In re Yocum

• Decision Date: 03 June 2003
• Docket Number: No. COA02-582.,COA02-582.
• Parties: In the Matter of Nicole Hope YOCUM.
• Court: North Carolina Court of Appeals

580 S.E.2d 399

158 NC App. 198

In the Matter of Nicole Hope YOCUM.

No. COA02-582.

Court of Appeals of North Carolina.

June 3, 2003.

Sofie W. Hosford, Wilmington, for respondent-appellant.

Charles W. Porter, Charlotte, for petitioner-appellee.

TIMMONS-GOODSON, Judge.

Adam Jermaine Austin ("respondent") appeals the order terminating his parental rights as to his daughter, Nicole Hope Yocum ("the minor child"). For the reasons stated herein, we affirm the order of termination by the trial court.

The facts pertinent to the instant appeal are as follows: Respondent and Brenda Lee Yocum ("petitioner") are the natural parents of the minor child. Respondent and petitioner have never married. Prior to the birth of the minor child, respondent and petitioner sought pre-adoption counseling; however, respondent rejected the idea of adoption. On 13 February 1999, the minor child was born in Rowan County.

On 5 June 2001, petitioner filed a petition to terminate the parental rights of respondent. The petition alleged that respondent failed to establish paternity, failed to support the minor child, abandoned the minor child and failed to communicate with the minor child. The matter came before the trial court on 24 September 2001. Respondent appeared and was represented by counsel at the termination hearing. Based on the evidence presented at the hearing, the trial court made the following pertinent findings of fact:

7. Respondent Father, Adam Austin, is 28 years old, incarcerated in North Carolina Department of Corrections for multiple consecutive sentences of Felony Breaking and Entering and has a projected release date of December 25, 2006. He has previously been incarcerated in North Carolina Department of Corrections in 1995 and released in January, 1997 without benefit of early release after having served a full term for Felony Indecent Liberties with a child and multiple probation violations.

....

9. The father has been employed:

a. while incarcerated, from May, 2001 to present on a road crew and earned 70 cents per day, 5 days per week; all moneys were used for his personal expenses. None of these moneys were applied in direct cash toward support of the child nor was any of it used as a resource to make any telephone, U.S. Mail or any other contact with the child.

b. while incarcerated, February, 2001 to May, 2001 in the prison kitchen and earned 40 cents per day, 5 days per week; all moneys were used for his personal expenses. None of these moneys were applied in direct cash toward support of the child nor was any of it used as a resource to make any telephone, U.S. Mail or any other contact with the child.

c. for two months duration prior to incarceration on February 1, 2000 at Draftex Corporation. Prior to Draftex, he was employed at Superior Lawn Service. Prior to Superior Lawn Service, he was employed at Applebee's restaurant for approximately one year. At all three of the above jobs, he earned a paycheck every two weeks. The exact amount is unknown but he was able to meet his ongoing expenses of rent, food and clothing. None of these moneys were applied in direct cash toward support of the child nor was any of it used as a resource to make any telephone, U.S. Mail or any other contact with the child.

10. He was consistently employed from 02-13-99 to his incarceration on 02-01-00. While incarcerated he was employed in the kitchen from February, 2001 to May, 2001 and a road crew from May, 2001 to the present. All income received was used for his personal expenses. From birth, 02-13-99 to the time of trial, Respondent Father never paid any cash monetary support to the child or to the mother for the child's benefit.

11. A Voluntary Support Agreement for $189 per month was entered into by the Respondent Father on January 13, 2000 and no money has ever been paid pursuant to that Agreement.

12. The Respondent Father, accompanied by the paternal grandmother, visited the child and mother on at least 4 occasions but no more than 5 occasions at the Rockwell residence with maternal grandmother present. Each visit lasted no longer than 30 minutes. On the first two visits during the 1st month of the child's life, the Respondent Father brought clothing and blankets for the child. Respondent Father never brought any goods in kind after that.

13. The Respondent Father telephoned the mother and maternal grandmother to make arrangements for additional visits.

The father acknowledged that after setting up the additional visits, he did not show up for them because of transportation conflicts.

14. The paternal grandmother telephoned the mother and maternal grandmother prior to the respondent's incarceration to set up her own visits with the child and suggested Wal-Mart or K-Mart as a potential location. No agreement was reached for those visits.

15. Respondent Father acknowledged that he failed to communicate with the child by acknowledging that he never mailed any cards, letters nor gifts to the child on her birthday, Christmas, other special occasion or at any time since birth to the time of trial, a period of 2 years and 7 months, nor did he communicate in any other way with the child since birth.

16. Respondent Father never gave any presents for the child through the Angel Program, a charitable program that provides inmates the opportunity to send Christmas Presents to their children, nor any other Charitable program even though the Angel Program was available to him.

17. The mother has signed a consent for adoption, and has consistently desired to place the child for adoption because she feels the child needs both a mother and father. The mother acknowledges she cannot raise the child by herself.

18. Alternatives to adoption have been explored by the mother by placing the child with her brother in Texas for several months.

19. The mother has received Government Aid in the form of Food Stamps and Medicaid to assist her financially with the child from birth to the present.

20. In the last 2 months before trial, the Paternal Grandmother has left notes at the mother's Salisbury address for the purpose of establishing visitation for herself. Respondent father has placed 2 collect phone calls to the mother.

Based on the above-stated findings, the trial court entered the following conclusions of law:

4. Respondent Father has willfully and intentionally evinced a settled purpose to forego all parental duties and has relinquished all parental claims to his child.

5. Respondent father has willfully neglected and refused to perform the natural and legal obligations of parental care and support. He has withheld his presence, his love, his care, the opportunity to display filial affection and has willfully neglected to lend any support or maintenance for the child.

6. Grounds exist to terminate the parental rights of the respondent father in that he has abandoned this child pursuant to NCGS 7B-1111(a)7.

7. The child does not receive the proper care, supervision nor discipline from the Respondent father.

8. The Respondent Father has not provided necessary medical care or remedial care.

9. Grounds exist to terminate the parental rights of the respondent father in that he has neglected the child pursuant to NCGS 7B-1111(a)1.

10. It is in the best interests of the child for the Respondent Father's parental rights to be terminated as the mother has consistently felt that this child needed both a mother and father to raise the child, has acknowledged that she cannot raise the child herself and has consented to adoption.

The trial court therefore terminated respondent's parental rights to the minor child. Respondent appeals.

Respondent presents four assignments of error on appeal, arguing that (1) there was not clear, cogent and convincing evidence that respondent neglected the minor child; (2) there was not clear, cogent and convincing evidence that respondent abandoned the minor child; (3) the trial court omitted a finding of fact that petitioner prevented respondent from having contact with the minor child; and (4) the trial court abused its discretion by concluding that it was in the best interest of the minor child to terminate respondent's parental rights. In his first assignment of error, respondent contends that there was not clear, cogent and convincing evidence that he neglected the minor child, and that the trial court therefore erred in otherwise finding. We disagree.

A proceeding for termination of parental rights involves two stages: (1) the adjudicatory stage, governed by section 7B-1109, and (2) the dispositional stage, governed by section 7B-1110. See N.C. Gen. Stat. §§ 7B-1109, 7B-1110 (2001); In re Huff, 140 N.C.App. 288, 290, 536 S.E.2d 838, 840 (2000), disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001). At the adjudication stage, the petitioner must show by "clear, cogent and convincing evidence" the existence of one or more of the statutory grounds for termination of parental rights set fourth in section 7B-1111. N.C. Gen. Stat. § 7B-1109(e) and (f) (2001); In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). The clear, cogent and convincing evidentiary standard is a greater standard than the preponderance of the evidence standard, but not as rigorous as the proof beyond a reasonable doubt requirement. See In re Montgomery at 109-110, 316 S.E.2d at 252. The trial court may terminate the parental rights on the basis of several grounds, and "[a] finding of any one of the ... separately enumerated grounds is sufficient to support a termination." In re Pierce, 67 N.C.App. 257, 261, 312 S.E.2d 900, 903 (1984). In a termination proceeding, this Court "should affirm the trial court where the court's findings of fact are based upon clear, cogent and convincing evidence and the findings support the conclusions of law." In re Allred, 122 N.C.App. 561, 565, 471 S.E.2d 84, 86 (1996).

In the case at bar, the trial court found and concluded that respondent neglected the minor child as set forth in section...