In Re Ajmp

695 S.E.2d 156, 205 N.C. App. 144, 2010 N.C. App. LEXIS 1139
CourtCourt of Appeals of North Carolina
DecidedJuly 6, 2010
DocketCOA09-1609
StatusPublished
Cited by3 cases

This text of 695 S.E.2d 156 (In Re Ajmp) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Ajmp, 695 S.E.2d 156, 205 N.C. App. 144, 2010 N.C. App. LEXIS 1139 (N.C. Ct. App. 2010).

Opinion

695 S.E.2d 156 (2010)

In the Matter of A.J.M.P.

No. COA09-1609.

Court of Appeals of North Carolina.

July 6, 2010.

Charlene Edwards, for petitioner-mother appellee.

Richard Croutharmel, for respondent-father appellant.

HUNTER, JR., ROBERT N., Judge.

Respondent-father appeals from an order terminating his parental rights to A.J.M.P. *157 ("Abraham").[1] On appeal, respondent-father challenges the trial court's conclusion that grounds existed to terminate his parental rights based on the following contentions: (1) Abraham does not meet the definition of a "dependent" child under N.C. Gen.Stat. § 7B-101(a)(9) (2009); (2) respondent-father has tried to maintain contact with his child despite respondent-father's incarceration and petitioner-mother's refusal to allow him to communicate with Abraham; (3) respondent-father has not failed to provide child support pursuant to N.C. Gen.Stat. § 7B-1111 (a)(4) (2009) because petitioner-mother did not prove that there was an existing child support order by clear, cogent, and convincing evidence; (4) petitioner-mother failed to prove that respondent-father neglected Abraham. In addition, respondent-father asserts that the trial court abused its discretion by continuing to the disposition stage and determining that termination of his parental rights was in the best interest of Abraham.

For the reasons stated herein, we conclude that the trial court's findings of fact are supported by clear, cogent, and convincing evidence, and that the findings of fact support the trial court's conclusion that respondent-father neglected Abraham. We further conclude that the trial court did not abuse its discretion in concluding that termination of respondent-father's parental rights would be in the best interest of Abraham. Accordingly, we affirm the decision of the trial court.

I. FACTUAL BACKGROUND

Abraham was born to petitioner-mother and respondent-father on 14 March 2001. Petitioner and respondent married on 28 March 2002; however, the couple separated on 4 April 2003, and were later divorced on 2 August 2004. On 15 April 2004, petitioner-mother initiated a child custody action pursuant to Chapter 50 of the North Carolina General Statutes. The district court awarded custody of Abraham to petitioner-mother, and respondent-father was awarded visitation.

In 2005, respondent-father was deployed to Afghanistan while working as a civilian contractor with the C.I.A. There, he was arrested by federal authorities on charges involving abuse of a prisoner of war which resulted in the death of the prisoner. Respondent-father was incarcerated in the Wake County Jail as a federal pre-trial detainee from June 2005 until approximately March 2006 when he was granted pre-trial release. Respondent-father did not see Abraham and had limited telephone contact with the child while he was incarcerated.

After respondent-father was granted pre-trial release, petitioner-mother secured an ex parte order suspending respondent-father's visitation until the matter could be heard by the trial court. On 27 March 2006, the trial court modified the parties' previous visitation arrangement, limiting respondent-father's visitation with Abraham to two-hour increments. Respondent-father visited with Abraham under the terms of the agreement once on 4 April 2006. Further visitation by respondent-father was eliminated because he was arrested and placed in the Harnett County Jail for assaulting his girlfriend at the time. At the time of his arrest, approximately $8,000 was found in respondent-father's vehicle. As a result of this arrest, respondent-father's pre-trial release was revoked, and on 22 May 2006, the trial court entered an order ceasing respondent-father's visitation with Abraham. Respondent-father was subsequently convicted and received an active sentence for the federal charge involving the death of the prisoner in Afghanistan. His projected release date is July 2012. Abraham was five years old at the time of respondent-father's incarceration and he will be eleven years old upon respondent-father's release.

While respondent-father has been in prison, petitioner-mother and her husband, M.L., have been caring for Abraham. Petitioner-mother and M.L. are both actively involved with Abraham's school and his extracurricular activities, including: baseball, Boy Scouts, and the Boy Scout Derby. Abraham also attends Calvary Baptist Church with petitioner-mother, M.L., and M.L.'s fourteen-year-old daughter. M.L. has stated that he desires to adopt Abraham. Respondent-father *158 has not seen Abraham since his last visit on 4 April 2006.

On December 2006, petitioner-mother filed a termination of parental rights petition alleging four grounds for termination, including: (1) N.C. Gen.Stat. § 7B-1111(a)(1) (neglect); (2) N.C. Gen.Stat. § 7B-1111(a)(3) (failure to pay support); (3) N.C. Gen.Stat. § 7B-1111(a)(6) (dependency); and (4) N.C. Gen.Stat. § 7B-1111(a)(7) (abandonment). In assessing petitioner-mother's termination of parental rights, the trial court appointed a guardian ad litem ("GAL") for Abraham.

The GAL visited Abraham on 9 May 2007 and 25 January 2008. During the visits the GAL spoke with, among others, petitioner-mother, M.L.'s daughter, and Roberta Keithley ("Keithley")—respondent-father's friend. The GAL recommended that respondent-father's parental rights be terminated so that M.L. could adopt Abraham. The GAL asserts the following facts as the basis for the GAL's recommendation: (1) the respondent-father has not seen the child for five years and has not provided any meaningful support, financial or otherwise; (2) respondent-father is incarcerated for a crime of violence that he chose to commit; and (3) adoption by M.L. would give Abraham the stability he needs. The GAL submitted a report on the best interests of Abraham at the termination of parental rights hearing on 25 August 2009. In addition to the GAL's findings, the report included a letter from Keithley to the GAL and a letter from respondent-father dated 27 October 2008.

Petitioner-mother filed her proper termination of parental rights petition in February 2008. Respondent-father filed a pro se answer on 21 July 2008 denying petitioner-mother's material allegations. In November 2008, respondent-father wrote a letter to the clerk of court and attached four motions: (1) motion for appointment of counsel; (2) motion for extension of time; (3) motion to participate in the termination of parental rights hearing via telephone; and (4) motion that the petitioner-mother be held in contempt for denying him access to Abraham. On 26 November 2008, the trial court appointed counsel to represent respondent-father at the termination of parental rights hearing. The termination hearing was held in special session on 25 August 2009.

At the beginning of the hearing, respondent-father made four motions to dismiss on various grounds. All four motions were denied. Petitioner-mother presented all of her evidence, which detailed the facts presented above and included testimony from respondent-father. At the close of petitioner-mother's evidence, respondent-father made a motion to dismiss for insufficiency of the evidence. The court denied that motion.

To refute petitioner-mother's evidence, respondent-father also testified in his own defense; however, his testimony was solely limited to rebuttal of the petitioner-mother's testimony. At the close of all evidence, respondent-father made another motion to dismiss which was denied by the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
695 S.E.2d 156, 205 N.C. App. 144, 2010 N.C. App. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ajmp-ncctapp-2010.