In re J.T.C., No. COA19-252

• Docket Nº: No. COA19-252
• Citation: 847 S.E.2d 452
• Case Date: August 18, 2020
• Court: Court of Appeal of North Carolina (US)

847 S.E.2d 452

In the MATTER OF: J.T.C.

No. COA19-252

Court of Appeals of North Carolina.

Filed: August 18, 2020

Mark L. Hayes, for petitioner-appellee.

Leslie Rawls, Charlotte, for respondent-appellant.

ARROWOOD, Judge.

Respondent-father, father of "Jeffrey,"² appeals from the trial court's order granting the petition filed by Jeffrey's mother ("Petitioner") for the termination of his parental rights. For the following reasons, we affirm.

I. Background

Jeffrey was born in Nash County, North Carolina, in November 2010. Petitioner and Respondent-father never married but lived together with Jeffrey for a period after his birth.

On 8 June 2011, Petitioner obtained a domestic violence protective order ("DVPO") against Respondent-father after he threatened her and choked her until she lost consciousness. The trial court found Jeffrey had been exposed to the violence and granted Petitioner temporary custody for the duration of the DVPO, which expired on 7 June 2012.

Petitioner and Respondent-father temporarily reunited. Respondent-father was subsequently incarcerated. Following his release from prison in November 2014, Respondent-father engaged in additional domestic violence against Petitioner resulting in the entry of a second DVPO on 6 January 2015. The DVPO granted Petitioner temporary custody of Jeffrey until 7 April 2015 and expired on 7 July 2015. Petitioner and Respondent-father did not resume their relationship thereafter. Petitioner arranged any visits between Respondent-father and Jeffrey after the expiration of that DVPO. At Petitioner's invitation, Respondent-father came to Jeffrey's birthday party in November 2015, visited Jeffrey around Christmas at Wal-Mart in December 2015, and attended a birthday party in April 2016 for one of Jeffrey's friends for approximately three hours.

On 12 December 2016, Petitioner filed a petition in Nash County District Court to terminate Respondent-father's parental rights pursuant to Article 11 of Chapter 7B of the North Carolina General Statutes. After a hearing on 12 April 2018, the trial court

847 S.E.2d 455

adjudicated grounds for termination existed based on Respondent-father's neglect and willful abandonment of Jeffrey under N.C. Gen. Stat. § 7B-1111(a)(1) and (7) (2019). The court held a dispositional hearing on 2 August 2018 and further determined that terminating Respondent-father's parental rights was in Jeffrey's best interest. Respondent-father gave timely notice of appeal from the termination of parental rights order ("the termination order").

II. Discussion

A. Standard of Appellate Review

We employ a familiar two-part framework on appeal from an order terminating parental rights. "We review a trial court's adjudication under N.C. [Gen. Stat.] § 7B-1111 ‘to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law.’ " Matter of E.H.P. , 372 N.C. 388, 392, 831 S.E.2d 49, 52 (2019) (quoting In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984) ). "We review de novo whether a trial court's findings support its conclusions." Matter of Z.D. , 258 N.C. App. 441, 443, 812 S.E.2d 668, 671 (2018). With regard to disposition, " ‘[w]e review the trial court's conclusion that a termination of parental rights would be in the best interest of the child on an abuse of discretion standard.’ " Matter of A.H. , 250 N.C. App. 546, 565, 794 S.E.2d 866, 879 (2016) (quoting In re R.B.B. , 187 N.C. App. 639, 648, 654 S.E.2d 514, 521 (2007) ). The trial court's dispositional findings under N.C. Gen. Stat. § 7B-1110(a) need only be supported by competent evidence. See id. at 565, 794 S.E.2d at 879-80 ; see also In re Eckard , 144 N.C. App. 187, 197, 547 S.E.2d 835, 841, remanded for reconsideration on other grounds , 354 N.C. 362, 556 S.E.2d 299 (2001).

For purposes of appellate review, findings of fact to which no exception is taken are binding. In re H.S.F. , 182 N.C. App. 739, 742, 645 S.E.2d 383, 384 (2007) (citing Koufman v. Koufman , 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) ). Furthermore, "erroneous findings unnecessary to the determination do not constitute reversible error" where the trial court's remaining findings independently support its conclusions of law. In re T.M. , 180 N.C. App. 539, 547, 638 S.E.2d 236, 240 (2006).

B. Respondent-father's Arguments on Appeal

1. Findings of Fact

Respondent-father challenges the following two findings of fact as not supported by the evidence:

21. Respondent[-father] has not shown adequate interest with regard to raising and supporting the minor child.

22. Respondent[-father] has not declared or shown love for the minor child throughout this proceeding.

He contends the hearing "transcript directly contradicts and undermines these findings."

Initially, we note the trial court's order does not divide or otherwise distinguish its adjudicatory findings from its dispositional findings. Moreover, the court purports to make all of its findings "based on clear, cogent, and convincing evidence[.]"

From our examination of the order, it appears the trial court arranged its findings of fact sequentially. Findings 1-8 establish the basis for the trial court's jurisdiction in the cause. Findings 9-12 are adjudicatory in nature, addressing Petitioner's asserted grounds for termination under N.C. Gen. Stat. § 7B-1111(a)(1) and (7). Findings 13-25 are dispositional, addressing the statutory criteria in N.C. Gen. Stat. § 7B-1110(a)(1)-(6) as a basis for determining Jeffrey's best interest. It thus appears the trial court did not rely on Findings 21 and 22 to support its adjudications, only its disposition.

Regardless of whether the contested findings are adjudicatory or dispositional, we find ample evidence to support Finding 21. At the adjudicatory hearing,³ Petitioner

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testified Respondent-father had paid nothing toward Jeffrey's support in the preceding three years and had no contact with Jeffrey since attending an event at a skating rink at Petitioner's invitation in April 2016.

Petitioner described Respondent-father's conduct while they lived together with Jeffrey as follows:

There was a lot of domestic violence. [Respondent-father] had a lot of drug issues. He was always using. He was never really home. I cannot really say that he supported his child. Even though we did stay in the same house. He was there (inaudible). He was not a good father figure to his child.

Petitioner also testified that although the initial DVPO issued in 2011 provided Respondent-father with the right to visit Jeffrey, Respondent-father did not exercise his visitation rights. Likewise, after the second DVPO expired on 7 July 2015, Respondent-father made no attempt to contact Petitioner to see Jeffrey or to provide support for the child. Respondent-father saw Jeffrey on just three occasions after 7 July 2015: at Jeffrey's birthday party in November 2015, on Christmas of 2015, and at the skating rink in April 2016. On each occasion, it was Petitioner who reached out to Respondent-father and invited him to see his son. Respondent-father did not bring any gifts for Jeffrey to these events or pay any amount toward the scheduled activities.

Petitioner affirmed Respondent-father had not seen Jeffrey or made any attempt to contact or provide support for the child in the eight months that preceded her filing of the petition in this cause on 12 December 2016. Although Respondent-father's relatives contacted Petitioner asking to see Jeffrey after she filed her petition, they did not mention Respondent-father. Respondent-father's wife also attempted to contact Petitioner on Facebook, saying she and Respondent-father wanted to see Jeffrey, but did so only "a full seven months" after the petition was filed.

Respondent-father, his wife, and his aunt testified at the adjudicatory hearing and disputed aspects of Petitioner's testimony. It is well-established, however, that "[c]redibility, contradictions, and discrepancies in the evidence are matters to be resolved by the trier of fact, here the trial judge, and the trier of fact may accept or reject the testimony of any witness." Smith v. Smith , 89 N.C. App. 232, 235, 365 S.E.2d 688, 691 (1988) (citation omitted).

Moreover, Respondent-father acknowledged not having seen Jeffrey since April 2016 at the skating rink and having neither provided support for, nor "filed for custody" of, Jeffrey. Respondent-father's explanations for his inaction were belied by his own testimony and that of his witnesses. When asked why he had never sought custody of Jeffrey, for example, Respondent-father claimed he had no money for an attorney "[b]ecause at the time [he] didn't have a job." He later testified that he had been employed in his current full-time job for "[a]bout two years"—well before Petitioner filed to terminate his parental rights. Respondent-father also claimed he had been unable to contact Petitioner about Jeffrey because he did not know where she lived, and because she frequently changed her phone number. He then testified that his "cousin actually stays two doors down from [Petitioner]." Respondent-father's wife subsequently described making "numerous" phone calls to Petitioner despite her changing phone number, as...