In re McMahon

389 S.E.2d 632, 98 N.C. App. 92, 1990 N.C. App. LEXIS 306
CourtCourt of Appeals of North Carolina
DecidedApril 3, 1990
DocketNo. 8918DC804
StatusPublished
Cited by3 cases

This text of 389 S.E.2d 632 (In re McMahon) 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 McMahon, 389 S.E.2d 632, 98 N.C. App. 92, 1990 N.C. App. LEXIS 306 (N.C. Ct. App. 1990).

Opinions

LEWIS, Judge.

Petitioner alleged and proved in the trial court that respondent’s parental rights should be terminated on the grounds of willful abandonment and nonpayment of support. Respondent appeals argu[94]*94ing that the findings and conclusions are not supported by the evidence.

G.S. 7A-289.30(e) sets forth the appropriate standard of proof in termination of parental rights proceedings: “All findings of fact shall be based on clear, cogent, and convincing evidence. . . .” This intermediate standard is greater than the preponderance of the evidence standard required in most civil cases, but not as stringent as the requirement of proof beyond a reasonable doubt required in criminal cases. In re Montgomery, 311 N.C. 101, 109-110, 316 S.E.2d 246, 252 (1984) (citing, Santosky v. Kramer, 455 U.S. 745, 71 L.Ed. 2d 599 (1982)). Since this case involves a higher evidentiary standard, we must review the evidence in order to determine whether the findings are supported by clear, cogent and convincing evidence and that the findings' support the conclusions of law. Id. at 111, 316 S.E.2d 253.

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. Upon that finding, the court must as a second inquiry determine whether the termination of parental rights is in the best interest of the child. G.S. 7A-289.31(a) and (b). We first address whether the trial court’s findings support a conclusion that substantial grounds exist for the termination of respondent’s parental rights.

I. Substantial Grounds

G.S. 7A-289.32 lists the grounds upon which parental rights may be terminated; of these, numbers (5) and (8) are pertinent:

Grounds for terminating parental rights. The court may terminate the parental rights upon a finding of one or moré of the following:
(5) One parent has been awarded custody of the child by judicial decree, or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition willfully failed without justification to pay for the care, support, and education of the child, as required by said decree or custody agreement. . . .
[95]*95(8) The parent has willfully abandoned the child for at least six consecutive months immediately preceding the filing of the petition. . . .

G.S. 7A-289.32.

The respondent first argues that the trial court erred in its finding of fact number five which states:

(5) That on October 17, 1988 nunc pro tunc to April 5, 1988, the Honorable Robert E. Bencini, Jr. entered an order at the request of the guardian Ad Litem and the consent of the petitioner setting forth a meeting between the petitioner, respondent and minor child and a six month visitation schedule between the minor child and respondent. Said order also provided for the respondent to pay child support at the rate of $40.00 per week for the use and benefit of the minor child. Although the respondent visited with the minor child under the supervision of the guardian Ad Litem, the respondent paid no child support as ordered during this time. There was some confusion in the order in that the order referred to Ms. McMahon as “Ms. Lewis” but there was no follow through on anyone’s part as to the wage withholding being sent to the hospital and the respondent made no attempts to make child support payments as directed and made no attempt to correct the error.

After carefully reviewing the trial transcript, we find that this finding is supported by the evidence. Respondent himself never made any child support payments. Although the respondent’s second wife testified that she made some phone calls about the withholding of support payments out of her paycheck, there is no evidence documenting these calls, and respondent never attempted to make payments directly to the guardian ad litem, or the Clerk of Court or inquired as to what to do.

The respondent further asserts that the trial court erred in its finding of fact number seven which states that

substantial grounds exists for the termination of parental rights in this case ... in that the respondent has willfully failed and refused to pay for the care, support and education of the minor child for more than one year next preceding the filing of the petition in this case.

[96]*96We find ample evidence to support the court’s findings. Evidence at trial showed that the respondent was employed during the one year preceding the filing of the petition as a construction worker at the Adams’ Farm complex and then for J.H. Allen Construction on a project. Furthermore, the respondent testified that during this period he was contributing to the support of his stepchild and his new wife. The respondent made no showing that he made any support payments for his own child during this time period. His only offering on this point was that he was suffering from Post Traumatic Stress Disorder (PTSD) which kept him from maintaining steady employment. However, respondent did admit that even while he was suffering from this disorder, he did maintain various jobs during the relevant time period and he still contributed to the support of his new family. We find that there was sufficient evidence to support the trial court’s findings, and they are binding upon us on appeal, even though there may be some evidence contra. Hice v. Hi-Mil, Inc., 301 N.C. 647, 655, 273 S.E.2d 268, 273 (1981).

Because we find that these findings are supported by clear, cogent and convincing evidence, the trial court did not err in concluding that substantial grounds exist for the termination of parental rights.

We now address the exceptions assigned by respondent to the findings of the trial court that termination of respondent’s parental rights was in the best interest of the child.

II. Best Interest

G.S. 7A-289.31(a), which governs the disposition stage of a termination proceeding, provides:

(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.

G.S. 71-239.31(a). This statute gives the trial court discretion not to terminate rights where it concludes that termination is not in the best interest of the child. Here the trial court concluded that it was in the best interest of the child to terminate respondent’s rights. It based this conclusion on the respondent’s above discussed [97]*97failure to support the child as required in his court order and on respondent’s

willful lack of contact with the minor child since the separation of the petitioner and respondent . . .

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Related

Matter of Jurga
472 S.E.2d 223 (Court of Appeals of North Carolina, 1996)
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449 S.E.2d 911 (Court of Appeals of North Carolina, 1994)

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Bluebook (online)
389 S.E.2d 632, 98 N.C. App. 92, 1990 N.C. App. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcmahon-ncctapp-1990.