Bost v. Van Nortwick

• Decision Date: 15 November 1994
• Docket Number: No. 9311DC995,9311DC995
• Citation: 449 S.E.2d 911,117 N.C.App. 1
• Court: North Carolina Court of Appeals
• Parties: Toni Davenport BOST, Plaintiff, v. Henry Christian VAN NORTWICK, Defendant. In re Sara Yvonne VAN NORTWICK. In re Christian Oliver VAN NORTWICK.

Page 911

449 S.E.2d 911

117 N.C.App. 1

Toni Davenport BOST, Plaintiff, v. Henry Christian VAN NORTWICK, Defendant.

In re Sara Yvonne VAN NORTWICK.

In re Christian Oliver VAN NORTWICK.

No. 9311DC995.

Court of Appeals of North Carolina.

Nov. 15, 1994.

Wyrick, Robbins, Yates & Ponton, L.L.P. by Robert A. Ponton, Jr. and Pamela P. Keenan, Raleigh, and Armstrong & Armstrong, P.A. by Marcia H. Armstrong, Smithfield, for respondent-appellant.

April E. Stephenson, Sanford, for appellant guardian ad litem.

ORR, Judge.

The facts of this case present this Court with a not uncommon scenario wherein a non-custodial parent lives in a community separate and apart from the community in which his ex-spouse, the custodial parent, and his children live. In this case, in addition, the ex-spouse subsequently has remarried and formed a happy, financially stable family unit that includes the custodial parent, her new spouse, and the children. This new family unit no longer needs the financial or emotional support of the non-custodial parent and has come to view the non-custodial parent as an intrusion upon the day-to-day activities and interactions of this new family unit. Subsequently, the custodial parent has sought to terminate the non-custodial parent's parental rights.

The specific facts of this case are such that the respondent father admittedly suffers from alcoholism and up until 1992 has been unable to maintain permanent employment. Further, the facts show that up until 1992 respondent has been financially inattentive to his children due to his alcoholism and lack of gainful employment. Defendant has not been able to maintain permanent relationships due to his alcoholic condition, and over the years he has sporadically visited his children, failing to see his children at all in 1988, the year respondent was convicted of driving while his license was permanently revoked and respondent ceased driving. Also in 1988, respondent moved to Greenville, North Carolina, to live with his mother; petitioner and the children, however, remained in Sanford.

The facts also show, however, that in 1990, respondent decided to cease consuming alcohol and began attending Alcoholics Anonymous. Further, respondent has been employed as an agricultural chemical salesman for SMI, a company out of Valdosta, Georgia The facts concerning petitioner mother, on the other hand, show that since her divorce from respondent in 1984, she has maintained steady employment with her family business located in Lee County and that on 3 December 1988, petitioner was remarried to Jim Bost, whom she had known since childhood. Jim Bost is the sole owner of a food processing company located in Lee County, and the trial court found that while respondent was not paying child support, "Mr. Bost did willingly make financial contributions to the household for the benefit of the children and between [petitioner] and [Mr. Bost] there are adequate financial resources to meet the financial needs of the children in the future, including college educations."

since March, 1992. Subsequently, in June, 1992, respondent paid $750.00 in back child support, and on 22 July 1992 respondent paid $7,750.00 in back child support. In addition, respondent visited the children once [117 N.C.App. 6] in 1989, once in 1990, three times in 1991, and three times in 1992 prior to petitioner filing this action in May, 1992. Based on her review of these and other facts, the guardian ad litem appointed to represent the interests of the children in this case recommended that it would not be in the best interest of the children to terminate respondent's parental rights.

The trial court also found that Mr. Bost, petitioner, and the children reside in a four bedroom, five bathroom home situated in Lee County, surrounded by twenty acres of land, which home adjoins a residential neighborhood where the children have numerous friends. The court further found:

Each of the children has developed a happy and secure relationship with their family as they know it, with this family being [petitioner] as mother, Jim Bost as father, the Davenports[, petitioner's parents,] as the paternal [sic] grandparents and Pete Bost[, Mr. Bost's mother,] as the maternal [sic] grandmother. The children identify with the Davenports and Bosts as their aunts and uncles and see the Bost children as their cousins. Each of the children wants to stay within this family network and considers [respondent's] presence in their lives to be a painful disruption.

Additionally, the court found that petitioner and Mr. Bost want Mr. Bost to adopt the children and that "Mr. Bost will in fact adopt the children at such time as it is legally proper to do so." Thus, this Court is presented with a situation wherein the petitioner mother and children have formed a happy, financially stable family unit with petitioner's new husband, and subsequently, respondent, the natural father of the children, has become a disruption to this new family unit.

Article 24B of Chapter 7A of the North Carolina General Statutes governs termination of parental rights. "Under the requirements of Chapter 7A, the trial court must make a two-step inquiry. First, it must consider whether substantial grounds exist for the termination of parental rights." In re McMahon, 98 N.C.App. 92, 94, 389 S.E.2d 632, 633 (1990). Second, upon a finding that substantial grounds exist for termination of parental rights, the court must "determine whether the termination of parental rights is in the best interest of the child." Id.; N.C.Gen.Stat. § 7A-289.31.

N.C.Gen.Stat. § 7A-289.31 states:

(a) 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.

(b) Should the court conclude that irrespective of the existence of one or more circumstances authorizing termination of parental rights, the best interests of the child require that such rights should not be terminated, the court shall dismiss the petition, but only after setting forth the facts and conclusions upon which such dismissal is based.

(Emphasis added.) Thus, "upon a finding that grounds exist to authorize termination, the trial court is never required to terminate parental rights under any circumstances, but is merely given the discretion to do so." In re Tyson, 76 N.C.App. 411, 419, 333 S.E.2d 554, 559 (1985). "[W]here there is a reasonable In the present case, the trial court terminated respondent's parental rights based on willful failure to support the children, willful abandonment of the children, neglect, and on its finding that terminating respondent's parental rights was in the best interest of the children. In reviewing this case to determine whether the trial court properly granted petitioner's wish to terminate respondent's parental rights, we must keep in mind that the overriding consideration is the welfare or best interest of the children, in light of all the circumstances. See Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994).

hope that the family unit within a reasonable period of time can reunite and provide for the emotional and physical welfare of the child, the trial court is[, therefore,] given discretion not to terminate rights." In re Montgomery, 311 N.C. 101, 108, 316 S.E.2d 246, 251 (1984).

The best interest of the children is " ' "... 'the polar star by which the discretion of the court is guided.' " ' " Id. at 354, 446 S.E.2d at 23 (quoting Hinkle v. Hinkle, 266 N.C. 189, 197, 146 S.E.2d 73, 79 (1966)). In the case sub judice, the trial court concluded,

[g]iven that the children are thriving under their present circumstances, the presence of a complete family structure able to meet the emotional and economic needs of the children, the expressed desire of the children not to see their father, their desire to be adopted by Jim Bost and the pain and disruption involved with any attempt at reestablishing a relationship, the [c]ourt finds as a fact that it would not be in the best interest of the children to follow the Guardian Ad Litem's reccommendations [sic] and furthermore that termination is in their best interest.

Based on our review of the record, we find that the trial court abused its discretion in concluding that it was in the best interest of the children to terminate respondent's parental rights.

First, a finding that the children are well settled in their new family unit made up of petitioner, Mr. Bost, and the children, does not alone support a finding that it is in the best interest of the children to terminate respondent's parental rights. In Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), a recent decision involving a custody dispute between the biological parents of the child and persons with whom the biological mother had placed the child, our Supreme Court focused on the paramount right of a child's natural parents to the custody, care and nurturing of that child to award custody of the child to the natural parents. The Court stated:

Although a trial court "might find it to be in the best interest of a legitimate child of poor but honest, industrious parents" that his custody be given to a more affluent person, such a finding "could not confer a right as against such parents who had not abandoned their child, even though they had permitted him to spend much time" with the more affluent person.... Instead, "parents' paramount right to custody would yield only to a finding that they were unfit custodians because of bad character or other, special circumstances....."

Id. at 403, 445 S.E.2d at 904 (citation omitted). Similarly, in the present case, the finding that Mr. Bost could provide a more stable environment and better financial...