{ "id": 8526464, "name": "IN RE: ERICA RENEE WILLIAMSON (A Minor Child) Born: February 3, 1981 ARTHUR CLARK and MELISSA CLARK, Petitioners v. CHARLES FRED WILLIAMSON, Respondent", "name_abbreviation": "Clark v. Williamson", "decision_date": "1988-11-01", "docket_number": "No. 8826DC160", "first_page": "668", "last_page": "685", "citations": [ { "type": "official", "cite": "91 N.C. App. 668" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "326 S.E. 2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "72 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527397 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/72/0657-01" ] }, { "cite": "341 S.E. 2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": -1 }, { "cite": "316 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704065, 4701641, 4702228, 4700665, 4699804 ], "year": 1986, "opinion_index": -1, "case_paths": [ "/nc/316/0194-03", "/nc/316/0194-05", "/nc/316/0194-04", "/nc/316/0194-01", "/nc/316/0194-02" ] }, { "cite": "334 S.E. 2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": -1 }, { "cite": "77 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520425 ], "year": 1985, "opinion_index": -1, "case_paths": [ "/nc-app/77/0053-01" ] }, { "cite": "312 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": -1 }, { "cite": "67 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525988 ], "year": 1984, "opinion_index": -1, "case_paths": [ "/nc-app/67/0184-01" ] }, { "cite": "360 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "320 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730978 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/320/0669-01" ] }, { "cite": "344 S.E. 2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 12168337 ], "year": 1987, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0285-01" ] }, { "cite": "269 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561139 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0068-01" ] }, { "cite": "348 S.E. 2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733357, 4737710, 4739538, 4737908, 4734073 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0284-04", "/nc/318/0284-02", "/nc/318/0284-05", "/nc/318/0284-03", "/nc/318/0284-01" ] }, { "cite": "344 S.E. 2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "81 N.C. 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App.", "case_ids": [ 8358098 ], "year": 1987, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0189-01" ] }, { "cite": "347 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736775, 4740168, 4739944, 4736235, 4733980 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0283-02", "/nc/318/0283-05", "/nc/318/0283-04", "/nc/318/0283-01", "/nc/318/0283-03" ] }, { "cite": "344 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "38" }, { "page": "38" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. 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Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "459 U.S. 1139", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6528068, 6528196, 6528138, 6528010, 6528267 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/459/1139-02", "/us/459/1139-04", "/us/459/1139-03", "/us/459/1139-01", "/us/459/1139-05" ] }, { "cite": "293 S.E. 2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "306 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571007 ], "year": 1982, "pin_cites": [ { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0394-01" ] }, { "cite": "248 S.E. 2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "877" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555856 ], "year": 1978, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0724-01" ] }, { "cite": "296 S.E. 2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526361 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0322-01" ] }, { "cite": "316 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "252-53" }, { "page": "252" }, { "page": "252" }, { "page": "252" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "112-13" }, { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "319 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "311 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683935 ], "year": 1984, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0708-01" ] } ], "analysis": { "cardinality": 1193, "char_count": 40573, "ocr_confidence": 0.822, "pagerank": { "raw": 8.821514575145999e-07, "percentile": 0.9779946630093106 }, "sha256": "1c1daba19c852658a35764f69332fa3ea48c06d121d126411594f2597747ec41", "simhash": "1:8e3bf5064e63a857", "word_count": 6573 }, "last_updated": "2023-07-14T21:33:36.579827+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and COZORT concur." ], "parties": [ "IN RE: ERICA RENEE WILLIAMSON (A Minor Child) Born: February 3, 1981 ARTHUR CLARK and MELISSA CLARK, Petitioners v. CHARLES FRED WILLIAMSON, Respondent" ], "opinions": [ { "text": "PARKER, Judge.\nIn this appeal, respondent contends, in essence, that the trial court\u2019s conclusions of law \u2014 (i) that grounds exist to terminate respondent\u2019s parental rights as to Erica pursuant to G.S. 7A-289.32 and (ii) that it is in Erica\u2019s best interests that respondent\u2019s parental rights be terminated pursuant to G.S. 7A-289.31 \u2014 are not supported by appropriate findings of fact or sufficient evidence. Respondent also contends that the trial court erred in limiting the amount of attorney\u2019s fees awarded for defense of the declaratory judgment action as to the paternity of Erica to $35.00 per hour. Petitioners argue in their cross-appeal that the trial court erred in awarding respondent attorney\u2019s fees in the paternity action. We shall address the issues involving the termination of parental rights first.\nI.\nOrder Terminating Parental Rights\nIn his brief, respondent first argues that he has not shown \u201ca settled purpose to relinquish all parental claims\u201d as to Erica in that while he has been incarcerated he has \u201crepeatedly inquired about and requested visitation with his child.\u201d In his argument, respondent contends that the trial court erred in making the following conclusions of law:\n4. In all matters for termination of parental rights, the burden of proof is always with the petitioner(s) to prove by clear and convincing evidence the existence of one or more circumstances which warrant termination (under G.S. 7A-289.32). In this case, the petitioners have proved the existence of \u201cneglect\u201d and \u201cabandonment,\u201d which are statutory grounds for termination, G.S. 7A-289.32(2) and (4) respectively. The Court reaches the conclusions of law that these two grounds have been established by clear and convincing evidence.\n5. Respondent murdered the mother (who was the caretaker and custodian of the child) and this placed the child in the status of a \u201cneglected\u201d child who required custody and care of Social Services. By the murder and following the murder, the father has acted in such a way as to evince a lack of parental concern for the child. He has totally withheld his love, affection, support and supervision from his child, in such a way as to show a settled purpose to forego all parental duties and relinquish all parental claims. Respondent has twice consented to adoption of his child by his sister, the last time being as recent as November or December 1986. In short, respondent has totally abandoned his child. His profession of \u201clove\u201d in letters to his sister and in this case in court does not dissipate the abandonment.\nIn a proceeding to terminate parental rights pursuant to G.S. Chap. 7A, Article 24B, the trial judge must find facts based on the evidence and make conclusions of law which resolve the ultimate issue whether neglect authorizing termination of parental rights is present at that time. In re Ballard, 311 N.C. 708, 716, 319 S.E. 2d 227, 232 (1984). Petitioners who seek termination have the burden of showing by clear, cogent, and convincing evidence that such neglect exists at the time of the termination proceeding. G.S. 7A-289.30(e). Id.\nIn the instant case, the trial court found as fact that for at least a year prior to the murder of Erica\u2019s mother and respondent\u2019s subsequent incarceration, \u201crespondent had little if any contact with his minor child, who was residing with her mother\u201d; that respondent has twice signed his consent for Erica\u2019s adoption by his sister and her husband; that since his incarceration, respondent has not seen Erica; that although respondent has known since September 1982 that Erica was in petitioners\u2019 custody, he has made no attempt to communicate with petitioners or to send any support or maintenance to petitioners for the benefit of the child; that although respondent has had limited resources while in prison, he has had sufficient funds available for corresponding with Erica or for acknowledging her birthday or other special occasions; and that since September 1982, respondent has not had any verbal or written communication with Erica.\nRespondent does not attack the evidentiary bases for the court\u2019s findings, but rather respondent points to evidence in the record that would support different findings and would tend to lead to the conclusion that there are no grounds for termination of his parental rights. After careful review of the record in this case, we conclude that the trial court\u2019s findings of fact are supported by clear, cogent, and convincing evidence. When the court\u2019s findings of neglect are supported by ample, competent evidence, they are binding on appeal, even though there may be evidence to the contrary. In re Montgomery, 311 N.C. 101, 112-13, 316 S.E. 2d 246, 252-53 (1984). Moreover, while the evidence also shows that respondent frequently inquired about Erica and stated that he loved Erica in his correspondence with his sister, this evidence does not necessarily negate the court\u2019s finding that the child has been neglected. \u201c[T]he fact that the parent loves or is concerned about his child will not necessarily prevent the court from making a determination that the child is neglected.\u201d Id. at 109, 316 S.E. 2d at 252.\nIn his second argument, respondent contends that the trial court erred in concluding that respondent \u201cacted in such a way as to evince a lack of parental concern for the child.\u201d Respondent argues, first, that \u201clack of parental concern\u201d is not a proper ground for termination of parental rights under G.S. 7A-289.32 and, second, that the only finding of fact to support this conclusion is finding number twenty-three, that respondent \u201ccould have expressed his parental love and concern in more meaningful ways,\u201d a finding that is not supported by the evidence. We disagree with these contentions.\nGeneral Statute 7A-289.32 enumerates the alternative grounds for termination of parental rights. Among these grounds are that the parent abused or neglected the child, G.S. 7A-289.32(2), and that the parent willfully abandoned the child for at least six months immediately prior to the filing of the petition for termination, G.S. 7A-289.32(8). The term \u201cneglected juvenile\u201d is defined, in part, in G.S. 7A-517(21) as \u201c[a] juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has been abandoned . . . An individual\u2019s \u201clack of parental concern for his child\u201d is simply an alternate way of stating that the individual has failed to exercise proper care, supervision, and discipline as to that child. Furthermore, abandonment is the willful neglect or refusal to provide parental care and support including the withholding of love and affection as well as financial support and maintenance. See In re APA, 59 N.C. App. 322, 296 S.E. 2d 811 (1982). Respondent\u2019s objections to the court\u2019s language in conclusion of law number five are totally without merit.\nAs to the second portion of respondent\u2019s argument, we first note that respondent\u2019s brief takes out of context and misquotes a portion of finding of fact number twenty-three. Finding of fact number twenty-three, in its entirety, states the following:\n23. From his employment in the prison system the respondent earns presently one dollar per day and has been earning that sum for several months. Prior to this he made 40 cents per day for a period of eight to ten months and thereafter 70 cents per day. These sums have been paid to him weekly and have been used by him to purchase hygiene items such as toothpaste with the balance of his funds having been used to purchase drinks and snacks. The respondent also occasionally received sums of money from his sister. While recognizing that his funds have been limited, it is also clear that his expenses have been limited and there were in fact sufficient funds available for the respondent to use for the purpose of corresponding with his daughter or in acknowledging her birthdays or other special events. While such efforts by the respondent may have been difficult under the facts of this case they certainly would not have been impossible and would have resulted in more meaningful evidence of the respondent\u2019s interest in his daughter than his verbal assertions on the witness stand and his indirect inquiries and statements about his daughter made to his sister, Mrs. Britt in the numerous correspondences and conversations with Mrs. Britt.\nThere is sufficient clear, cogent, and convincing evidence in the record to support this finding. Respondent, however, contends that he could not correspond with Erica or acknowledge her birthday or other special occasions because he did not have her address and because he had no \u201caccess to shopping facilities to make purchases suitable for a young child.\u201d Respondent further argues that any such attempt to correspond with Erica would have been futile because petitioners would oppose and prevent any such contact. These arguments are meritless.\nThere is ample evidence in the record that respondent knew of Erica\u2019s presence at petitioners\u2019 home as early as September 1982 and that he knew of the continuing contact of his attorney and his sister\u2019s attorney with petitioners and petitioners\u2019 attorney in the ongoing custody proceedings involving Erica. Moreover, the record contains more than eighty pages of respondent\u2019s letters to his sister and her family, providing abundant evidence that respondent could and did write letters and send cards to other family members. Finally, respondent clearly had the means to acknowledge Erica\u2019s birthday with a purchase \u201csuitable for a young child,\u201d for, as the trial court points out in finding of fact number twenty-five, \u201cRespondent sent one birthday card to the child but that was in the summer of 1983 and it was not to the child but to his sister.\u201d The court further notes, \u201cThe child\u2019s birthdate is in February.\u201d\nFinally, the trial court\u2019s finding of fact number twenty-three is not the only finding to support the conclusion that respondent \u201cacted in such a way as to evince a lack of parental concern for the child.\u201d As noted above, the court found, among other findings, that respondent had little if any contact with Erica in the year preceding the murder of Erica\u2019s mother; that since the murder, respondent has been incarcerated; that respondent has twice given his consent for the child\u2019s adoption by his sister and her husband; that respondent has known that Erica was in petitioners\u2019 custody since September 1982; and that since September 1982, respondent has made no effort to contact petitioners, to send support for Erica to petitioners, or to establish any verbal or written communication with the child. These findings support the trial court\u2019s conclusion that respondent \u201cacted in such a way as to evince a lack of parental concern for the child\u201d and are sufficient to constitute neglect pursuant to G.S. 7A-289.32(2) and G.S. 7A-517(21).\nIn his next argument, respondent contends that the trial court was precluded from adjudicating that Erica was \u201cneglected\u201d pursuant to G.S. 7A-289.32(2) and 7A-517(21) because of the earlier district court orders which contained the conclusion of law that Erica was a \u201cdependent\u201d child as defined by G.S. 7A-517U3). Respondent argues that by its order finding statutory neglect, the court \u201coverruled sub silentio a final binding order of another district court.\u201d This contention is without merit.\nGeneral Statute 7A-517G3) defines a \u201cdependent juvenile\u201d as \u201c[a] juvenile in need of assistance or placement because he has no parent, guardian or custodian responsible for his care or supervision or whose parent, guardian, or custodian is unable to provide for his care or supervision.\u201d General Statute 7A-517(21) defines a \u201cneglected juvenile\u201d as:\nA juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has 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 law.\nThese definitions are not mutually exclusive. A child may be both \u201cdependent\u201d and \u201cneglected\u201d within the definitions of G.S. 7A-517(13) and (21). Moreover, the issue adjudicated in determining that Erica was a dependent child was the need for a custodial arrangement following her mother\u2019s death. Here the issue is whether Erica has been neglected or abandoned by respondent.\nRespondent next argues that the trial court erred in basing its conclusion that Erica was a neglected juvenile solely on the fact that respondent murdered Erica\u2019s mother and caused Erica to require the custody and care of community social services. Respondent contends that \u201cthe trial court decided this case on the basis of its own belief that killing the custodial parent creates an immutable condition of neglect which an incarcerated parent can never remedy.\u201d This argument is without merit.\nThis Court has stated that while the fact that a parent has committed a crime which might result in incarceration is insufficient standing alone to show willful abandonment of the parent\u2019s child, the commission of a crime may be relevant or even determinative as to whether a parent has forfeited his parental rights under G.S. 7A-289.32(2). In re Maynor, 38 N.C. App. 724, 727, 248 S.E. 2d 875, 877 (1978). In the case before us, the trial court\u2019s findings and conclusions demonstrate that the court did not rely \u201csolely\u201d on the circumstance of respondent\u2019s murder of Erica\u2019s mother and his subsequent incarceration in making its determination that Erica was \u201cneglected\u201d pursuant to G.S. 7A-289.32(2). Although the court did consider the fact that respondent murdered Erica\u2019s caretaker and custodian causing Erica to require the custody and care of community social services as one factor in its determination, the court also considered respondent\u2019s actions and circumstances since the murder in drawing the conclusion that respondent neglected and abandoned his child.\nIn his next assignment of error, respondent contends that the trial court erred in basing termination of parental rights on G.S. 7A-289.32(4) for failure to pay a reasonable portion of the child\u2019s care costs.\nGeneral Statute 7A-289.32 provides eight alternative bases for a court\u2019s termination of a party\u2019s parental rights. One of the alternative bases is a finding that the parent has abused or neglected the child. G.S. 7A-289.32(2). Another of the enumerated alternative grounds for termination of parental rights is G.S. 7A-289.32(4) which states the following:\nThe child has been placed in the custody of a county Department of Social Services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition, has willfully failed for such period to pay a reasonable portion of the cost of care for the child although physically and financially able to do so.\nIn its order, the trial court made the conclusion of law that \u201cthe petitioners have proved the existence of \u2018neglect\u2019 and \u2018abandonment,\u2019 which are statutory grounds for termination, G.S. 7A-289.32(2) and (4) respectively.\u201d As respondent correctly points out and as petitioners concede, G.S. 7A-289.32(4) is inapplicable to the situation in the case now before us. This reference to G.S. 7A-289.32(4) is immaterial, however, since a valid finding on one of the eight grounds enumerated in G.S. 7A-289.32 is sufficient to support an order terminating parental rights. See In re Moore, 306 N.C. 394, 404, 293 S.E. 2d 127, 132 (1982), appeal dismissed, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed. 2d 987 (1983); In re Stewart Children, 82 N.C. App. 651, 655, 347 S.E. 2d 495, 498 (1986). As we discussed earlier, the trial court\u2019s conclusion that Erica was neglected pursuant to G.S. 7A-289.32(2) was supported by findings based on clear, cogent, and convincing evidence; therefore we need not address respondent\u2019s challenge to the court\u2019s conclusion relating to G.S. 7A-289.32(4).\nIn his sixth argument, respondent contends that the court erred in including in its order terminating his parental rights statements to the effect that petitioners plan to adopt Erica. Respondent contends this finding is not supported by clear, cogent, and convincing evidence. Respondent\u2019s argument is without merit.\nWe first note that proof of a petitioner\u2019s plan to adopt the child is not a prerequisite for the institution of a proceeding to terminate the parental rights of the child\u2019s parents. General Statute 7A-289.24 lists the parties who are entitled to petition for termination of parental rights. Among the possible petitioners listed is any person who has been judicially appointed as the guardian of the child, G.S. 7A-289.24(2); any person with whom the child has been living continuously for two years or more, G.S. 7A-289.24(5); and any person who has filed a petition for adoption after there has been a determination of abuse or neglect, G.S. 7A-289.24(7). As petitioners in this case fit the first two of the criteria listed above, it is unnecessary that they fit the last. Furthermore, there is sufficient evidence in the record to support the court\u2019s finding that petitioners intend to adopt Erica. Plaintiffs allege in their verified complaint that they intend to adopt Erica as soon as possible. Furthermore, respondent testified that petitioners\u2019 attorney contacted him prior to the commencement of this proceeding seeking his consent for petitioners\u2019 adoption of Erica. In addition, the custodian of Erica\u2019s two stepsisters, the current wife of Erica\u2019s mother\u2019s first husband, testified at trial that petitioners are trying to adopt Erica. Erica\u2019s kindergarten teacher also testified that she was aware of petitioners\u2019 intent to adopt Erica. This evidence is sufficient to support a finding by the trial court that petitioners planned to adopt Erica if possible.\nRespondent\u2019s final argument involving the order terminating parental rights involves the dispositional phase of the proceeding in the trial court. Specifically, respondent contends that the trial court erred in failing to state the standard of proof employed in making its dispositional determination that the best interests of Erica require termination of respondent\u2019s parental rights. This argument is without merit.\nGeneral Statute 7A-289.31(a) provides the following:\nShould 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.\nOur Courts have recognized that a termination of parental rights proceeding involves a two-step process: an adjudication, governed by G.S. 7A-289.30 and a disposition, governed by G.S. 7A-289.31. Montgomery, 311 N.C. at 110, 316 S.E. 2d at 252; In re White, 81 N.C. App. 82, 85, 344 S.E. 2d 36, 38, disc. rev. denied, 318 N.C. 283, 347 S.E. 2d 470 (1986). At the adjudication stage, the petitioner must show the existence of one of the grounds for termination listed in G.S. 7A-289.32 by clear, cogent, and convincing evidence, G.S. 7A-289.30(e); at the disposition stage, the court\u2019s decision whether to terminate parental rights is discretionary. Montgomery, 311 N.C. at 110, 316 S.E. 2d at 252; White, 81 N.C. App. at 85, 344 S.E. 2d at 38.\nThis Court has held that G.S. 7A-635 and -637 require that the trial judge recite the standard of proof applied in a proceeding based on a petition alleging abuse, neglect, dependence, or undisciplined behavior. In re Wheeler, 87 N.C. App. 189, 193, 360 S.E. 2d 458, 460-61 (1987). In the case before us, the trial judge recited the appropriate standard for the finding of neglect pursuant to G.S. 7A-289.30(e) in his conclusions of law and concluded that petitioners had established grounds for neglect pursuant to G.S. 7A-289.32(2) \u201cby clear and convincing evidence.\u201d The court thereafter made the following conclusion of law:\nThe Court specifically finds and concludes that the best interests and welfare of the child would be promoted by termination of the father\u2019s rights so that the proposed adoption by Mr. and Mrs. Arthur Clark can proceed.\nWe hold that the court below met the requirement of G.S. 7A-635 and -637 by stating the standard used at the adjudication stage of the proceeding; the trial judge was not also required to recite that his decision at the disposition stage of the proceeding was discretionary.\nFor the foregoing reasons, we find that respondent\u2019s contentions regarding the order terminating his parental rights respecting Erica are without merit, and we affirm the order.\nII.\nOrder Directing Payment of Attorney\u2019s Fees\nAt the time petitioners filed their petition for termination of parental rights, they also filed a claim for a declaratory judgment that respondent is not the biological father of Erica. This latter claim was based on two allegations: that respondent and the child\u2019s mother were married only a few weeks prior to the birth of the child and that the child bears no physical resemblance to respondent. In response, respondent filed two motions to dismiss the action, a motion for summary judgment on the paternity claim, and a motion for award of attorney\u2019s fees. On 24 April 1987, approximately six months after the paternity claim was filed, petitioners filed notice of a voluntary dismissal without prejudice of the declaratory judgment action regarding paternity pursuant to G.S. 1A-1, Rule 41(a)(1). After hearing argument on the matter, the trial judge ordered petitioners to pay $1,272.25, or $35.00 per hour for 36.35 hours, to respondent\u2019s attorney for the defense against petitioners\u2019 paternity claim. Petitioners contend that the trial court erred in entering this order; respondent contends that the trial court erred in awarding fees at the \u201cstate-paid rate\u201d of $35.00 per hour rather than at the market rate acknowledged by the court in its order to be $95.00 per hour. We shall address petitioners\u2019 cross-appeal argument first.\nPetitioners first contend that the court could not award attorney\u2019s fees pursuant to G.S. 1A-1, Rule 11, recently amended to permit such awards, because the Rule 11 amendment was not effective until after the filing of the claim for declaratory relief on which the award was based. With this contention we agree.\nThe amendment of Rule 11 of the North Carolina Rules of Civil Procedure was expressly made effective 1 January 1987 and is \u201capplicable to pleadings, motions, or papers filed on or after that date.\u201d G.S. 1A-1, Rule 11 (effective date note). The claim seeking declaratory relief was filed 23 October 1986. While some of the time for which respondent\u2019s attorney was to be reimbursed elapsed after the effective date of the amendment, the order directing payment of counsel fees was based on the claim that was filed before the effective date. Therefore, the trial judge erred in citing Rule 11 of the North Carolina Rules of Civil Procedure as a basis for his order.\nThis error does not, however, mandate that the court\u2019s order be vacated. The trial court also cited G.S. 6-21.5 as authority for its order. Petitioners contend that the award of attorney\u2019s fees pursuant to G.S. 6-21.5 was also error. We disagree.\nGeneral Statute 6-21.5 states the following:\nIn any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney\u2019s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading. The filing of a general denial or the granting of any preliminary motion, such as a motion for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12, a motion to dismiss pursuant to G.S. 1A-1, Rule 12(b)(6), a motion for a directed verdict pursuant to G.S. 1A-1, Rule 50, or a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, is not in itself a sufficient reason for the court to award attorney\u2019s fees, but may be evidence to support the court\u2019s decision to make such an award. A party who advances a claim or defense supported by a good faith argument for an extension, modification, or reversal of law may not be required under this section to pay attorney\u2019s fees. The court shall make findings of fact and conclusions of law to support its award of attorney\u2019s fees under this section.\nThis Court has defined a \u201cjusticiable issue\u201d as an issue that is \u201creal and present as opposed to imagined or fanciful.\u201d Sprouse v. North River Ins. Co., 81 N.C. App. 311, 326, 344 S.E. 2d 555, 565, disc. rev. denied, 318 N.C. 284, 348 S.E. 2d 344 (1986). \u201c \u2018Complete absence of a justiciable issue\u2019 suggests that it must conclusively appear that such issues are absent even giving the losing party\u2019s pleadings the indulgent treatment which they receive on motions for summary judgment or to dismiss.\u201d Id. (citing Vassey v. Burch, 301 N.C. 68, 269 S.E. 2d 137 (1980)).\nIn support of their allegation that respondent is not the biological father of Erica, petitioners offer the following facts:\n1. That Williamson married Erica\u2019s mother only a few weeks before Erica\u2019s birth;\n2. That Erica bore no physical resemblance to Williamson;\n3. That Williamson had severe alcoholism problems preceding Erica\u2019s birth;\n4. That Erica\u2019s mother had a reputation for promiscuity;\n5. That Williamson\u2019s sister testified at Williamson\u2019s sentencing hearing (on his plea of guilty to murdering Erica\u2019s mother) that she did not know whose baby Erica was;\n6. That Williamson kept in close contact with his sister;\n7. That Williamson refused to consent to a blood grouping test; and\n8. That the Clarks voluntarily dismissed the claim for strategic reasons, and not because the Clarks believed it was unfounded. (In fact, the Clarks strategy, \u201cto get on with the alternative . . . claim,\u201d was successful, since the District Court later entered Judgment revoking Williamson\u2019s parental rights.)\nOf these \u201cfacts,\u201d only the first and second allegation appeared in petitioners\u2019 complaint. Respondent\u2019s alcoholism, his contact with his sister, and petitioners\u2019 purported reasons for dismissing the claim bear little or no relevance as to whether petitioners\u2019 claim presented a \u201cjusticiable issue of law or fact.\u201d The assertion that Erica\u2019s mother had a reputation for promiscuity and respondent\u2019s sister\u2019s statement at the sentencing hearing are supported by nothing in the record except the bare assertions of petitioners\u2019 attorney.\nThe record shows and the trial court found as fact that throughout the four years of litigation preceding the filing of the paternity action, including a complaint filed in federal court at the same time as the paternity action was filed in the State court, petitioners consistently identified respondent as Erica\u2019s father. As to respondent\u2019s \u201crefusal to consent to a blood grouping test,\u201d the trial court noted in its findings that originally the court had issued an order setting out the procedure for obtaining blood tests for respondent and for Erica. A short time thereafter, respondent moved the court for relief from this order claiming the tests were not warranted because of prior court findings identifying respondent as Erica\u2019s father and because prior to her death, Erica\u2019s mother filed a verified complaint seeking child support for Erica from respondent. Petitioners took a voluntary dismissal of their paternity claim before the court could rule on this motion.\nIn its conclusions of law, the trial court states, \u201cIn the instant case, there was a complete absence of a justiciable issue of law or fact concerning paternity, and there was no good faith basis for asserting and continuing to pursue this claim.\u201d The sufficiency of a pleading under the \u201cjusticiable issue of law or fact\u201d standard of G.S. 6-21.5 presents a question of law for the court. Bryant v. Short, 84 N.C. App. 285, 288, 352 S.E. 2d 245, 247, disc. rev. denied, 319 N.C. 458, 356 S.E. 2d 2 (1987); Sprouse v. North River Ins. Co., 81 N.C. App. at 326, 344 S.E. 2d at 565. After a careful review of the complaint and the record, we must agree with the trial court, that there was a total absence of a justiciable issue as to whether respondent is the biological father of Erica. The order awarding respondent attorney\u2019s fees for his defense against the paternity action was correct under G.S. 6-21.5.\nFinally, respondent contends that the trial court erred in ascertaining the proper rate of pay for the attorney\u2019s fee award. Specifically, respondent excepts to the following conclusion of law made by the trial court:\nThe reasonable fair market value of Ms. Brooks\u2019 [respondent\u2019s attorney\u2019s] services in this case is no less than $95 per hour. However, because Ms. Brooks was appointed rather than retained, this Court cannot award a fee in excess of the established $35 per hour rate for court-appointed counsel.\nGeneral Statute 7A-451(a)(15) entitles an indigent parent to the services of counsel in an action brought pursuant to Article 24B of Chapter 7A to terminate his parental rights. Accordingly, counsel was appointed for respondent in this case. Fees for counsel so appointed are governed by G.S. 7A-458, which states the following:\nIn districts which do not have a public defender, the court shall fix the fee to which an attorney who represents an indigent person is entitled. In doing so, the court shall allow a fee based on the factors normally considered in fixing attorneys\u2019 fees, such as the nature of the case, the time, effort and responsibility involved, and the fee usually charged in similar cases. Fees shall be fixed by the district court judge for actions or proceedings finally determined in the district court and by the superior court judge for actions or proceedings originating in, heard on appeal in, or appealed from the superior court. Even if the trial, appeal, hearing or other proceeding is never held, preparation therefor is nevertheless compensable.\nGeneral Statute 6-21.5 authorizes the court to award \u201ca reasonable attorney\u2019s fee.\u201d The trial court was not limited to the amount fixed by the district court in its payment of counsel appointed to indigent parties. General Statute 6-21.5 is \u201cbased on deterring frivolous and bad faith lawsuits by the use of attorney\u2019s fees.\u201d Daniels v. Montgomery Mut. Ins. Co., 81 N.C. App. 600, 603, 344 S.E. 2d 847, 849, modified on other grounds, 320 N.C. 669, 360 S.E. 2d 772 (1986). The purpose of this statute is not served by treating those who bring frivolous suits against indigent parties differently from those who bring frivolous suits against parties who can afford to retain their own counsel. Therefore, the trial court\u2019s limitation of the attorney\u2019s fee award to the court-appointed rate of $35.00 per hour was error.\nFor the foregoing reasons, the trial court\u2019s order terminating the parental rights of respondent in and to the child Erica Renee Williamson is affirmed; the order directing payment of attorney\u2019s fees is remanded to the trial court for further findings and conclusions consistent with this opinion.\nAffirmed in part; remanded in part for further findings and conclusions.\nJudges Johnson and COZORT concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "George Daly for petitioner-appellees and cross-appellants.", "Joyce M. Brooks and John 0. Pollard for respondent-appellant and cross-appellee.", "Donald S. Gillespie, Jr., as Guardian ad Litem for Erica Renee Williamson, a minor child, appellee." ], "corrections": "", "head_matter": "IN RE: ERICA RENEE WILLIAMSON (A Minor Child) Born: February 3, 1981 ARTHUR CLARK and MELISSA CLARK, Petitioners v. CHARLES FRED WILLIAMSON, Respondent\nNo. 8826DC160\n(Filed 1 November 1988)\n1. Parent and Child \u00a7 1.6\u2014 termination of parental rights \u2014 finding of neglect not negated by evidence\nEvidence in a proceeding to terminate parental rights that respondent, in correspondence with his sister, inquired about the child and stated that he loved her did not necessarily negate the court\u2019s finding that the child had been neglected.\n2. Parent and Child 8 1.6\u2014 termination of parental rights \u2014 conclusion of lack of parental concern\nThe trial court in a proceeding to terminate parental rights did not err in concluding that respondent \u201cacted in such a way as to evince a lack of parental concern for the child\u201d since such language was simply an alternate way of stating that respondent has failed to exercise proper care, supervision and discipline of the child within the meaning of N.C.G.S. \u00a7 7A-517(21).\n3. Parent and Child 8 1.6\u2014 termination of parental rights \u2014 neglect of child \u2014 sufficiency of findings\nThe trial court\u2019s conclusion in a proceeding to terminate parental rights that respondent \u201cacted in such a way as to evince a lack of parental concern for the child\u201d and thus neglected the child within the meaning of N.C.G.S. \u00a7\u00a7 7A-289.32(2) and 7A-517(21) was supported by findings that respondent had little if any contact with the child in the year preceding his murder of the child\u2019s mother; respondent has been incarcerated since the murder; respondent has twice given his consent for the child\u2019s adoption by his sister and her husband; and respondent has known for some five years that the child was in petitioners\u2019 custody but has made no effort to contact petitioners, to send support for the child to petitioners, or to establish any verbal or written communication with the child.\n4. Parent and Child 8 1.5\u2014 termination of parental rights \u2014 prior finding that child \u201cdependent\u201d \u2014 finding of neglect not precluded\nThe trial court in a proceeding to terminate parental rights was not precluded from adjudicating that the child was \u201cneglected\u201d pursuant to N.C.G.S. \u00a7\u00a7 7A-289.32(2) and 7A-517(21) because of earlier district court orders concluding that the child was \u201cdependent\u201d as defined in N.C.G.S. \u00a7 7A-517G3).\n5. Parent and Child 8 1.6\u2014 termination of parental rights \u2014 neglected child \u2014 murder of child\u2019s mother and incarceration not sole factor\nThe trial court did not improperly rely solely on respondent\u2019s murder of his child\u2019s mother and his subsequent incarceration in determining that the child was \u201cneglected\u201d where the record shows that the court also considered respondent\u2019s actions and other circumstances since the murder in concluding that respondent neglected and abandoned his child.\n6. Parent and Child 8 1.6\u2014 termination of parental rights \u2014 neglect\u2014finding of failure to pay costs immaterial\nWhere the trial court\u2019s order terminating parental rights was supported by a valid determination that the child was neglected, the court\u2019s reference to the statute relating to the failure to pay a reasonable portion of the child\u2019s care costs, N.C.G.S. \u00a7 7A-289.32(4), was immaterial.\n7. Parent and Child 8 1.6\u2014 termination of parental rights \u2014 plan to adopt finding unnecessary\nThe trial court\u2019s finding in an order terminating parental rights that petitioners plan to adopt the child was unnecessary because petitioners met other criteria for instituting a proceeding to terminate respondent\u2019s parental rights; furthermore, there was sufficient evidence in the record to support such finding.\n8. Parent, and Child \u00a7 1.6\u2014 termination of parental rights \u2014 statement of standard of proof\nThe trial court complied with N.C.G.S. \u00a7\u00a7 7A-635 and 7A-637 in an order terminating parental rights by stating that neglect of the child had been shown by \u201cclear and convincing evidence,\u201d and the court was not also required to recite that its dispositional finding that the best interest of the child required termination of respondent\u2019s parental rights was discretionary.\n9. Attorneys at Law \u00a7 7.5; Rules of Civil Procedure \u00a7 11\u2014 attorney fees \u2014 Rule 11 amendment inapplicable\nThe trial court could not award attorney fees pursuant to N.C.G.S. \u00a7 1A-1, Rule 11 where the amendment allowing such an award was not effective until after the filing of the claim for declaratory relief on which the award was based.\n10. Attorneys at Law \u00a7 7.5\u2014 attorney fees \u2014 absence of justiciable issue\nThe trial court could properly award attorney fees to respondent under N.C.G.S. \u00a7 6-21.5 after petitioners voluntarily dismissed their claim for a declaratory judgment that respondent was not the biological father of a certain child where the claim was based on allegations that respondent and the child\u2019s mother were married only a few weeks prior to the birth of the child and that the child bears no physical resemblance to respondent, and where the record supported the trial court\u2019s finding that there was a complete absence of a justiciable issue of law or fact concerning respondent\u2019s paternity of the child.\n11. Attorneys at Law \u00a7 7.5\u2014 absence of justiciable issue \u2014 amount of attorney fees\nWhere counsel appointed to represent respondent in a proceeding to terminate his parental rights also represented him in a related frivolous action by petitioners for a declaratory judgment as to paternity, the trial court erred in limiting the amount of attorney fees awarded to respondent in the paternity action under N.C.G.S. \u00a7 6-21.5 to the court-appointed rate of $35.00 per hour.\nAPPEAL by respondent and by petitioners from Matus (T. Patrick, II), Judge. Orders entered 22 September 1987 in District Court, Mecklenburg County. Heard in the Court of Appeals 30 August 1988.\nThis is an appeal from an order terminating the parental rights of respondent as to his child Erica Renee Williamson (hereinafter Erica) and from an order for payment by petitioners of respondent\u2019s counsel fees in a related paternity action. The facts surrounding this appeal have been recited by this Court in a number of cases, including an appeal from Erica\u2019s initial custody decree, In re Williamson, 67 N.C. App. 184, 312 S.E. 2d 239 (1984); an appeal from an order modifying Erica\u2019s custody and guardianship, In re Williamson, 77 N.C. App. 53, 334 S.E. 2d 428 (1985), disc. rev. denied, 316 N.C. 194, 341 S.E. 2d 584 (1986); and an appeal from respondent\u2019s criminal conviction for the murder of Erica\u2019s mother, State v. Williamson, 72 N.C. App. 657, 326 S.E. 2d 37 (1985).\nThe facts relevant to this appeal may be briefly outlined as follows. Respondent and Erica\u2019s mother, Joan Brown Williamson, were married in January of 1981, approximately one month before Erica\u2019s birth. The couple lived together for a number of months, then separated. The record contains evidence that respondent had a history of alcohol and drug abuse, and during the period after his separation from Erica\u2019s mother, he participated in two treatment programs, one in North Carolina and one in Texas. During this time, respondent had little or no contact with Erica. In 1982, respondent returned to North Carolina and sought visitation rights with Erica. On 30 April 1982, immediately following a hearing to determine his visitation rights, respondent shot and killed Erica\u2019s mother near the Columbus County Courthouse. Respondent pleaded guilty to second degree murder and is currently serving an active sentence in the North Carolina Department of Correction.\nOn 30 April 1982, Erica was made a ward of the juvenile court, and in May 1982, when Erica was sixteen months old, she was adjudicated a dependent child and placed in the temporary custody of the Columbus County Department of Social Services. Several placements were considered for Erica, including one with respondent\u2019s sister and her husband, and one with the first cousin of Erica\u2019s mother and her husband, petitioners in the case now before us. Erica was ultimately placed with petitioners.\nOn 23 October 1986, petitioners commenced this action by filing a verified complaint seeking a declaratory judgment that respondent is not the biological father of Erica; alternatively, petitioners filed a petition seeking termination of respondent\u2019s parental rights as to Erica based on abuse, neglect, and abandonment. On 24 April 1987, petitioners took a voluntary dismissal of the declaratory judgment action. After trial without a jury on the remaining matter, the trial judge made findings of fact and conclusions of law and granted petitioners\u2019 petition for termination of respondent\u2019s parental rights as to Erica. To this order, respondent appeals. In a separate order, the trial judge ordered petitioners to pay counsel fees incurred by respondent in defending against the declaratory judgment action concerning Erica\u2019s paternity. To this order, both parties appeal.\nGeorge Daly for petitioner-appellees and cross-appellants.\nJoyce M. Brooks and John 0. Pollard for respondent-appellant and cross-appellee.\nDonald S. Gillespie, Jr., as Guardian ad Litem for Erica Renee Williamson, a minor child, appellee." }, "file_name": "0668-01", "first_page_order": 696, "last_page_order": 713 }