Matter of Norris , 65 N.C. App. 269 ( 1983 )

310 S.E.2d 25 (1983) 65 N.C. App. 269

In the Matter of Christopher L. NORRIS, A minor Male Child.

No. 8211DC1230.

Court of Appeals of North Carolina.

December 6, 1983.

Bain & Capps by Elaine F. Capps, Lillington, for appellants-respondents.

Woodall, McCormick & Felmet, P.A. by Edward H. McCormick, Lillington, for petitioner-appellee.

VAUGHN, Chief Judge.

Pursuant to G.S. 7A-289.30(e), findings of fact by the Court in a hearing on termination of parental rights must be based on clear, cogent and convincing evidence. Respondents contend that the evidence presented did not meet this standard. We disagree.

We have already summarized at length the trial court findings and other facts from the Record. Upon review of the testimony at trial and the Record, we conclude that such findings were based on clear, cogent and convincing evidence. We deal separately with each of respondents' exceptions to the trial court findings.

First, respondents contend that the trial court's finding regarding a 1979 hearing wherein Christopher was adjudicated a neglected child was based on incompetent evidence since respondents were not represented by counsel during such hearing. This contention, though asserted in respondents' brief is not supported anywhere in the Record. Matters discussed in the brief outside the Record are not properly considered on appeal since the Record imports verity and binds the reviewing court. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976). In any event, regardless of whether respondents had counsel in 1979, their contention is meritless since the Court had before it plenary evidence and did not rely on the prior adjudication as grounds for terminating parental rights.

In respondents' next Assignment of Error, they contend that the Record is devoid of evidence to support the Court's finding of fact that on 21 January 1981, the homemaker observed Chris appearing nervous and afraid of his mother. A careful review of the Record reveals that the relevant date was not 21 January, but rather, 16 January, that Ms. Thomas described Chris as appearing "real nervous and he'd sit there and he'd clench his lips, he had a habit of clinching his lips, until he broke the skin on his lips."

It is well recognized that technical errors will not authorize a new trial unless it appears that the objecting party was prejudiced thereby, and the burden is on him to show prejudice. Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509 (1962). Respondents have not shown that they were prejudiced by the technical error regarding the date of such observation. We find no reasonable probability that the results of the trial would have been favorable to respondents had such error not occurred. See Mayberry v. Coach Lines, 260 N.C. 126, 131 S.E.2d 671 (1963).

Respondents next challenge the Court's findings of fact in that such findings excluded other relevant evidence. Specifically, respondents point out that Mrs. Norris had neither a driver's license nor a telephone to help arrange visits with her son; that visitation increased following the filing of the petition; and that in 1982, Mr. Norris' income was lower. Pursuant to G.S. 7A-289.30(a), the trial court, in the instant case, acted as both judge and jury. Our scope of review, when the Court plays such a dual role, is to determine whether there was competent evidence to support its findings of fact and whether its conclusions of law were proper in light of such facts. Hensgen v. Hensgen, 53 N.C.App. 331, 280 S.E.2d 766 (1981); Blanton v. Blanton, 40 N.C.App. 221, 252 S.E.2d 530 (1979). We have already found that the Court's findings of fact were supported by clear, cogent and convincing evidence. The findings of fact by the trial court in a nonjury trial have the force and effect of a jury verdict and are conclusive on appeal when supported by any competent evidence, even if the evidence could sustain contrary findings. Hensgen v. Hensgen, supra; see Taylor v. Jackson Training School, 5 N.C.App. 188, 167 S.E.2d 787 (1969).

Respondents next challenge the trial court's finding of fact that Chris was highly adoptable. Respondents urge us to adopt the reasoning from the dissenting opinion in In re Moore, 306 N.C. 394, 406, 293 S.E.2d 127, 134 (Carlton, J. dissenting), pet. denied, 306 N.C. 565 (1982), appeal dismissed, ___ U.S. ___, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983), wherein Justice Carlton argued that the county should have the burden of proving adoptability before the Court can terminate parental rights. It suffices to say that such a finding is not required in order to terminate parental rights. See G.S. 7A-289.32.

The trial court concluded, as a matter of law, that respondents had neglected Chris pursuant to G.S. 7A-289(32)(2). Respondents now contend that the trial court had before it insufficient evidence to support this conclusion. Respondents' contention is without merit.

The standard for neglect in termination proceedings is found in G.S. 7A-517(21). Pursuant to such statute, a neglected juvenile is:

[a] juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian or caretaker; who had been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of the law.

We need not reiterate the evidence adduced at trial showing that Chris did not receive proper care, supervision or discipline from his natural parents and that the Norris' home environment was injurious to his welfare. There was plenary, competent evidence to support the trial court's decision to terminate parental rights pursuant to G.S. 7A-289.32(2) and G.S. 7A-517(21).

Respondents contend that the standard of neglect to be applied under G.S. 7A-289.32(2) is unconstitutionally vague. Our courts have recently considered this question and found such standard to be constitutional, its meaning clear. In re Biggers, 50 N.C.App. 332, 274 S.E.2d 236, 22 A.L.R. 4th 766 (1981).

The trial court also found, as part of its legal conclusions, that Terry Norris had failed, pursuant to G.S. 7A-289.32(4), to pay a reasonable portion of the cost of care for his child. Respondents challenge this conclusion. The facts, as found by the trial court, showed that although under court order to pay $15 per week, Mr. Norris paid a total of only $60 in child support since Chris was placed in foster care on 1 April 1981 until the filing of the petition on 11 February 1982. Respondent contends that he was financially unable to meet his support obligation. In light of the evidence adduced at trial, we disagree.

A determination of a reasonable portion of child support is based on an interplay of the amount of support necessary to meet the reasonable needs of the child and the relative ability of the parents to provide that amount. In re Biggers, supra. The Court determined that $150 per month was necessary to support Chris' reasonable needs. Respondent was under Court order to pay 40% of this amount or $60 per month. Respondent's monthly income, meanwhile, ranged from a high of $486.86 in April, 1981 to a low of $81 in December, 1981. While it would be unreasonable to expect respondent to afford $60 for child support in December, it was not unreasonable for him to contribute this amount during the rest of the year when his monthly income was over $300. Respondent, furthermore, had signed a written agreement on 9 September 1981 to inform the county if he had any difficulty meeting his obligation; he never did so.

Pursuant to G.S. 7A-289.32(4), a Court may terminate parental rights if the parent has failed for a period of six months preceding the filing of the petition to pay a reasonable portion of the cost of care for the child. The petition in the instant case was filed in February, 1982. There was no evidence at trial as to respondent's income in January, 1982. His income during each of the months of August through November, however, was well over $300. Yet during this time, respondent made only one payment of $30 on 11 September, the date of a review hearing. In light of Chris' reasonable financial needs and respondent's ability to pay in at least four of the six months preceding the filing of the petition, we find no error in the trial court conclusion that respondent failed to pay a reasonable portion of child care costs.

For the reasons stated, the Order is affirmed.

Affirmed.

WELLS and JOHNSON, JJ., concur.