In Re MD

682 S.E.2d 780
CourtCourt of Appeals of North Carolina
DecidedSeptember 15, 2009
DocketCOA09-500
StatusPublished

This text of 682 S.E.2d 780 (In Re MD) 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 MD, 682 S.E.2d 780 (N.C. Ct. App. 2009).

Opinion

682 S.E.2d 780 (2009)

In the Matter of M.D., N.D.

No. COA09-500.

Court of Appeals of North Carolina.

September 15, 2009.

*781 Laura C. Brennan, PLLC, by Laura C. Brennan, Raleigh, for petitioner-appellee mother.

Ryan McKaig, Raleigh, for respondent-appellant father.

ERVIN, Judge.

Jose D., Respondent-Father, appeals from orders terminating his parental rights in M.D. ("Michelle")[1] and N.D. ("Natalya").[2] After careful consideration of the record and briefs in light of the applicable law, we affirm the trial court's orders.

Shannon W. (Petitioner-Mother) and Respondent-Father are the parents of Michelle and Natalya. Petitioner-Mother and Respondent-Father were married on 8 March 1996; separated in August 2000; and divorced on 9 August 2002. Michelle and Natalya, who are twins, were the only children born of the marriage. In February 2003, Petitioner-Mother married Timothy J.W. Petitioner-Mother and Timothy J.W. have one child. At all times after separating from Respondent-Father in August 2000, Respondent-Mother *782 has had physical custody of Michelle and Natalya. On 2 September 2005, Judge Paul Gessner entered an order in the Wake County District Court awarding legal and physical custody of Michelle and Natalya to Petitioner-Mother and providing that Respondent-Father was "entitled to only supervised visitation with the minor children."

On 11 April 2008, Petitioner-Mother filed a petition seeking the entry of an order terminating Respondent-Father's parental rights in Michelle and Natalya. Petitioner-Mother sought this relief on two different grounds. First, Respondent-Mother alleged that Respondent-Father had willfully abandoned both children for at least six consecutive months immediately preceding the filing of the petition, so that Respondent-Father's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B-1111(a)(7). More specifically, Petitioner-Mother alleged that, since legal custody of Michelle and Natalya had been awarded to her on 2 September 2005, Respondent-Father had "taken no other steps or made no other acts [sic] which would demonstrate any filial affection for the children, except to contact [Petitioner-Mother] after he was arrested for non[-]payment of child support in March 2007." Secondly, Petitioner-Mother alleged that Respondent-Father had failed to provide child support for over one year prior to the filing of the petition, so that Respondent-Father's parental rights were subject to termination pursuant to N.C. Gen.Stat. § 7B-1111(a)(4). More specifically, Petitioner-Mother alleged that Respondent-Father was subject to an order requiring him "to provide child support for the minor children in the amount of $350.00 a month, which includes his arrears payment[,]" and that he had failed to comply with this court-ordered child support obligation.

Petitioner-Mother's termination petition was heard before the trial court on 14 November 2008 and 9 January 2009. The trial court entered separate orders terminating Respondent-Father's parental rights in both Michelle and Natalya on 3 February 2009, nunc pro tunc to 9 January 2009. In its order with respect to Respondent-Father's parental rights in Natalya, the trial court concluded that his parental rights were subject to termination for failure to pay child support pursuant to N.C. Gen.Stat. § 7B-1111(a)(4). Moreover, the trial court found that Respondent-Father's parental rights in both Michelle and Natalya were subject to termination for abandonment pursuant to N.C. Gen.Stat. § 7B1111(a)(7).[3] Finally, the trial court concluded that it was in the best interests of both Michelle and Natalya that Respondent-Father's parental rights be terminated. Following the entry of the trial court's termination orders, Respondent-Father noted an appeal to this Court.

Respondent-Father's first challenge to the trial court's termination orders is that the trial court failed to correctly identify the standard of proof used in making its findings of fact, effectively precluding this Court from determining that those findings were made on the basis of the "clear, cogent and convincing evidence" standard required by N.C. Gen.Stat. § 7B-1109(f). After carefully reviewing the entire record, we conclude that the trial court did not commit prejudicial error as alleged by Respondent-Father.

According to well-recognized provisions of North Carolina law, proceedings to consider petitions seeking the termination of parental rights are conducted in two phases: (1) the adjudication phase and (2) the dispositional phase. In re Baker, 158 N.C.App. 491, 581 S.E.2d 144 (2003). In the adjudication stage, the petitioner must prove by clear, cogent, and convincing evidence the existence of one or more of the grounds for termination. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984), later proceeding on other grounds, 77 N.C.App. 709, 336 S.E.2d 136 (1985); see also N.C. Gen.Stat. § 7B-1109(f) (stating that "all findings of fact shall be based on clear, cogent, and convincing evidence"). The trial court is required to "affirmatively state in its order the standard of proof utilized in [a] termination proceeding." In re Church, 136 *783 N.C.App. 654, 657, 525 S.E.2d 478, 480 (2000).

In the written orders entered in these proceedings, the trial court stated that Petitioner-Mother had proven the allegations set out in the petitions seeking the termination of Respondent-Father's parental rights by "clear and cogent evidence[.]" Respondent-Father argues that this standard is substantively different from the "clear, cogent, and convincing evidence" required by N.C. Gen. Stat. § 7B-1109(f). Assuming arguendo that there is a substantive difference between "clear and cogent" and "clear, cogent, and convincing," we conclude that the trial court's use of "clear and cogent" did not constitute prejudicial error in this case given that the record when viewed in its entirety clearly reveals that the trial court applied the proper evidentiary standard and given that Respondent-Father has not challenged any of the trial court's factual findings relating to the grounds for termination set out in N.C. Gen. Stat. § 7B-1111(a)(7) as lacking in adequate evidentiary support.

At the conclusion of the termination hearing, the trial court stated in open court that Petitioner-Mother had "provided. clear, cogent, and convincing" evidence that Respondent-Father's parental rights in Natalya were subject to termination pursuant to N.C. Gen.Stat. § 7B-1111(a)(4) and that Respondent-Father's parental rights in Michelle and Natalya were subject to termination pursuant to N.C. Gen.Stat. § 7B-1111(a)(7). Although the trial court should have stated in its written termination order that it utilized the standard of proof specified in N.C. Gen. Stat. § 7B-1109(f), the fact that the trial court orally indicated that it employed the appropriate standard and the fact that the language actually used by the trial court is reasonably close to the wording that the trial court should have employed satisfies us that the trial court did, in fact, make its factual findings on the basis of the correct legal standard. See In re Church, 136 N.C.App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Nesbitt
555 S.E.2d 659 (Court of Appeals of North Carolina, 2001)
In Re PM
610 S.E.2d 403 (Court of Appeals of North Carolina, 2005)
Matter of Huff
547 S.E.2d 9 (Supreme Court of North Carolina, 2001)
Taylor v. Taylor
387 S.E.2d 230 (Court of Appeals of North Carolina, 1990)
In Re Humphrey
577 S.E.2d 421 (Court of Appeals of North Carolina, 2003)
In Re Church
525 S.E.2d 478 (Court of Appeals of North Carolina, 2000)
Matter of Montgomery
336 S.E.2d 136 (Court of Appeals of North Carolina, 1985)
In Re Baker
581 S.E.2d 144 (Court of Appeals of North Carolina, 2003)
Pratt v. Bishop
126 S.E.2d 597 (Supreme Court of North Carolina, 1962)
Matter of Montgomery
316 S.E.2d 246 (Supreme Court of North Carolina, 1984)
In Re Huff
536 S.E.2d 838 (Court of Appeals of North Carolina, 2000)
Spencer Secretarial School, Inc. v. Hohl
180 Misc. 494 (Appellate Terms of the Supreme Court of New York, 1943)
In re D.J.D.
615 S.E.2d 26 (Court of Appeals of North Carolina, 2005)
In re J.B.
616 S.E.2d 385 (Court of Appeals of North Carolina, 2005)
In re P.M.
169 N.C. App. 423 (Court of Appeals of North Carolina, 2005)
In re M.D., N.D.
682 S.E.2d 780 (Court of Appeals of North Carolina, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
682 S.E.2d 780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-md-ncctapp-2009.