In re L.M.M. ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 21A20
Filed 25 September 2020
IN THE MATTER OF: L.M.M.
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from order entered on
27 September 2019 by Judge David V. Byrd in District Court, Wilkes County. This
matter was calendared in the Supreme Court on 27 August 2020 but was determined
on the record and briefs without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, for
petitioner-appellee.
Robert W. Ewing for respondent-appellant.
DAVIS, Justice.
In this case, we consider whether the trial court erred by terminating the
parental rights of respondent-mother to her son “Larry.”1 Because we conclude that
the evidence and the trial court’s findings of fact support the conclusion that
respondent willfully abandoned Larry within the meaning of N.C.G.S. § 7B-
1111(a)(7), we affirm.
Factual and Procedural Background
1 A pseudonym is used throughout this opinion to protect the identity of the juvenile.
IN RE: L.M.M.
Opinion of the Court
Larry was born in November 2016 and spent the first year of his life in
respondent’s care and custody. Petitioner is respondent’s second cousin and a lifelong
resident of Wilkes County, North Carolina. Petitioner attended the same church as
respondent and saw respondent with Larry each week during services. Petitioner also
spent time with Larry at her grandmother’s house in Hays, North Carolina, when
respondent was living nearby.
Petitioner lost touch with respondent at some point in 2017. In November 2017,
petitioner contacted respondent on Facebook and learned that she had moved to
Asheville with Larry. Respondent told petitioner that she was unemployed, out of
money, and alternating between staying at a friend’s house and sleeping in her car.
Respondent confessed that she was unable to take care of Larry and asked petitioner
to keep him for “a few months” until respondent “got back on her feet.”
After conferring with her then-husband,2 petitioner agreed to take Larry on
the condition that respondent permanently sign over her parental rights regarding
him to petitioner. Respondent initially reiterated her desire for a temporary
arrangement but ultimately agreed to surrender Larry to petitioner on a permanent
basis.
Petitioner testified that she and her husband separated on 24 November 2017 and
2
later divorced on 13 August 2019.
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IN RE: L.M.M.
Opinion of the Court
On 8 November 2017,3 petitioner drove to the Greyhound bus station in
Asheville to take Larry from respondent. At petitioner’s request, respondent signed
a document that purported to give petitioner permanent parental rights to Larry. A
family friend notarized the document in the parties’ presence. Petitioner then brought
Larry back to live with her. A few weeks later, respondent contacted petitioner on
Facebook to check on Larry and asked for a picture of him. Respondent also asked for
money. Petitioner sent respondent a photograph of Larry but refused to wire her any
money.
Respondent also phoned petitioner to ask if she would pay respondent’s cell
phone bill. Petitioner’s mother paid respondent’s phone bill for a brief period of time
so that petitioner and respondent would be able to contact each other.
After respondent sent her a second request for money on 21 November 2017,
petitioner blocked respondent on Facebook. Petitioner maintained the same phone
number thereafter but did not hear from respondent or make any attempt to contact
her after 21 November 2017. Respondent was incarcerated during 2018 and remained
in custody at the time of the termination hearing.
On 18 January 2019, after initiating adoption proceedings, petitioner filed a
petition to terminate respondent’s parental rights to Larry. Respondent filed a
response in opposition to the petition. The trial court held a hearing on 14 August
3 Although the trial court’s order lists the date as 17 November 2017, the hearing
testimony reflects a date of 8 November 2017.
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IN RE: L.M.M.
Opinion of the Court
2019 and entered an order terminating respondent’s parental rights to Larry on 27
September 2019. Respondent gave timely notice of appeal from the order.4
Analysis
Our Juvenile Code provides for a two-step process for the termination of
parental rights—an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-
1109, -1110 (2019). At the adjudicatory stage, the petitioner bears the burden of
proving by clear, cogent, and convincing evidence the existence of one or more grounds
for termination under subsection 7B-1111(a). N.C.G.S. § 7B-1109(e), (f). If the trial
court finds the existence of one or more grounds to terminate the respondent’s
parental rights, the matter proceeds to the dispositional stage where the court must
determine whether terminating the parent’s rights is in the juvenile’s best interests.
N.C.G.S. § 7B-1110(a).
Respondent does not contest the trial court’s dispositional determination that
it was in Larry’s best interests to terminate her parental rights. Accordingly, the sole
issue before us is whether the trial court correctly determined that one or more
grounds existed to terminate her parental rights under N.C.G.S. § 7B-1111.
We review a trial court’s adjudication under N.C.G.S. § 7B-1111 “to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law.” In re Montgomery, 311 N.C. 101, 111, 316
4 Although the trial court’s order also terminated the parental rights of Larry’s father,
he is not a party to this appeal.
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IN RE: L.M.M.
Opinion of the Court
S.E.2d 246, 253 (1984). “Where no exception is taken to a finding of fact by the trial
court, the finding is presumed to be supported by competent evidence and is binding
on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). We
review the trial court’s conclusions of law de novo. In re C.B.C., 373 N.C. 16, 19, 832
S.E.2d 692, 695 (2019).
The trial court concluded that petitioner had established three statutory
grounds for terminating respondent’s parental rights, including that respondent had
“willfully abandoned” Larry pursuant to N.C.G.S. § 7B-1111(a)(7). It is well
established that an adjudication of any single ground for termination under N.C.G.S.
§ 7B-1111(a) will suffice to support a trial court’s order terminating parental rights.
See, e.g., In re C.B.C., 373 N.C. at 23, 832 S.E.2d at 697. Therefore, if we uphold any
one of the three statutory grounds adjudicated by the trial court, we need not review
the remaining grounds. Id.; In re E.H.P., 372 N.C. 388, 395, 831 S.E.2d 49, 53 (2019).
Subsection 7B-1111(a)(7) allows for the termination of parental rights where
the parent has “willfully abandoned the juvenile for at least six consecutive months
immediately preceding the filing of the petition.” N.C.G.S. § 7B-1111(a)(7). The
determinative time period in this case is the six-month period between 18 July 2018
and 18 January 2019, the date petitioner filed her petition. We have held that “the
trial court may consider a parent’s conduct outside the six-month window in
evaluating a parent’s credibility and intentions” during the six months at issue. In re
C.B.C., 373 N.C. at 22, 832 S.E.2d at 697 (emphasis removed) (citation omitted).
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IN RE: L.M.M.
Opinion of the Court
As used in N.C.G.S. § 7B-1111(a)(7), abandonment requires a “purposeful,
deliberative and manifest willful determination to forego all parental duties and
relinquish all parental claims to the child.” In re A.G.D., 374 N.C. 317, 319, 841 S.E.2d
238, 240 (2020) (cleaned up). The willful intent element “is an integral part of
abandonment” and is determined according to the evidence before the trial court.
Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). This Court has
repeatedly held that “if a parent withholds that parent’s presence, love, care, the
opportunity to display filial affection, and willfully neglects to lend support and
maintenance, such parent relinquishes all parental claims and abandons the child.”
In re A.L.S., 374 N.C. 515, 519, 843 S.E.2d 89, 92 (2020) (cleaned up).
In her brief, respondent challenges several of the trial court’s findings of fact
as unsupported by clear, cogent, and convincing evidence and disputes the trial
court’s conclusion of law that respondent willfully abandoned Larry. We address her
contentions in turn.
I. Findings of Fact
In addition to recounting the circumstances of how Larry came into petitioner’s
care in November 2017, the trial court made the following pertinent findings of fact
regarding its adjudication of willful abandonment under N.C.G.S. § 7B-1111(a)(7):
13. Apart from the Facebook messenger text [in
November 2017], the Respondent-Mother has had no other
contact with the Petitioner regarding the minor child. She
has sent some requests for money to the Petitioner. The
Petitioner’s mother paid a cell phone bill for the
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IN RE: L.M.M.
Opinion of the Court
Respondent-Mother so the Respondent-Mother could be
contacted if needed.
....
15. Neither parent has provided any financial support
for the minor child.
....
17. Each of the Respondents are currently incarcerated
. . . . The Respondent-Mother has a projected release date
in December 2019.
18. Neither parent has provided any type of gifts, cards,
or other customary tokens of affection for the minor child
since he has been in the custody of the Petitioner. Neither
parent has ever taken any action as would have been
available to them while in custody.
19. During the six months immediately preceding the
filing of the petition to terminate their parental rights,
neither Respondent had any contact with the minor child.
During the six months immediately preceding the filing of
the petition, neither respondent provided any financial
support for the minor child.
20. Neither Respondent has performed any of the
natural and legal obligations of support and maintenance
for the minor child since he has been in the custody of the
Petitioner. . . .
....
22. Although the Petitioner blocked the Respondent-
Mother on Facebook, she did not block her access by phone
and Respondent-Mother also could communicate with her
family members.
Respondent initially contests the portion of Finding of Fact 13 providing that
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IN RE: L.M.M.
Opinion of the Court
she contacted petitioner about Larry on Facebook on just one occasion in November
2017, contending that she in fact contacted petitioner several times that month. In
her testimony, petitioner described two instances in November 2017 when respondent
sent her Facebook messages about Larry. In the first message, respondent asked how
Larry was doing and—after petitioner declined her request for money—requested a
picture of him. Upon receiving the picture, respondent sent petitioner a message
saying, “Sweet, little baby,” and “Love y’all.” On 21 November 2017, the day after her
second request for money, respondent sent petitioner a message asking whether
Larry “had a good birthday[.]” When petitioner replied in the affirmative, respondent
sent a message saying “good.” Although petitioner also received “a couple [of phone]
calls” from respondent during this period, she testified that one of the calls concerned
“a cell phone bill [respondent] wanted paid,” and that she could not recall the subject
of the second call. To the extent that Finding of Fact 13 undercounts the number of
messages respondent sent to petitioner about Larry in November 2017, we conclude
the discrepancy is harmless because the messages were exchanged “well outside the
determinative [six-month] time period.” In re K.N.K., 374 N.C. 50, 56, 839 S.E.2d 735,
740 (2020).
Respondent next challenges the portions of Finding of Fact 18 stating that she
failed to provide “tokens of affection” or take other “available” actions to show Larry
affection while she was incarcerated. She contends that petitioner offered no evidence
“on the issue of whether [respondent] could obtain gifts or other customary tokens of
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IN RE: L.M.M.
Opinion of the Court
affection [for Larry] while she was in prison.”
The trial court’s finding is supported by testimony detailing the
communications between respondent and petitioner. Petitioner’s testimony supports
the finding that respondent did not contact petitioner about Larry after 21 November
2017 and never provided Larry with any sign of her affection after placing him in
petitioner’s care. The evidence presented at the adjudicatory stage of the hearing does
not reveal precisely when in 2018 respondent became incarcerated. However, the fact
that respondent never exhibited affection to Larry after November 2017 necessarily
supports a finding that she did not do so during her incarceration.
We have made clear that “[a]lthough a parent’s options for showing affection
while incarcerated are greatly limited, a parent will not be excused from showing
interest in [the] child’s welfare by whatever means available.” In re C.B.C., 373 N.C.
at 19–20, 832 S.E.2d at 695; see also In re E.H.P., 372 N.C. at 394, 831 S.E.2d at 53
(“[T]he fact that respondent was incarcerated for almost the entirety of the six-month
period preceding the filing of the termination petition does not preclude a finding of
willful abandonment under N.C.G.S. § 7B-1111(a)(7).”). Contrary to respondent’s
characterization of Finding of Fact 18, the trial court did not find that she had the
ability to send Larry “gifts, cards, or other customary tokens of affection” while
incarcerated. Rather, the court found that respondent had not taken “any action
[emphasis added] as would have been available to [her]” while incarcerated so as to
demonstrate interest in or affection toward Larry.
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IN RE: L.M.M.
Opinion of the Court
The evidence before the trial court showed that respondent was in possession
of petitioner’s phone number and had other shared relatives in Wilkes County
through whom respondent could have attempted to communicate with Larry,
including respondent’s own mother as well as petitioner’s mother and grandmother.
Petitioner testified that she spoke to respondent’s mother “regularly” and had “never
been advised” of any attempt by respondent to contact her about Larry. Based on this
evidence, the trial court reasonably inferred that respondent had some means
available to display familial affection for Larry despite the circumstance of her
incarceration. See In re A.G.D., 374 N.C. 317, 327, 841 S.E.2d 238, 244 (2020)
(“Although the fact that he was incarcerated and subject to an order prohibiting him
from directly contacting the children created obvious obstacles to respondent-father’s
ability to show love, affection, and parental concern for the children, it did not render
such a showing completely impossible.”).
II. Conclusions of Law
Respondent also argues that the trial court’s findings that she did not contact
Larry or provide financial support for the child during the determinative six-month
period—even if accurate—do not support the court’s conclusion that she willfully
abandoned the child. Respondent contends that the trial court’s findings fail to
account for petitioner’s unwillingness to allow her to have contact with Larry after
November 2017. She further asserts that the court heard no evidence that she had
the ability to provide financial support for Larry while she was incarcerated.
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IN RE: L.M.M.
Opinion of the Court
Respondent argues that the evidence showed “[her] lack of contact and financial
support was not a willful act on her part.”
This Court previously addressed a similar willful abandonment issue involving
an incarcerated parent in In re A.G.D. In that case, we reviewed an adjudication of
willful abandonment that was made where the evidence showed that the respondent-
father was incarcerated, divorced from the children’s mother, and subject to a court
order “granting the mother sole legal and physical custody of the children, with
respondent-father being ordered to have no contact with them in the absence of a
further order of the court.” 374 N.C. at 318, 841 S.E.2d at 239. Despite the obvious
impediments faced by the respondent-father, we held that the trial court’s findings
nevertheless demonstrated his willful abandonment of the children:
A careful review of the termination orders reveals that the
trial court did not conclude that respondent-father’s
parental rights in the children were subject to termination
on the grounds of abandonment solely because he had
failed to make direct contact with them in violation of the
custody and visitation order. On the contrary, the trial
court specifically noted that respondent-father was “not
excused from showing an interest in his children’s welfare”
because of his incarceration and found as a fact that,
among other things, the only attempt that respondent-
father had made to contact the children had occurred when
he communicated with petitioner-mother about eighteen
months after his last “meaningful” contact with them. In
other words, the trial court found that respondent-father
had, with one exception, done nothing to maintain contact
with the mother, with whom the children lived and who
would know how they were doing[.]
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IN RE: L.M.M.
Opinion of the Court
Id. at 324, 841 S.E.2d at 242–43. Based on our determination that “the trial court’s
findings of fact reflect that respondent-father failed to do anything whatsoever to
express love, affection, and parental concern for the children during the relevant six-
month period,” we affirmed the order terminating his parental rights pursuant to
N.C.G.S. § 7B-1111(a)(7). Id. at 327, 841 S.E.2d at 244.
Here, as in In re A.G.D., respondent’s complete failure to show any interest in
Larry after November 2017—particularly during the six months between 18 July
2018 and 18 January 2019—supports the trial court’s conclusion that she acted
willfully in abandoning the child. Unlike the respondent-father in In re A.G.D.,
respondent was not subject to a court order that overrode her custodial rights as
Larry’s mother or otherwise barred her from contacting her child. Although petitioner
blocked respondent on Facebook, respondent was not precluded from contacting
petitioner by phone or contacting other relatives, including her own mother, in order
to convey her concern and affection for Larry. See In re A.L.S., 374 N.C. at 522, 843
S.E.2d at 94 (holding that the “[r]espondent-mother’s failure to even attempt any
form of contact or communication with [the child] gives rise to an inference that she
acted willfully in abdicating her parental role, notwithstanding any personal animus
between her and [the child’s custodians]”); In re A.G.D., 374 N.C. at 325, 841 S.E.2d
at 243 (noting that the “respondent-father had the legal right and practical ability to
contact the mother directly or through intermediaries for the purpose of inquiring
about the children’s welfare and asking that she convey his best wishes to them.”).
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IN RE: L.M.M.
Opinion of the Court
Respondent also cites the evidence that she initially asked petitioner to accept
a temporary caretaking role for Larry in November 2017—thereby resisting
petitioner’s demand that she “[s]ign him over to [petitioner] permanently”—as proof
that she did not willfully abandon the child. The trial court’s findings account for the
fact that respondent “initially wanted a temporary” arrangement for Larry “but later
agreed for the Petitioner to have the child permanently.” Although the court was free
to consider the circumstances under which respondent placed Larry in petitioner’s
care, those circumstances represented respondent’s intentions in November 2017
rather than during the six-month period relevant to an adjudication under N.C.G.S.
§ 7B-1111(a)(7). See In re K.N.K., 374 N.C. at 56, 839 S.E.2d at 740. The weight to
be assigned to respondent’s conduct during this earlier period was a matter left to
the trial court’s discretion as fact-finder. See In re C.B.C., 373 N.C. at 23, 832 S.E.2d
at 697 (“[W]hile the court may consider respondent’s prior efforts in seeking a
relationship with [the child] . . . , respondent’s prior actions will not preclude a
finding that he willfully abandoned [the child] pursuant to N.C.G.S. § 7B-1111(a)(7)
if he did nothing to maintain or establish a relationship with [her] during the
determinative six-month period.”).
Finally, while we agree with respondent that the trial court received no
evidence of her ability to support Larry financially, there is no indication that the
court based its adjudication on this lack of financial support. See generally Pratt, 257
N.C. at 501–02, 126 S.E.2d at 608 (“[A] mere failure of the parent of a minor child in
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IN RE: L.M.M.
Opinion of the Court
the custody of a third person to contribute to its support does not in and of itself
constitute abandonment. Explanations could be made which would be inconsistent
with a wil[l]ful intent to abandon.”); see also In re K.N.K., 374 N.C. at 54 n.3, 839
S.E.2d at 738 n.3 (concluding the trial court “would have reached the same
conclusion about respondent’s willful abandonment of” the child even without the
finding that he contributed nothing toward her support and maintenance). Although
the court found that “[n]either parent has provided any financial support for the
minor child[,]” the significance of this finding is to exclude the possibility that
respondent demonstrated her concern for Larry financially—rather than through
the personal contact and displays of affection contemplated in cases such as In re
A.D.G.
Because the evidence and the trial court’s findings show respondent undertook
no action “whatsoever to express love, affection, and parental concern for the child[ ]
during the relevant six-month period,” we hold that the trial court did not err by
determining that grounds existed under N.C.G.S. § 7B-1111(a)(7) to terminate
respondent’s parental rights. In light of our holding, we need not review the trial
court’s two additional grounds for termination. In re C.B.C., 373 N.C. at 23, 832
S.E.2d at 697.
Conclusion
For the reasons stated above, we affirm the trial court’s 27 September 2019
order terminating respondent’s parental rights.
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IN RE: L.M.M.
Opinion of the Court
AFFIRMED.
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Justice EARLS, dissenting.
In order to terminate respondent-mother Cathy’s parental rights to her son
Larry under N.C.G.S. § 7B-1111(a)(7), the trial court needed to find by clear, cogent,
and convincing evidence that the parent “willfully abandoned the juvenile for at least
six consecutive months immediately preceding the filing of the petition or motion.”
At trial, the burden was not on Cathy to prove that she did not willfully abandon
Larry; the burden was on the petitioner, Karen, to prove that Cathy did. See In re
Ballard, 311 N.C. 708, 716, 319 S.E.2d 227, 232 (1984). The trial court’s findings
make clear that Karen has failed to meet this burden. The trial court also concluded
that Karen proved two other grounds to terminate Cathy’s parental rights, neglect
and prior termination of the parent’s rights as to other children, while rejecting a
fourth alleged ground of incapability that will continue for the foreseeable future.
Because the evidence was not sufficient to show neglect, and no factual findings were
made concerning Cathy’s ability or willingness to establish a safe home, I would
reverse the trial court’s order and remand for further factual findings on the question
of whether the evidence in this case was sufficient to conclude that Cathy was unable
or unwilling to establish a safe home.
Larry was born on 18 November 2016 and lived with Cathy for almost a year.
On 8 November 2017, Cathy asked Karen to temporarily care for Larry. In addition
to the pleadings, the only other evidence before the trial court at the adjudicatory
stage of the hearing in this private termination proceeding was Karen’s testimony.
IN RE L.M.M.
Earls, J., dissenting.
Karen’s testimony regarding Cathy’s request highlights that, faced with
homelessness and no income, Cathy concluded that Larry needed better care than
she was able to provide to her child at that moment in her life. Karen testified to the
discussion she had with Cathy, explaining:
When she asked me if I wanted to do it just until she got
back on her feet, I sent back that I could not do that, it
would not be fair. She then said, “Well, how about I do this
temporarily, and then if I’m not back on my feet in this
amount of time, you’ll then have full rights.” And I then
again declined that.
Karen then testified that:
I printed some online [sic] because I needed to know—I did
not want anything to be said that I may have took him
while she might have been under the influence or that I
may have paid for him or just stole him or anything like
that. So yes, I did find some things online. A notary went
with me. My mom’s friend went with us and notarized
everything that was signed. And she was also read— it was
dark, so my mom read it out to her, and she signed it.
The paper signed by Cathy that evening was not made a part of the record. The
trial court’s finding states only that Cathy “later agreed for the Petitioner to have the
child permanently.” However, Karen’s testimony on that point is not at all clear. In
addition to the statement above, Karen’s only other testimony is that:
Q. You asked [Cathy] if she would be willing to
relinquish her parental rights?
A. Sign him over to me permanently is exactly what I
said.
Q. What did [Cathy] tell you?
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IN RE L.M.M.
Earls, J., dissenting.
A. When I sent that, she was actually away from the
phone. One of her friends responded and said that
she was not there, but they would let her know. So
then about an hour after, she responded and said,
“Could I give a temporary order, and then if I don’t
have everything finished or if I don’t have
everything back in line within a certain amount of
time, you would then take rights to him?” And I said,
“I’m sorry, you know, I would need full rights when
I picked him up.”
Q. What did [Cathy] tell you?
A. She then agreed. She said that was what was best
for him and that she could not provide for him and
that— I’m trying to think back. I’m so sorry. I’m
nervous. She then said that the only thing she
wanted is she wanted him to know about her.
Whatever Cathy might have understood from a text message about what “sign him
over to me permanently” meant, and whatever the piece of paper she signed actually
stated, the trial court’s ultimate conclusion concerning the events of 17 November
20171 was not that they evidenced willful abandonment or neglect on Cathy’s part.
Instead, the trial court found that Cathy’s decision was a reasonable childcare
arrangement sought out under difficult circumstances. The trial court explained:
I agree with the argument that the mother placing the
child with the Petitioner, that was, in my view, an
appropriate childcare arrangement that she reached out
and made. I know [respondent-father “Greg”]—there’s no
evidence that he directly entered into that. However, the
1 There is a discrepancy between the trial testimony about when this occurred and
the trial court’s finding of fact. The finding of fact states this occurred on November 17,
2017.
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IN RE L.M.M.
Earls, J., dissenting.
Court will rule that that ground has not been met for either.
[emphasis added].
Karen testified that she and Cathy had telephone conversations and
exchanged further Facebook messages over the next few weeks. Karen stated that at
some time in “the latter part of 2018” she became aware that Cathy was incarcerated,
and that Cathy would be incarcerated for all of 2019 up to the date of the hearing on
14 August 2019. Karen also admitted that she blocked Cathy from being able to
message her on Facebook:
Q. Do you try to— is [Cathy] blocked from you?
A. I can still see her things. I actually have every one
that we every (sic) sent on my phone.
Q. But you haven’t blocked her from sending you
messages on Facebook?
A. Yeah, I blocked her. I did. That was after I got the
request for Moneygram and when I had— there was
no other— but my number, she’s not blocked from
that. She can always reach out to me by phone.
Q. Cell phone?
A. Yes. She’s not blocked from anything except for
Facebook. And that was only because, when I make
posts about him, I didn’t want her to be able to see
pictures of him or things that we do in our lives. But
my phone is still available.
The termination petition was filed on 18 January 2019 and the summons was
addressed to Cathy at the N.C. Correctional Institute for Women in Raleigh. Thus,
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IN RE L.M.M.
Earls, J., dissenting.
Karen needed to present clear and cogent evidence that Cathy “willfully abandoned
the juvenile for at least six consecutive months immediately preceding the filing of
the petition” during the six-month period between 18 July 2018 and 18 January 2019.
Cathy was incarcerated during the “determinative period” preceding the termination
proceeding. “A parent's incarceration may be relevant to the determination of
whether parental rights should be terminated, but our precedents are quite clear—
and remain in full force—that incarceration, standing alone, is neither a sword nor a
shield in a termination of parental rights decision.” In re K.N., 373 N.C. 274, 282, 837
S.E.2d 861, 867 (2020) (cleaned up). Accordingly, the burden was on Karen to prove
that, “upon an analysis of the relevant facts and circumstances,” Cathy willfully
abandoned Larry. Id. at 283, 837 S.E.2d at 867–68.
The evidence the trial court relies upon does not support such a finding.
Karen’s testimony, supplemented by no other evidence besides the pleadings, simply
does not prove that Cathy willfully abandoned Larry. All the Court could know based
on Karen’s testimony is that Karen did not hear from Cathy during the determinative
period and that, for some unspecified part of that time, Cathy was incarcerated.
Karen’s testimony does not prove whether or not Cathy took steps to maintain a
connection with her child given the opportunities available to her during her
incarceration.
In the circumstances of this case, absent any other indications of Cathy’s intent
to abandon her son, the mere lack of actual contact by an incarcerated parent whose
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IN RE L.M.M.
Earls, J., dissenting.
location was known to the petitioner is not the same thing as evidence that the parent
did not attempt to make contact, as this exchange illustrates:
Q. Have you yourself had tried to contact her at all?
A. No, sir.
Q. And are you aware that she’s tried to contact, if not
you, other people in your family to get a hold of you?
A. No, sir.
Q. Okay.
A. And I did speak to her mom regularly, and I’ve never
been advised of that at all.
This testimony proves either that Cathy did not make any attempt to contact Karen
in order to maintain a connection with Larry, or that she attempted to contact Karen
but was unsuccessful in her efforts. The former would be evidence that could prove
willful abandonment but the latter, standing alone as it was in this case, could not.
The absence of evidence is not the same thing as clear, cogent, and convincing
evidence to prove a fact. See In re Moore, 306 N.C. 394, 403–04, 293 S.E.2d 127, 132
(1982) (“G.S. 7A-289.30(e) provides, inter alia, that in an adjudicatory hearing on a
petition to terminate parental rights the court shall find the facts and ‘all findings of
fact shall be based on clear, cogent, and convincing evidence.’ ”) Here, based on
Karen’s evidence, the trial court could not know what Cathy did or did not do while
in custody during the determinative six-month period. The testimony only established
that if Cathy did make the efforts the majority identifies as necessary for an
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incarcerated parent to make to demonstrate a lack of willful abandonment, namely
“showing interest in [the] child’s welfare by whatever means available,” those efforts
were unsuccessful.
At the dispositional stage of the hearing, after the trial court had found
grounds to terminate Cathy’s parental rights, Cathy testified that she attempted to
contact Karen whenever she had access to Wi-Fi. Cathy attempted to contact Karen
by Facebook Messenger, but Karen informed Cathy that she was blocking Cathy on
Facebook because she had obtained custody of Larry and, as Karen testified, she
“didn’t want her to be able to see pictures of him or things that we do in our lives,” or
as Cathy testified, “[Karen] didn’t want no drama or nothing to be said.” Cathy also
testified that she attempted to contact Karen and Larry by text messaging. Cathy
testified that she wrote her mother, aunt, and grandmother in an attempt to contact
Larry, to find out how he was doing, and to obtain pictures of him. Cathy testified
that she also sent birthday, Christmas, and Easter cards to Larry through her
mother, cards that she believed had been given to Karen.
This evidence was not presented at the adjudication stage. It is true that even
it if had been presented, the trial court was free to make its own determination that
Cathy’s testimony was not credible. The fundamental point is that without evidence
of what Cathy did or did not do, especially while she was in custody, the trial court
could not merely assume that Cathy willfully abandoned her son.
Karen’s testimony did not “prove” what Cathy did or did not do. The burden to
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prove willful abandonment requires evidence of the parent’s intent. In this context,
“abandonment imports any wil[l]ful or intentional conduct on the part of the parent
which evinces a settled purpose to forego all parental duties and relinquish all
parental claims to the child.” In re K.R.C., 374 N.C. 849, 860, 845 S.E.2d 56, 63 (N.C.
2020) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)). The
trial court’s factual findings do not support the legal conclusion that Cathy willfully
abandoned her son, only that she was unable to get in touch with her son’s caregiver
while she was incarcerated. Under N.C.G.S. § 7B-1111(a)(7), that is a crucial
distinction.
The allocation of the burden to petitioners to affirmatively prove by clear,
cogent, and convincing evidence that termination is warranted is no mere
technicality. Until termination was ordered, respondent enjoyed a “constitutionally
protected paramount right” to the “custody, care, and control” of her child. Owenby v.
Young, 357 N.C. 142, 148, 579 S.E.2d 264, 268 (2003). Because there are “few forms
of state action [that] are both so severe and so irreversible” as terminating parental
rights, the United States Supreme Court has long held that petitioners must carry
the “elevated burden of proof” that termination is warranted by clear and convincing
evidence. Santosky v. Kramer, 455 U.S. 745, 759 (1982). Cases like this one
“involving the State’s authority to sever permanently a parent-child bond demands
the close consideration the Court has long required when a family association so
undeniably important is at stake.” M.L.B. v. S.L.J., 519 U.S. 102, 116–17 (1996). The
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judiciary must be “mindful of the gravity of the sanction imposed on” a mother when
her parental rights are terminated and accord all due respect to the substantive and
procedural protections the law affords to even imperfect parents. Id. Before
undertaking action that is “irretrievably destructive of the most fundamental family
relationship,” id. at 121, the trial court must find facts proving respondent’s alleged
lack of efforts to maintain a connection with her child, not simply facts attesting to
the petitioner’s experience and perception of her interactions with respondent.
Likewise, the factual findings in this case are insufficient to support the
conclusion that Larry was a neglected child. It is well established that “[a] finding of
neglect sufficient to terminate parental rights must be based on evidence showing
neglect at the time of the termination proceeding.” In re Young, 346 N.C. 244, 248,
485 S.E.2d 612, 615 (1997) (citing In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227,
232 (1984)). Moreover, a juvenile cannot be adjudicated as neglected solely based
upon previous Department of Social Services involvement relating to other children.
See In re J.A.M., 372 N.C. 1, 9, 822 S.E.2d 693, 698. (2019). To support a conclusion
that a juvenile does not receive proper care, the findings of fact must show current
circumstances that present a risk to the juvenile. Where the child is not presently in
the parent’s custody, the trial court must make findings of fact that the parent
previously neglected the child in order to reach the conclusion that the child is a
neglected juvenile under N.C.G.S. § 7B-1111(a)(1). See In re D.L.W., 368 N.C. 835,
843, 788 S.E.2d 162, 167 (2016) (citing In re Ballard, 311 N.C. 708, 713–15, 319
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S.E.2d 227, 231–32 (1984)).
In this case, as the trial court observed, Cathy recognized when she was unable
to provide for Larry and sought an appropriate alternative childcare arrangement,
placing Larry with Karen. Karen’s testimony was that Larry was healthy; there was
no evidence that he suffered malnutrition, adverse health conditions or other issues
while he was in Cathy’s care. The evidence in this case does not establish past
neglect. A trial court should not imply that a parent has neglected her child simply
because she recognizes the difficulties attendant in her own circumstances and seeks
to ameliorate their harmful consequences. To find neglect in this case treats the
mother who takes definitive action to further her child’s interests in desperate
circumstances no differently from the mother who does not or cannot. The
respondent’s protective actions do not support the inference that she neglected her
child under N.C.G.S. § 7B-1111(a)(1).
The trial court’s error with regard to the third ground, prior termination of the
parent’s rights as to other children under N.C.G.S. § 7B-1111(a)(9), is readily
apparent from the trial transcript and the trial court’s order. The statute provides
that the court may terminate the parental rights upon a finding that “[t]he parental
rights of the parent with respect to another child of the parent have been terminated
involuntarily by a court of competent jurisdiction and the parent lacks the ability or
willingness to establish a safe home.” N.C.G.S. § 7B-1111(a)(9). Here, the court made
the first requisite finding for this ground—that respondent’s parental rights had been
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terminated “with respect to another child”—but completely omitted any consideration
of the second requisite finding that respondent lacked the ability or willingness to
establish a safe home. It seems possible that counsel inadvertently misled the trial
court on this point when stating at trial, “Well, I’ll be brief. You know, it’s kind of
cliche. It is what it is as far as the respondents being involuntarily terminated before.
It just is a fact, so that technically is a ground good enough to get us past
adjudication.” Further, the trial court’s conclusion of law in its order terminating
parental rights on this ground states only that “[t]he parental rights of both
Respondents have been terminated involuntarily by a Court of competent jurisdiction
[N.C.G.S. § 7B-1111(a)(9)].” Therefore, where the trial court was operating under a
clear misunderstanding of the applicable law on this question and the evidence was
insufficient to support other grounds for termination, the case should be remanded
for further findings on the question of whether the evidence was sufficient to show
that Cathy lacked the present ability or willingness to establish a safe home. It may
be that the evidence produced at trial was clear, cogent, and convincing that Cathy
does not have the will or the ability to provide a safe home for Larry. However, those
are findings that, in these circumstances, should be made in the first instance by the
trial court.
For the above stated reasons, I respectfully dissent.
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