contacted by the respondent concerning the
minor child. . . . [B.N.M.] has never contacted
the respondent or prison notifying the respondent
that he could have not have any contact with her
or [C.[V.]M.]. [B.N.M.] has never had a
restraining order against the respondent.
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28. The respondent, [E.W.], has been
incarcerated since 2001. Since 2003 the
respondent has not sent the minor child any
letters, cards or gifts. Since 2001 the
respondent has not sent any money for the care
and support of the minor child. The respondent
worked in jail in the kitchen. Also, at times,
the respondent sold drugs and tattoos in jail.
Although the respondent made a nominal amount of
money, the respondent could have sent something
for the care and support of the minor child, but
chose not to.
29. The aforementioned acts of neglect and
abandonment were voluntary, willful and
intentional on the part of the respondent. The
actions, and inaction, of the respondent show a
settled purpose to forego all parental duties and
relinquish all parental claims to the minor
child.
Respondent argues that findings of fact 16, 19, 20, 21, 22, 24,
25, 28, and 29 are not supported by evidence. Respondent also
challenges findings of fact 9, 12, and 13, but we do not address
his arguments because these findings are not essential to
support the trial court’s conclusion. See In re T.M., 180 N.C.
App. 539, 547, 638 S.E.2d 236, 240-41 (2006). Respondent does
not challenge any other findings of fact regarding this
argument, and they are binding on appeal. Koufman v. Koufman,
330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Respondent also
argues that conclusion of law number 3, that there is clear,
cogent and convincing evidence of neglect, is erroneous. We
disagree.
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For the first year of C.V.M.’s life, respondent did not
provide housing or financial support. He did not provide child
support. He did not take her to the doctor. He had sporadic
visits with her and did not request additional contact,
visitation, or custody.
The only contact respondent made with C.V.M. in the twelve
years he was incarcerated was one birthday card in 2002 or 2003,
which was included in letters addressed to petitioner. The
grandmother of one of respondent’s children pulled petitioner’s
older child out of the classroom without permission in order to
give her this correspondence, which was all addressed to
petitioner. The grandmother continued to do this after
petitioner asked her to stop, so petitioner contacted the
Department of Corrections. The prison superintendent issued a
letter to respondent in January 2004 informing him to cease
contacting petitioner either directly or indirectly. Petitioner
initially had a protective order against respondent, but it did
not include C.V.M. and expired in 2003.
While respondent may have erroneously thought he was not
allowed to contact C.V.M. or her family members, he made no
effort to clarify that in the following ten years. After 2003,
respondent did not call, write, or in any way contact C.V.M.
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even though he knew her home address, home phone number,
petitioner’s work address and phone number, the phone number of
her grandfather, and the phone number of her great grandparents.
Nor did he provide any financial support, although he had
various jobs in prison including working in the kitchen and
earned additional money for himself by selling illegal drugs and
inking illegal tattoos.
Respondent knew and had means to communicate with his
family members and petitioner’s family members who lived in the
same town. These included petitioner’s parents and
grandparents; her older daughter; respondent’s older son and his
mother and grandmother; his mother; and his brother. However,
he never used his family members to get in contact with C.V.M.
None of those family members were prohibited from contacting
C.V.M. or petitioner, and, in fact, members of respondent’s
family had several chance encounters with petitioner and C.V.M.
at local establishments.
Despite the fact that defendant had at least ten years free
from protective orders and contact prohibitions and the fact
that he had the ability to reach out to C.V.M. through multiple
family members in close proximity, defendant chose not to
contact C.V.M. or provide her with any emotional or financial
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support. Given the plenary evidence, we conclude that the trial
court’s findings of fact supporting the grounds for termination
pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) (neglect) were based
on clear, cogent, and convincing evidence.
Respondent argues further that the trial court erred in
finding evidence to support grounds pursuant to N.C. Gen. Stat.
§ 7B-1111(a)(7) (willful abandonment). We do not address that
argument, however, because a finding of one statutory ground is
sufficient to support the termination of parental rights. In re
Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003).
Conclusion
Based on the foregoing reasons, we affirm the trial
court’s orders terminating respondent’s parental rights.
Affirmed.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).