No. 07-822.North Carolina Court of Appeals.
Filed January 15, 2008.
Gaston County No. 06 JT 359.
Appeal by respondent from judgment entered on or about 30 April 2007, nunc pro tunc 14 March 2007, by Judge John Greenlee in Gaston County District Court. Heard in the Court of Appeals 13 November 2007.
Michael E. Casterline, for petitioner-appellee.
Charlotte Gail Blake, for respondent-appellant.
STROUD, Judge.
Respondent is the father of R.L.M., and he appeals from the trial court’s order terminating his parental rights on the grounds that he (1) willfully failed to pay child support for at least one year prior to the filing of the petition, and (2) willfully abandoned the minor child for at least six consecutive months prior to the filing of the petition. For the following reasons, we affirm the trial court’s order.
Petitioner, R.L.M.’s mother, and respondent are the biological parents of minor child R.L.M. The parties were living together as an unmarried couple when R.L.M. was born, but they later ended their relationship. Petitioner initiated an action for custody and child support on 12 September 2003. Respondent was ordered to pay child support for R.L.M. by a court order entered in April 2004. On 23 August 2005 an order was entered granting primary custody of the minor child to petitioner, with visitation rights and telephone access to respondent. Respondent had moved out of state to Illinois by that time, and the visitation schedule allowed respondent to visit with the child on certain holidays, provided respondent gave advance notice to petitioner. Respondent was given particular days and times during which he was allowed to telephone the minor child. Petitioner married Phillip Cates in January 2005, and petitioner and R.L.M. moved into a new residence with Mr. Cates in October 2005.
On 3 October 2006 “petitioner” filed a petition seeking to terminate respondent’s parental rights. Petitioner alleged respondent had not seen R.L.M. since December 2004, had not sent any gifts or cards to R.L.M. since that time, and had neither paid child support nor attempted to visit with R.L.M. A summons was issued to respondent upon filing of the petition, but no summons was issued to the juvenile. Respondent was served with the petition on 11 November 2006 and he was appointed an attorney on 4 December 2006. Respondent filed a pro se answer on 4 December 2006 denying the material allegations in the petition. On 20 December 2006, respondent’s counsel filed a motion to dismiss the petition based upon the grounds that (1) there was no service of process of the petition upon the juvenile as required by N.C. Gen. Stat. § 11-6(5); (2) no guardian ad litem was appointed for the juvenile pursuant to N.C. Gen. Stat. § 7B-1108; and (3) no hearing as required by N.C. Gen. Stat. § 7B-1108(b) was held. A guardian ad litem was appointed for the minor child on 20 December 2006. Also on 20 December 2006, a summons was issued to the juvenile’s guardian ad litem and she accepted service of the summons and petition. The trial court also held a pretrial hearing as required by N.C. Gen. Stat. § 7B-1108(b) on 20 December 2006 and entered an order on 21 December 2006 setting forth the issues for trial, which was scheduled for 2 January 2007. The hearing was then postponed, first until 2 February 2007 and then until 7 February 2007, for court scheduling reasons. On 6 February 2007, respondent’s attorney moved to continue the hearing to allow respondent time to arrange for transportation to North Carolina and for counsel to adequately prepare a defense. The trial court allowed the motion and the hearing was rescheduled to 14 March 2007.
Early on 14 March 2007 respondent left a message for his attorney that his car had broken down on the way to North Carolina, that he was getting the car fixed, and he would call back with his progress. At that time respondent asked his attorney to request a continuance from the court. Counsel requested a continuance at the start of the hearing and several times throughout the hearing as he received updates on respondent’s travel progress. The trial court heard from petitioner’s attorney and the guardian ad litem and denied the motion each time it was raised by respondent’s counsel. The hearing was held in respondent’s absence.
In his first argument, respondent contends the trial court erred in denying his motion to continue the hearing. Respondent argues his inability to attend the hearing was through no fault of his own and the denial of his motion prejudiced him because he was unable to present evidence contesting the allegations in the petition. We find respondent’s argument to be without merit.
The decision of a trial court to allow or deny a motion to continue is within its sound discretion and will not be overturned on appeal unless it is “`manifestly unsupported by reason.'” In re Safriet, 112 N.C. App. 747, 751, 436 S.E.2d 898, 901 (1993) (quoting Freeman v. Monroe, 92 N.C. App. 99, 101, 373 S.E.2d 443, 444 (1988)). “Continuances are generally disfavored, and the burden of showing sufficient grounds for continuation is placed on the party seeking the continuation.” In re J.B., 172 N.C. App. 1, 10, 616 S.E.2d 264, 270 (2005). Moreover, where a party’s own actions prevent adequate trial preparation, it is not improper for a trial court to deny a motion to continue. Id. (citation omitted).
Time limits in juvenile cases for hearings on termination of parental rights are governed by N.C. Gen. Stat. § 7B-1109. The statute provides:
The court may for good cause shown continue the hearing for up to 90 days from the date of the initial petition in order to receive additional evidence including any reports or assessments that the court has requested, to allow the parties to conduct expeditious discovery, or to receive any other information needed in the best interests of the juvenile. Continuances that extend beyond 90 days after the initial petition shall be granted only in extraordinary circumstances when necessary for the proper administration of justice, and the court shall issue a written order stating the grounds for granting the continuance.
N.C. Gen. Stat. § 7B-1109(d) (2005). Here, the 90-day time limit set by N.C. Gen. Stat. § 7B-1109(d) had already passed. The termination hearing had already been rescheduled several times, including once at respondent’s request. Respondent requested and received a continuance in February in order to arrange for transportation to North Carolina and to allow his attorney time to prepare a defense. Both of these reasons were cited again by respondent’s counsel the morning of the March 14 hearing. Respondent had over a month to confer with his attorney regarding the case and to resolve his transportation issues. His failure to do so does not constitute extraordinary circumstances such that the trial court was required to grant yet another continuance. We therefore do not find the trial court was manifestly unreasonable in denying respondent’s motion to continue the hearing. This assignment of error is overruled.
In his second and third arguments, respondent contends the trial court erred in finding by clear, cogent, and convincing evidence that two grounds exist to terminate respondent’s parental rights, and by determining that termination is in the best interest of R.L.M. We disagree with both contentions.
Proceedings to terminate parental rights are conducted in two parts: (1) the adjudication phase, governed by N.C. Gen. Stat. § 7B-1109, and (2) the disposition phase, governed by N.C. Gen. Stat. § 7B-1110 (2005). In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). Once a trial court has determined at the adjudication phase that at least one ground for termination exists, the case moves to the disposition phase where the trial court decides whether termination of parental rights is in the best interest of the child Id.; N.C. Gen. Stat. § 7B-1110(a). In making its decision, the trial court must consider:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.
N.C. Gen. Stat. § 7B-1110(a)(1)-(6) (2005). The trial court is not required to terminate parental rights, but has the discretion to do so. In re Tyson, 76 N.C. App. 411, 419, 333 S.E.2d 554, 559 (1985).
In reviewing an adjudication order, “this Court considers whether the trial court’s findings of fact are based on clear, cogent, and convincing evidence and whether those findings support the trial court’s conclusion that grounds for termination exist pursuant to N.C. Gen. Stat. § 7B-1111.”In re C.W., ___ N.C. App. ___, ___, 641 S.E.2d 725, 729
(2007). In reviewing a disposition order, this Court determines whether the trial court abused its discretion in determining that it was in the child’s best interests to terminate the respondent’s parental rights. Id.
In the case sub judice, one of the two grounds relied upon by the trial court to support termination of parental rights is that respondent willfully abandoned the minor child for at least six consecutive months prior to the filing of the petition pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). The determinative period in this case is from April 2006 to October 2006 when the petition was filed. Willfulness is “more than an intention to do a thing; there must also be purpose and deliberation.” In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) (citation omitted). The trial court made findings of fact with regard to this ground for termination, including that (i) respondent had not seen R.L.M. since well before April 2006; (ii) respondent had not had telephone contact since before March 2006; (iii) respondent had not sent any cards, letters, or gifts to R.L.M.; (iv) respondent knew how to contact R.L.M. but failed to do so; and (v) the minor child has no relationship with respondent and cannot recognize him.
Respondent challenges the trial court’s findings of fact and conclusion and argues that his conduct was not “willful.” He argues that it is not clear that he knew where petitioner and R.L.M. were living after October 2005, that he was prohibited from contacting R.L.M. by telephone by court order after March 2006, and that his residence in Illinois prevented him from having regular contact with R.L.M. Respondent’s argument that he was prohibited from telephone contact because of a court order is inapposite because the court order resulted from respondent’s own actions in violating a previous court order delineating the days and times respondent was allowed to call the child. The order precluding respondent from making phone calls did not prevent him from exercising his visitation rights or from contacting the minor child in other ways than by telephone. Evidence was presented that respondent knew the child’s address, but did not send any letters, cards, or gifts to the minor child. Respondent did not avail himself of these other opportunities for contact with R.L.M. We find that sufficient evidence was presented to support the trial court’s findings of fact, and that the findings are sufficient to support the trial court’s conclusion that respondent willfully abandoned his child in the six months prior to the filing of the termination petition.
Because we find sufficient evidence exists to support the findings of fact made to support the conclusion that respondent willfully abandoned his child, we need not address the remaining ground for termination, that respondent willfully failed to pay support as directed by an order of the trial court. In re Baker, 158 N.C. App. 491, 497, 581 S.E.2d 144, 148 (2003); N.C. Gen. Stat. § 7B-1110(a) (2005).
At the disposition phase, the trial court made several findings of fact as the basis for its conclusion that termination of respondent’s parental rights is in the best interest of the child, including: (i) the minor child was four years old at the time of the hearing; (ii) if respondent’s parental rights were terminated, that petitioner and Mr. Cates’ plan is for Mr. Cates to adopt R.L.M.; (iii) that termination of respondent’s parental rights would aid in the permanent plan of adoption; (iv) that no relationship or parental bond exists between respondent and the minor child; (v) that the minor child does not recognize respondent; (vi) that R.L.M. has a good and loving relationship with Mr. Cates and his extended family; and (vii) that R.L.M. is well cared for by petitioner and Mr. Cates. Based on these findings, the trial court determined that the best interest of the child would be served by terminating respondent’s parental rights.
We find that the foregoing findings of fact address each of the factors listed in N.C. Gen. Stat. § 7B-1110 and are supported by the evidence presented at the hearing. We also find the findings of fact fully support the trial court’s conclusion that termination of respondent’s parental rights is in the best interest of the child. The trial court therefore did not abuse its discretion in determining that termination is in the best interest of the child. Accordingly, the trial court’s decision to terminate respondent’s parental rights is affirmed.
Respondent’s other assignments of error have not been brought forward and argued in the brief. They are deemed abandoned. N.C. R. App. P. 28(a).
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).