In re C.M.R

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-593 NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 IN THE MATTER OF: Union County Nos. 07 JT 206-08 C.M.R., L.C.R., and B.G.R. Appeal by respondent-father from order entered 27 February 2012 by Judge Hunt Gwyn in Union County District Court. Heard in the Court of Appeals 9 October 2012. Hucks & Regan, LLP, by Erin S. Hucks and Tracy Regan, for petitioner-appellee mother. Mercedes O. Chut for respondent-appellant father. THIGPEN, Judge. Respondent, the father of the juveniles, appeals from an order terminating his parental rights. After careful review, we affirm. Petitioner, the mother of the juveniles, and respondent were married in December of 1994 and separated 1 March 2001. Three children were born of the marriage: C.M.R., L.C.R., and -2B.G.R. On 16 September 2002, petitioner and respondent divorced and petitioner was granted custody of the juveniles. On 19 November termination of 2007, parental petitioner rights filed alleging a that petition for respondent had neglected the children under N.C. Gen. Stat. § 7B-1111(a)(1); had willfully failed without justification to pay for the care of the juveniles, as required by the voluntary support agreement and order under N.C. Gen. Stat. § 7B-1111(a)(4); and had abandoned the children under N.C. Gen. Stat. § 7B-1111(a)(7). On 28 October 2008, the trial court concluded that grounds existed to terminate respondent s parental rights based upon its determinations that respondent willfully failed without justification to pay for the care of his children, as required by the voluntary support agreement, and that it was in the best interests of the children to terminate his parental rights. Respondent appealed. After hearing the appeal, this Court vacated the trial court s order, in an unpublished opinion, due to concerns that respondent s right to due process was not properly observed. Specifically, this Court expressed reservations regarding respondent-father s capacity and the trial court s failure to appoint him a guardian ad litem. Accordingly, this Court -3remanded the matter with instructions that the trial court should address the following deficiencies in the record: 1) The results of any psychological evaluation of respondent and a determination of whether he is competent to assist his counsel in the TPR proceedings; 2) The level of respondent s mental illness, if any, and whether the illness was debilitating to the extent that respondent s ability to hold a job and pay child support was affected; 3) If respondent s mental illness prevented him from gainful employment, what effect, if any, does this have on the allegations of willful nonsupport and abandonment determinations; 4) Whether respondent had a guardian ad litem separate from his appointed attorney at all times; 5) Who served as respondent s attorney and guardian ad litem prior to the TPR proceeding, their dates of appointment, and if applicable, the date of withdrawal from respondent s case; and 6) If Ms. Austin was appointed as respondent s guardian ad litem, was there adequate time for her to assist respondent in preparing for the TPR hearing. In re C.M.R., (No. COA09-117) (2009). This Court further stated that, on remand, the trial court should reconsider this matter on the merits, to the extent necessary, and enter a new order addressing the issue of should be terminated. On expert remand, respondent s parental rights Id. respondent assistance, psychologist. whether namely, filed Dr. a motion Karen seeking Shelton, The trial court granted the request. funds a for licensed Respondent -4underwent a psychological evaluation on 10 January 2010. May 2010, the trial court determined that On 12 respondent was competent to assist his counsel in the proceedings[.] On 17 June 2010, in accordance with this Court s instructions to reconsider the matter on the merits, the trial court entered respondent s respondent disorder an order parental suffered which denying rights. from prevented obtaining the The mental him and petition trial court illness from and seeking following to terminate found a or through that delusional maintaining employment or with medical treatment. The trial court therefore concluded that grounds did not exist to terminate respondent s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(4), in that respondent s failure to pay for the care, support and education of the juveniles was not willful. On 10 August 2010, petitioner filed terminate respondent s parental rights. respondent: a new petition to Petitioner alleged that (1) had neglected the juveniles under N.C. Gen. Stat. § 7B-1111(a)(1); (2) was incapable of providing for the proper care and supervision of the juveniles due to his mental illness and probability delusional disorder, that incapability the and there would was a continue reasonable for the -5foreseeable future, under N.C. Gen. Stat. § 7B-1111(a)(6); and (3) had abandoned the juveniles under N.C. Gen. Stat. § 7B1111(a)(7). On 27 September 2010, respondent filed a motion to dismiss and motion for summary judgment in which he argued that petitioner should be barred by the doctrines of res judicata and collateral estoppel from bringing forth the petition because the same factual matters and issues had previously been adjudicated on its merits. The petitioner s new unadjudicated issues, motion petition facts was denied alleges and on the basis grounds based circumstances[.] On that on 27 February 2012, the trial court terminated respondent s parental rights after concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (7). Respondent appeals. Respondent first argues that trial court erred by failing to dismiss the second petition on the basis that it was barred by the doctrines of res judicata and collateral estoppel. disagree. This Court has stated: Under the doctrine of res judicata, a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them. Generally, in order that the judgment in a former action may be held to constitute an estoppel as res judicata in a subsequent action there must be identity of parties, of subject matter and of issues. We -6In re I.J., 186 N.C. App. 298, 300, 650 S.E.2d 671, 672 (2007) (citation and quotation marks omitted). A new petition, based on circumstances arising subsequent to the original hearing is considered a new action, and is not barred by the doctrine of res judicata. In re S.R.G., 200 N.C. App. 594, 599, 684 S.E.2d 902, 905 (2009), disc. review and cert. denied, 363 N.C. 804, 691 S.E.2d 19 operates to (2010). preclude The doctrine of collateral estoppel parties from retrying fully litigated issues that were decided in any prior determination and were necessary to the prior determination. App. 189, 194, 360 S.E.2d 458, 461 In re Wheeler, 87 N.C. (1987) (quoting King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973)). Here, petitioner alleged in both petitions that respondent abandoned the juveniles. Pursuant to N.C. Gen. Stat. § 7B- 1111(a)(7), parental rights may be terminated when a parent has willfully abandoned the juvenile for at least six consecutive months immediately motion[.] . . . (emphasis added). preceding N.C. the Gen. filing Stat. § of the petition 7B-1111(a)(7) or (2011) The first petition, however, alleged grounds arising from facts and circumstances occurring prior to the 19 November 2007 filing date, whereas the second petition concerned the period of time preceding the 10 August 2010 filing date. -7Thus, the two petitions concerned wholly different statutory time periods. Consequently, there was no common identity of issues two in the petitions. Accordingly, we conclude the doctrines of res judicata and collateral estoppel do not apply to bar petitioner s new petition to terminate respondent s parental rights. We next concluding parental consider that whether grounds rights. N.C. existed Gen. the trial to Stat. court terminate § 7B-1111 statutory grounds for terminating parental rights. erred by respondent s sets out the A finding of any one of the separately enumerated grounds is sufficient to support termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990). The standard of appellate review is whether the trial court s findings of fact are supported by clear, cogent, and convincing evidence and whether the findings of fact support the conclusions of law. In re D.J.D., 171 N.C. App. 230, 238, 615 S.E.2d 26, 32 (2005) (citing In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), disc. review denied, appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001)). The trial court s findings of fact are conclusive even when there is evidence supporting contrary findings. 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). In re Helms, -8In the case sub judice, the trial court concluded there were grounds to support termination rights due to abandonment. noted previously of respondent s parental N.C. Gen. Stat. § 7B-1111(a)(7). herein, the new petition to As terminate respondent-father s parental rights was filed on 10 August 2010. Thus, the relevant six month statutory period was from 10 February 2010 to 10 August 2010. This Court has defined abandonment as follows: [W]ilful neglect and refusal to perform the natural and legal obligations of parental care and support. . . . [I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child. In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)). In support of its conclusion that respondent abandoned the juveniles, the trial court found that: 33. Respondent-Father has a delusional disorder as was testified to by an expert, Dr. Karen Shelton. 34. Independent of that delusional disorder, the Respondent-Father has not been involved with the minor children since the year 2002. There have been no gifts, cards, birthday presents or even phone calls to the minor children for almost an entire decade. -935. At most, in the light most favorable the Respondent, there were two letters the minor children. One letter was sent the Petitioner-Mother s current address 2008 and was directed to her with copies the minor children. to to to in to 36. One letter independent of the letter addressed to [petitioner-mother] was address[ed] specifically to the minor children that are the subject of this action. 37. The Court finds specifically by clear, cogent and convincing evidence that the Respondent-Father s purported reason for having lack of contact with his own minor children by cards, gifts, or letters, was that, presumably, [petitioner-mother] would thwart his efforts. The Court finds this to be more of an afterthought and an excuse for his inability to maintain any relationship with his minor children. 38. The Respondent s mere supposition that the Petitioner would thwart his efforts is not nearly a sufficient reason to excuse the complete lack of contact with his own three children for an entire ten year period. 39. The crux of the matter is whether or not Respondent s delusional disorder was such that it would render him unfit or unable to have the contact with his own minor children that is contemplated in the definitions of neglect and abandonment in Chapter 7B. 40. The Court notes and finds as a fact that during the same period of time for which he claims an inability to have contact and relationships with his children, he has: a. Held seven different jobs; -10b. Purchased and automobiles, given away c. Obtained housing at no cost to himself at different points and obtained housing on his own at other points; d. Held [] associate and undergraduate degree[s]; and e. Successfully filed for visitation pro se in Guilford County and on his own choosing and election withdrew that request for visitation. 41. With the exception of the RespondentFather s lack of relationship and communication with his three minor children, he walks and carries himself quite ably, quite intelligently and quite articulately. That, whatever else his delusional disorder does to him; it does not render him unfit or unable to have the contact with his own minor children that, by any reading of the law or common sense, is required. Respondent findings of initially fact are contends deficient that because the they trial do not court s contain specific dates or address the relevant statutory time period. We note, however, that the statute requires that the juveniles be abandoned for at least six months prior to the motion or petition to 7B-1111(a)(7) terminate (emphasis parental added). rights. Here, N.C. Gen. the trial Stat. § court s findings make it abundantly clear that respondent s failure to -11contact the children or maintain a relationship both encompassed and immediately preceded the relevant statutory time period. Respondent additionally argues that the findings inaccurately distort the overwhelming evidence in this case. Respondent contends tremendous efforts children. that to the evidence maintain a demonstrates his relationship with his not juveniles We are not persuaded. Respondent admitted that he had seen the since 2002, and had not sent any cards or gifts to his children despite having known their address since 2007. Respondent also acknowledged that there was no custody order preventing him from seeing the juveniles. Respondent claimed he did not send any cards or gifts, or attempt to contact the juveniles, because he felt his efforts would be useless due petitioner would thwart his attempts. however, that contacting the maintaining a respondent extending for failed juveniles, relationship several years prior his belief that The record demonstrates, to providing during to the to make any attempt at or gifts, or statutory period and cards the statutory period. Consequently, there is no evidence that petitioner thwarted his attempts during this period, and respondent s belief petitioner would thwart his attempts was mere supposition. that -12We therefore conclude that the trial court s findings regarding respondent s failure to communicate with the juveniles or maintain a relationship are supported by the evidence, and support its conclusion that grounds existed to terminate his parental rights due to abandonment. Accordingly, we hold the trial court did not err in its conclusion that grounds existed to terminate respondent s parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). Respondent additionally argues that the trial court erred by concluding that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate his parental rights. However, because we conclude that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(7) to support the trial court s order, we need not address the remaining ground found by the trial court to support termination. at 233-34. Taylor, 97 N.C. App. at 64, 387 S.E.2d Accordingly, we affirm. AFFIRMED. Judges CALABRIA and BEASLEY concur. Report per Rule 30(e).

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