In re: S.I.D.-M. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-503
Filed 21 March 2023
Cabarrus County, No. 20-JT-109
IN THE MATTER OF: S.I.D.-M.
Appeal by petition for writ of certiorari by respondent-father from order
entered 18 March 2022 by Judge Christy E. Wilhelm in District Court, Cabarrus
County. Heard in the Court of Appeals 21 February 2023.
Richard Croutharmel, for respondent-appellant-father.
No brief for petitioner-appellee-mother.
STROUD, Chief Judge.
Respondent-father appeals from an order terminating his parental rights for
willfully abandoning his child. Father argues he did not willfully abandon his child
because he attempted to reach out to Mother by email, through the parties’ attorneys,
two weeks before the termination petition was filed. Because clear, cogent, and
convincing evidence exists in the record to support the trial court’s findings of fact,
and the trial court’s findings support its conclusion that the minor child was an
abandoned juvenile, the trial court’s termination of Father’s parental rights is
affirmed.
IN RE: S.I.D.-M.
Opinion of the Court
I. Background
Sidney1 was born to Mother and Father in February 2018. Mother and Father
were never married. In a previous custody proceeding in Mecklenburg County,
Mother was granted full custody of Sidney with scheduled visitation for Father.
Venue of the custody proceeding was later transferred to Cabarrus County.
In early August 2019, Father “attempted suicide and was hospitalized for
mental health purposes.” On 13 August 2019, Mother secured an ex parte custody
order suspending Father’s visitation. Mother also filed a motion to modify visitation,
and on 28 August 2019, the District Court in Cabarrus County entered a written
order extending the ex parte order and suspending Father’s visitation (the “Order
Suspending Visitation”) until he “presents himself to the Court and shows just cause
as to why his visits should be reinstated.”2 The relevant portions of the Order
Suspending Visitation, which is not at issue on appeal, state:
FINDING AS FACT
....
3. An ex parte order was entered herein on or
about August 13, 2019;
4. The Cabarrus County Department of Social
Services has opened an investigation and has been unable
to locate the [Father];
1A pseudonym is used.
2 The original custody order is not in the record on appeal, but the petition made detailed
allegations regarding the Custody Order and the Order Suspending Visitation, and Father
admitted these allegations in his answer.
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5. Service by the Sheriff was returned unserved
and [Mother] has no information regarding [Father]’s
present whereabouts;
6. [Father]’s mental stability is in question and
it would be contrary to the minor child’s best interest for
him to have visitation at this time.
Based on these Findings of Fact, the Court hereby
makes the following:
CONCLUSIONS OF LAW
....
2. This temporary order is in the best interest of
the minor child.
And based on these Findings of Fact and
Conclusions of Law:
IT IS HEREBY ORDERED ADJUDGED AND
DECREED as follows:
1. [Father]’s visitation with the minor child
[Sidney] is suspended until such time as he presents
himself to the Court and shows just cause as to why his
visits should be reinstated.
Father was unable to return to work for several months because of his mental health
issues but his therapist eventually approved his return to work in March 2020.
On 24 July 2020, Mother filed a “Petition for Termination of Parental Rights”
(the “Petition”) in the District Court, Cabarrus County. The Petition recited basic
facts about the parties, that Mother had full custody of Sidney and Father had
visitation, and then alleged:
7. Petitioner alleges that the following facts
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Opinion of the Court
establish grounds for the [Father]’s parental rights to be
terminated:
a. Pursuant to 7B–1111(a)(4), [Father] has
willfully failed without justification to
adequately pay for the care, support, and
education of the juvenile in that he has fallen
behind on his child support obligation and
currently has an arrearage of approximately
$2,500.00.
b. Pursuant to 7B–1111(a)(6), [Father] is
incapable of providing for the proper care and
supervision of the juvenile in that:
i. On or about August 2, 2019, [Father]
attempted suicide by jumping off [a
bridge]. [Father] was saved by a
Charlotte-Mecklenburg Police Officer. He
was then escorted by ambulance to
Novant–Mill Hill where he was
hospitalized for a mental health
evaluation.
c. Pursuant to 7B–1111(a)(7), [Father] has
willfully abandoned the juvenile for at least six
consecutive months immediately preceding the
filing of this petition based upon the following:
i. Respondent has not visited with the child
since July 2019;
ii. Since the Order on August 28, 2019,
[Father] has not made any efforts to reach
out to [Mother] about the minor child nor
has he filed anything in the Chapter 50
Action to have his visitation reinstated;
iii. Respondent has at all times known how to
contact [Mother] either via phone or email.
[Father] knows [Mother]’s residential
address as well as how to contact [Mother]
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Opinion of the Court
through her family[.]
Father filed an answer 10 September 2020 admitting the allegations regarding
the parties’ and child’s residences, the parties’ status as parents of the child, and
allegations regarding the prior custody action and the Order Suspending Visitation.
Father denied the remaining allegations of the Petition. As to the grounds for
termination, Father’s answer stated:
7. The allegations contained in Paragraph 7 are denied.
a. Denied as to willfulness. [Father] was out of
work following his mental health crisis and
began to resume his child support payments
upon returning to work.
b. Admitted as to the incident [of attempted
suicide], but denied as to a continual issue that
would render [Father] incapable of providing for
the proper care and supervision of the juvenile
following his treatment after his mental health
crisis.
c. Denied as to willfulness.
i. Admitted as to time [Father] has not seen
his child.
ii. Denied. [Father] obtained counsel and
reached out via counsel as to what
documentation was needed to resume
visits on July 13, 2020 and Petitioner
responded by filing to terminate his rights
on July 23, 2020.
iii. [Father] has [Mother’s] email and was
communicating with her via email through
at least August 2019 about their child.
A Guardian ad litem (“GAL”) was appointed 15 September 2020 and the hearing was
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Opinion of the Court
continued until 27 October 2020.3 The Termination of Parental Rights (“TPR”)
hearing was then repeatedly continued before ultimately being set for 21 February
2022.
Our dissenting colleague notes that the TPR hearing was “inexplicably”
delayed, and while we agree the record does not fully explain all the continuances, it
does include all the relevant motions and orders. We also note Father did not raise
any argument on appeal as to any continuance or the trial court’s denial of his motion
to continue filed just before the final hearing. In fact, the delay would have served
only to benefit Father, as it gave him more time and opportunity to demonstrate his
concern for the child by requesting an opportunity to see or communicate with her,
seeking information regarding her development and welfare, or sending gifts or cards.
According to the record, on 27 October 2020, both parents, their counsel, and
the GAL were present and the Pretrial Order was entered; the date of the TPR
hearing was to be determined. On 20 April 2021, a “status review” hearing was set
for 11 May 2021. At the 11 May 2021 hearing, a continuance order was issued for
purposes of the GAL report and hearing was set for 25 May 2021. At the 25 May 2021
hearing, the hearing was continued to 6 July 2021 for purposes of review of the status
3 At the TPR hearing both parties reference a motion Father apparently made September
2020 to attempt to resume visitation. The trial court’s TPR order also references this motion.
The record does not contain this motion and the evidence presented at the hearing did not
address the details of the motion or the disposition, if any. The only document filed by Father
in September 2020 in the record is Father’s answer.
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of the GAL report and the hearing was “continued for Dom Setting Request” and set
for 6 July 2021. On 4 June 2021, Mother’s counsel filed a “Juvenile Case Request for
Setting,” and on 15 June 2021, the Chief District Court Judge set the matter for
hearing on 26 August 2021. On or about 24 August 2021, Father filed an “Objection
to Holding Audio-Video Hearing and Motion to Continue” to the hearing set for 26
August 2021. According to Father’s Motion to Continue, the hearing had been set as
an in-person hearing but on 23 August 2021, Mother’s counsel “notified the Court of
a health issue that would prevent her client from attending the hearing in person.”
Father informally objected by email to a remote hearing, but then received an order
setting the hearing as a WebEx hearing on the originally-scheduled date of 26 August
2021. Father objected to a remote hearing for various reasons and requested that the
case be continued “until such time as it is safe for the matter to be heard in person.”
On 24 August 2021, the trial court entered an order denying Father’s motion to
continue. The trial court found that the minor child had tested positive for COVID
and the parties had attempted to find an alternative in-person hearing date within
the following 30 days but were unable to find a suitable date. The trial court denied
continuance to avoid further delay. However, on 26 August 2021, the trial court
entered a Continuance Order noting Mother’s COVID exposure and that both
attorneys had agreed to continue the hearing to 12 October 2021. On 12 October
2021, the trial court entered an “Order Continuing Case Off Calendar” finding
Father’s attorney made a motion to continue in open court and Mother’s attorney
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consented to continue to a new date to be determined. On the same day, Mother’s
attorney filed a “Juvenile Case Request for Setting,” and on 19 October 2021, the
Chief District Court Judge noticed the TPR hearing for 21 February 2022.
The TPR hearing was held 21 February 2022. Father’s arguments on appeal
only address the adjudicatory phase of the hearing. During the adjudicatory phase
of the hearing, Father testified that at the time, in August 2019, when he was having
his mental health crisis, he was not aware of the return hearing for the ex parte order,
but later he did become aware of the Order Suspending Visitation entered 28 August
2019. Father then testified that although he did not personally schedule anything
with the trial court to resume visitation, as directed in the Order Suspending
Visitation, he did attempt to resume visitation by communicating with Mother
through his attorney.
Father testified he thought “there was a no[-]contact order in place” and he
“did not want to violate that order, so what [he] did was just try to make sure
everything was done with [his] mental health so [he] could get documentation proving
that [he was] not a threat to [his] child.” Father also testified he believed the Order
Suspending Visitation was similar to a domestic violence protective order, and
Mother “advised [him] that there was a no[-]contact order in place[,]” which is why
he attempted to work with his attorney to resume visitation and never reached out
to Mother directly. Father testified he had not attempted to send gifts or otherwise
contact Sidney while he recovered from his mental health crisis and confirmed by the
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time of the hearing it had been approximately 18 months since he had contact with
Sidney.
Mother testified she had not heard from Father since he was released from the
hospital in August 2019. Mother testified her contact information had not changed
since the last time she spoke to Father and that Father had also been provided
Mother’s sister’s contact information that he could use to reach out to contact Mother.
Mother then testified she had heard from Father as part of the TPR proceedings in
July 2020.
As to the Order Suspending Visitation, Mother confirmed she spoke with
Father and “let him know that there was an order in place and he had to contact the
county case worker that was assigned to the case and that they were trying to locate
him.” Mother also testified the Order Suspending Visitation was not a no-contact
order and Mother “told [Father] that he would have to go through the county case
worker and through court to file the motion” to resume visitation with Sidney.
Mother then testified she was told about the July 2020 email from Father’s attorney;
the email said Father was “looking to resume visits;” and the email was received prior
to her filing of the Petition.
Less than 30 days following the hearing, as required by North Carolina
General Statute § 7B-1109, on 18 March 2022, the trial court entered an order
terminating Father’s parental rights (the “TPR Order”). The TPR Order makes
adjudicatory findings of fact addressing the Custody Order and Father’s attempted
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suicide. The TPR Order also finds as fact that Father made no efforts to contact
Mother since 2019, even though Father had contact information for Mother, and
Father’s attorney did contact Mother’s attorney in July 2020. The trial court also
found Father had resumed paying child support upon returning to work.
The trial court ultimately found evidence did not exist to support termination
of Father’s parental rights on the grounds he failed to pay child support or that Father
was incapable of providing for the care and supervision of Sidney. The trial court did
conclude Father’s parental rights should be terminated “[p]ursuant to [North
Carolina General Statute §] 7B–1111(a)(7), [because Father] ha[d] willfully
abandoned [Sidney] for at least six consecutive months immediately preceding the
filing of th[e] petition based upon” the trial court’s findings and Father’s statements
at the TPR hearing and also because “[f]or at least the six (6) months preceding the
filing of the Petition, [Father] withheld his presence, love, and care from the child.”
The Order then makes dispositional findings and concludes Father’s parental rights
should be terminated. Father filed notice of appeal 21 April 2022.
II. Jurisdiction
Father filed a Petition for Writ of Certiorari with this Court stating his notice
of appeal was untimely, but also noting no certificate of service was attached to the
trial court’s TPR Order. The record does not contain a certificate of service attached
to the TPR Order so our record does not provide the date Father was served with the
TPR Order. Father also noted “[o]ur Juvenile Code requires that both [Father] and
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Opinion of the Court
his trial counsel sign the notice of appeal[,]” see N.C. Gen. Stat. § 7B-1001(c) (2022);
N.C. R. App. P. 3.1(a), otherwise this Court is without jurisdiction to hear an appeal
from a termination of parental rights. See In re L.B., 187 N.C. App. 326, 331-32, 653
S.E.2d 240, 244 (2007). The signature date on Father’s notice of appeal is 12 April
2022. Father asserts he and his trial counsel met on 12 April 2022 to sign the notice
of appeal and he had no control over trial counsel’s actions after he signed the notice
of appeal; the potentially late filing is therefore no fault of his own.
North Carolina General Statute § 7B-1001(b) requires notice of appeal to “be
made within 30 days after entry and service of the order” appealed from. N.C. Gen.
Stat. § 7B-1001(b) (2022). However, there is no indication in the record when Father
was served the 18 March 2022 TPR Order. If the TPR Order was served between 18
March 2022 and 20 March 2022, then Father’s 21 April 2022 notice of appeal was
untimely. If Father was served after 21 March 2022, then Father’s 21 April 2022
notice of appeal was timely.
We have considered the gravity of termination of Father’s parental rights and
Father’s assertion that he timely met with his counsel and signed the notice of appeal.
In addition, if Father’s appeal was actually filed late, the greatest period by which
Father’s appeal could be untimely was the short, 3-day difference between 18 April
2022 and 21 April 2022. In an abundance of caution and in our discretion we allow
Father’s Petition for Writ of Certiorari. See generally N.C. R. App. P. 21; see also
State v. Gardner, 225 N.C. App. 161, 165, 736 S.E.2d 826, 829 (2013) (“We have also
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held that where a [respondent] has lost his right of appeal through no fault of his
own, but rather as a result of the actions of counsel, failure to issue a writ of certiorari
would be manifestly unjust.”).
III. Father’s Appeal
Our Juvenile Code establishes a two-stage framework for the termination of
parental rights; the first stage is adjudicatory and the second dispositional. See N.C.
Gen. Stat. §§ 7B-1109, 1110 (2020). Father only challenges the adjudication of Sidney
as abandoned, and his sole argument on appeal is that “[t]he trial court reversibly
erred in concluding the existence of the ground of abandonment to terminate
[Father]’s parental rights because the evidence failed to support the findings of fact
and the findings of fact failed to support this conclusion of law.” For the reasons
below, we disagree and affirm the trial court’s TPR Order.
A. Standard of Review
At the adjudicatory stage, “[t]he standard of review in termination of parental
rights cases is whether the findings of fact are supported by clear, cogent and
convincing evidence and whether these findings, in turn, support the conclusions of
law.” In re C.M.P., 254 N.C. App. 647, 654, 803 S.E.2d 853, 858 (2017) (quotation
marks omitted). “If the trial court’s findings of fact are supported by ample,
competent evidence, they are binding on appeal, even though there may be evidence
to the contrary.” Id. (quotation marks omitted). “Unchallenged findings of fact are
conclusive on appeal and binding on this Court.” Id. (quotation marks omitted). The
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trial court’s conclusions of law are reviewed de novo. Id. (citation omitted).
B. Abandonment of a Juvenile
The trial court terminated Father’s parental rights pursuant to North Carolina
General Statute § 7B-1111(a)(7) for willfully abandoning Sidney at least six months
before the Petition was filed. North Carolina General Statute § 7B-1111(a)(7)
provides that:
(a) The court may terminate the parental rights upon a
finding of one or more of the following:
....
(7) The parent has willfully abandoned the juvenile for
at least six consecutive months immediately preceding
the filing of the petition or motion[.]
N.C. Gen. Stat. § 7B-1111(a)(7) (2020).
Our Supreme Court has further defined willful abandonment:
We have held that “[a]bandonment implies conduct on the
part of the parent which manifests a willful determination
to forego all parental duties and relinquish all parental
claims to the child.” In re Young, 346 N.C. 244, 251, 485
S.E.2d 612, 617 (1997) (quoting In re Adoption of Searle, 82
N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986)); see also
Pratt v. Bishop, 257 N.C. 486, 502, 126 S.E.2d 597, 608
(1962) (“Abandonment requires a wil[l]ful intent to escape
parental responsibility and conduct in effectuation of such
intent.”). “It has been held that if a parent withholds his
presence, his love, his care, the opportunity to display filial
affection, and wil[l]fully neglects to lend support and
maintenance, such parent relinquishes all parental claims
and abandons the child.” Id. at 501, 126 S.E.2d at 608.
In re E.H.P., 372 N.C. 388, 393, 831 S.E.2d 49, 52 (2019). “In this context, the word
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[‘]willful’ encompasses more than an intention to do a thing; there must also be
purpose and deliberation. Whether a biological parent has a willful intent to abandon
his child is a question of fact to be determined from the evidence.” In re A.K.D., 227
N.C. App. 58, 61, 745 S.E.2d 7, 9 (2013) (quotation marks omitted). But, “[a]
delinquent parent may not dissipate at will the legal effects of his abandonment by
merely expressing a desire for the return of the abandoned juvenile.” In re C.J.H.,
240 N.C. App. 489, 504, 772 S.E.2d 82, 92 (2015) (citation omitted).
Further, “‘[a]lthough the trial court may consider a parent’s conduct outside
the six-month window in evaluating a parent’s credibility and intentions, the
“determinative” period for adjudicating willful abandonment is the six consecutive
months preceding the filing of the petition.’” In re N.D.A., 373 N.C. 71, 77, 833 S.E.2d
768, 773 (2019) (quoting In re D.E.M., 257 N.C. App. 618, 619, 810 S.E.2d 375, 378
(2018)). Here, because the Petition was filed 24 July 2020, the relevant six-month
period for purposes of North Carolina General Statute § 7B-1111(a)(7) was 24
January 2020 to 24 July 2020. See N.C. Gen. Stat. § 7B-1111(a)(7).
We first address the findings of fact Father specifically challenges as
unsupported by the evidence presented at the TPR hearing. This Court reviews the
challenged findings for whether they “are supported by clear, cogent and convincing
evidence[, and] . . . [i]f the trial court’s findings of fact are supported by ample,
competent evidence, they are binding on appeal, even though there may be evidence
to the contrary.” In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at 858 (citation and
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quotation marks omitted).
1. Finding 14
Finding 14 states: “In July 2020, an attorney for [Father] contacted the
attorney for [Mother].” Father asserts finding 14 is “erroneous as a matter of law
because it fails to include the reason for the July 2020 [email],” and the reason for the
email, that Father wanted to resume visits, “negated the TPR ground of
abandonment.”
We first note a copy of this email is not in the record on appeal. However,
Mother testified about an email from July 2020:
[Father’s Counsel]: Did your attorney communicate when
she received communications in your case from either a
party or an attorney?
[Mother]: Yes.
[Father’s Counsel]: And were you made aware of an e-mail
that was sent in July?
[Mother]: I believe it was -- she attached it, or there was a
forward in there, so yes.
[Father’s Counsel]: Did you (inaudible) an e-mail?
[Mother]: Yes
[Father’s Counsel]: On [Father’s] behalf about re-starting
visitation?
[Mother]: It was sent through the -- I think what the e-mail
said was he’s looking to resume visits, yes.
[Father’s Counsel]: Okay. And when did you get that in
comparison to when you filed the TPR?
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[Mother]: That was all in July.
[Father’s Counsel]: And did you get the e-mail before you
filed the TPR?
[Mother]: Yes.
After this exchange, Mother admitted her response after receiving the email was to
file the Petition. This exchange is the only reference in the entire record to the
substance of an email in July 2020 in which Father sought to resume visits with
Sidney.
Finding 14 is supported by the evidence, as Father’s attorney did contact
Mother’s attorney by email. But the sole evidence indicating this email had anything
to do with visitation is Mother’s uncertain statement: “I think what the e-mail said
was he’s looking to resume visits, yes.” Father did not testify about the substance of
the email sent in July 2020; he only testified about general contact with his attorney
“about getting everything started back up for my visitation.” And, as stated above,
the email was not presented to the trial court and is not in the record for this Court
to review.
Father’s argument that finding 14 “is woefully inadequate in that it fails to
indicate the nature of the July 2020 [email] contact” is without merit. The trial court
has the duty of evaluating the weight and credibility of the evidence, see, e.g., In re
K.W., 282 N.C. App. 283, 290, 871 S.E.2d 146, 152 (2022) (citation omitted), and in a
TPR case, before making a finding of fact, the trial court must be sufficiently satisfied
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with the evidence to be able to find the facts by clear, cogent, and convincing evidence.
In re B.C.B., 374 N.C. 32, 35, 839 S.E.2d 748, 751 (2020). Considering the minimal
evidence that the email was regarding visitation, the trial court’s finding is proper.
The finding acknowledges there was a contact between the parties’ attorneys and the
trial court did not have any obligation to address the nature of the July 2020 contact
further.
2. Findings 12 and 21
Father next disputes findings 12 and 21 because “[t]hese two findings are
contradicted by finding of fact #14[.]” Finding 12 states, “[Father] did not make any
further efforts to contact [Mother].” Finding 21 states, “Other than the one phone
call to [Mother] in August 2019, [Father] did not attempt to contact [Mother] to set
up a visit or to check on the child.”
Finding 12 is not inconsistent with finding 14. Finding 12 immediately
followed finding 11, which was unchallenged on appeal and stated:
[Father] called [Mother] one time in August 2019 after he
was released from the hospital. [Mother] informed him
that there was a new custody order in place and indicated
that he should contact the social worker handling the
Department of Social Services case.
Finding 11 summarizes the direct contact between Father and Mother since Father’s
mental health crisis. When read in context, finding 12 builds on the context from
finding 11, and there was “ample, competent evidence[,]” In re C.M.P., 254 N.C. App.
at 654, 803 S.E.2d at 858, to support a finding that Father did not attempt to directly
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call or contact Mother to seek visitation with Sidney between August 2019 and July
2020.
At trial, Father testified he believed a no-contact order was in place. Father
also testified he was never served with a no-contact order, and he believed the Order
Suspending Visitation was a no-contact order because he did not read the order
thoroughly enough. The Order Suspending Visitation was in evidence and it has no
provisions barring Father from contact or communication with Mother or Sidney; it
only suspends his visitation set by prior order “until such time as he presents himself
to the Court and shows just cause as to why his visits should be reinstated.” When
questioned on his contact with Mother, Father admitted he never texted or called
Mother, although he had her contact information; Father agreed he never “tried to
send any cards or gifts or letters[;]”and Father agreed he never “tried to communicate
with [Mother] in any way about [Sidney’s] well[-]being over the last couple years[.]”
Mother testified that she had not heard from Father since August 2019, her
contact information had not changed, and he was not blocked from communicating
with her in any way. Similar to finding 14, the only evidence that Father contacted
Mother regarding anything to do with Sidney is an equivocal statement by Mother
that she heard from Father in July of 2020 and she thought Father had expressed a
desire to resume visitation. The evidence in the Record is sufficient to support finding
12, and finding 12 does not contradict finding 14. Finding 21 is not erroneous for the
same reasons. There was competent evidence to support the trial court’s findings
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that Father did not attempt to contact Mother between August 2019 and July 2020
regarding Sidney’s welfare.
3. Finding 25
Finding 25 states: “At the time of the filing of the Petition, it had been eleven (11)
months since the [Father] had visited with the child or communicated with the
[Mother] about her well-being, a fact which he admits.” Father asserts this finding
is erroneous for the same reasons as findings 12, 14, and 21. Father asserts his
attorney’s email contained a request for visitation and “[s]uch a contact was
tantamount to a communication with [Mother] about Sidney’s well-being.” We
disagree. We have already addressed all the evidence regarding the substance of the
email, which is minimal. There was no evidence Father requested any information
about Sidney’s health, development, or welfare. At most, the email between the
parties’ attorneys was Father “merely expressing a desire for the return of the
abandoned juvenile.” In re C.J.H., 240 N.C. App. at 504, 772 S.E.2d at 92. For the
reasons discussed above, this finding is supported by the evidence.
4. Conclusions of Law
Father then challenges finding 36 and asserts finding 36 is actually a
conclusion of law because “it mirrors the language from the TPR statute on the
abandonment ground.” We agree and will review finding 36, as well as the trial
court’s other conclusions, de novo. In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at
858; see also In re Helms, 127 N.C. App. 505, 510-11, 491 S.E.2d 672, 675-76 (1997)
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(“[A]ny determination requiring the exercise of judgment, . . . or the application of
legal principles, . . . is more properly classified a conclusion of law.”).
Finding 36 states:
36. That the Court finds by clear, cogent and
convincing evidence that the following grounds exist to
terminate the parental rights of [Father] . . . :
a. Pursuant to 7B–1111(a)(7), [Father] has
willfully abandoned the juvenile for at least
six consecutive months immediately
preceding the filing of this petition based
upon the previously stated Findings of Fact
and [Father]’s own admission.
b. For at least the six (6) months preceding the
filing of the Petition, [Father] withheld his
presence, love, and care from the child.
c. The Court specifically reviewed the Supreme
Court of North Carolina’s ruling in 372 N.C.
388 In the Matter of E.H.P. and K.L.P. filed
August 16, 2019 in which a termination of
parental rights was upheld even with a no-
contact order actually in place.
The trial court ultimately concluded:
3. That by clear, cogent and convincing evidence
[Father]: has willfully abandoned the juvenile for at least
six consecutive months immediately preceding the filing of
the petition as set forth in § 7B–1111[(a)](7).
Father’s conduct met the statutory standard for willful abandonment under North
Carolina General Statute § 7B-1111(a)(7), and these conclusions were not made in
error.
By Father’s own admission, he had no contact with Sidney during the six
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IN RE: S.I.D.-M.
Opinion of the Court
months preceding the filing of the Petition. Father made no effort to inquire about
Sidney’s welfare, either before or after the Petition was filed, even though he had
current contact information, and he was not blocked from communicating with
Mother. It is unfortunate he did not read the Order Suspending Visitation well
enough to realize it was not a “no[-]contact” order particularly because the order set
forth what he needed to do to resume visitation. And although the trial court must
consider Father’s conduct during the six months preceding the filing of the petition
determinative, “the trial court may consider a parent’s conduct outside the six-month
window in evaluating a parent’s credibility and intentions.” In re N.D.A., 373 N.C.
at 77, 833 S.E.2d at 773. During a time period of over thirty months from August
2019, when Father was released from the hospital, until the TPR hearing in February
2022, Father’s sole attempts at contact or communication with Mother or Sidney were
the one phone call to Mother in August 2019 and the July 2020 email from his
attorney to Mother’s attorney.
Father’s admission to not fully reading the Order Suspending Visitation cuts
both ways. The trial court could have believed Father acted reasonably when he did
not seek to see Sidney based upon his erroneous belief he was subject to a no-contact
order. Father argues the trial court should have interpreted the evidence in this
manner, and our dissenting colleague would agree. Or the trial court could infer–and
did infer–Father was not sufficiently motivated or interested in resuming contact
with Sidney even to take a few moments to read the Order Suspending Visitation
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IN RE: S.I.D.-M.
Opinion of the Court
carefully, even though he admittedly knew the order addressed custody of his child.
On the one occasion Father contacted Mother in August 2019, Mother told Father
that he simply needed to contact the county official managing Sidney’s case and show
the trial court that he had adequately recovered from his mental health crisis and
then Father would be able to resume visits with Sidney. Mother’s comments to
Father were consistent with the provisions of the order, which noted that “[t]he
Cabarrus County Department of Social Services [“DSS”] has opened an investigation
and has been unable to locate the [Father]; . . . [Father]’s mental stability is in
question and it would be contrary to the minor child’s best interest for him to have
visitation at this time[;]” and “visitation with the minor child [Sidney] is suspended
until such time as he presents himself to the Court and shows just cause as to why
his visits should be reinstated.” But Father did not contact Cabarrus County DSS
and did not present himself to the trial court to demonstrate he had recovered
sufficiently to resume visitation, although he testified that he had stopped seeing his
therapist and returned to work in March 2020–four months prior to the filing of the
Petition. Father also testified he did not attempt to file a motion to resume visitation
with Sidney with the trial court until September 2020, several months after the
Petition was filed.
The trial court’s findings were sufficient to support the conclusion that Father
willfully abandoned Sidney. The trial court’s findings addressed Father’s mental
health crisis, his contact with Mother in August 2019, his receipt of the Order
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IN RE: S.I.D.-M.
Opinion of the Court
Suspending Visitation, his failure to attempt to contact Mother again, and his failure
to take any other action to resume visitation or even to send a card or a gift to the
child, even though he was not prohibited from doing so.
We conclude the trial court’s findings support its conclusion of abandonment
as defined by § 7B-1111(a)(7). See In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at
858. Because Father did not challenge the dispositional portion of the TPR hearing,
we do not review the trial court’s dispositional findings and conclusions.
IV. Conclusion
The trial court’s adjudicatory findings are supported by clear, cogent, and
convincing evidence and were not made in error. These findings support the trial
court’s conclusions of law. The trial court’s termination of Father’s parental rights is
affirmed.
AFFIRMED.
Judge ARROWOOD concurs.
Judge TYSON concurs in part and dissents in part.
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No. COA22-503 – In re: S.I.D.-M.
TYSON, Judge, concurring in part and dissenting in part.
I concur to allow Father’s Petition for Writ of Certiorari. See N.C. R. App. P.
21. “We have also held that where a [respondent] has lost his right of appeal through
no fault of his own, but rather as a result of the actions of counsel, failure to issue a
writ of certiorari would be manifestly unjust.” State v. Gardner, 225 N.C. App. 161,
165, 736 S.E.2d 826, 829 (2013). Father’s appeal is properly before us.
In this private termination of parental rights petition (“TPR”) brought by
Mother, I also agree the trial court correctly found and concluded Mother’s evidence
did not support her asserted TPR grounds alleging Father had failed to pay child
support or that Father was incapable of providing for the care and supervision of his
daughter, Sidney, to terminate Father’s parental rights.
The sole basis the trial court found to support Mother’s petition to terminate
Father’s parental rights was “[p]ursuant to [N.C. Gen. Stat. §] 7B-1111(a)(7), [on the
grounds Father] ha[d] willfully abandoned [Sidney] for at least six consecutive
months immediately preceding the filing of th[e] petition based upon” the trial court’s
findings and Father’s statements at the TPR hearing and also because “[f]or at least
the six (6) months preceding the filing of the Petition, [Father] withheld his presence,
love, and care from the child.”
Father challenges the adjudication of Sidney as being “abandoned” and argues
“[t]he trial court reversibly erred in concluding the existence of the ground of
abandonment to terminate [Father]’s parental rights because the evidence failed to
IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
support the findings of fact and the findings of fact failed to support this conclusion
of law.” I agree with Father that Mother has failed to carry her burden and to prove
Father’s abandonment by clear, cogent, and convincing evidence. I respectfully
dissent.
I. Standard of Review
Mother, as petitioner, carries and maintains the burden of proof. “The
standard of review in termination of parental rights cases is whether the findings of
fact are supported by clear, cogent and convincing evidence and whether these
findings, in turn, support the conclusions of law.” In re C.M.P., 254 N.C. App. 647,
654, 803 S.E.2d 853, 858 (2017) (citations and quotation marks omitted). The trial
court’s conclusions of law are reviewed de novo on appeal. Id. (citation omitted).
Our Supreme Court has recently held:
While the question of willful intent is a factual one for the
trial court to decide based on the evidence presented, and
while the trial court’s factual determination is owed
deference, it remains [the appellate court’s] responsibility
as the reviewing court to examine whether the evidence in
the case supports the trial court’s findings and whether, as
a legal matter, the trial court’s findings support its
conclusions of law.
In re B.R.L., 379 N.C. 15, 18, 863 S.E.2d 763, 767 (2021) (citations omitted).
II. Analysis
While Father was undergoing medical treatment, Mother sought and secured
an ex parte custody order suspending Father’s visitation with his daughter on 13
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IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
August 2019. Mother also filed a motion to modify visitation. The trial court entered
a written order on 28 August 2019 extending the ex parte order and suspended
Father’s visitation (the “Order Suspending Visitation”) until Father “presents himself
to the Court and shows just cause as to why his visits should be reinstated.” Less
than a year later and after Father had twice contacted Mother to resume visitation
with his daughter, Mother filed a “Petition for Termination of Parental Rights” on 24
July 2020.
Father’s answer was filed 10 September 2020. He admitted the allegations
regarding the parties’ and child’s residences, the parties’ status as parents of the
child, the prior custody action, and Mother’s ex parte petition pre-emptively seeking
the Order Suspending Visitation.
The record shows the court appointed a Guardian ad litem (“GAL”) on 15
September 2020, and the scheduled hearing was continued until 27 October 2020.
During this time, and while the Order Suspending Visitation prevented visitation
between Father and his daughter, Sidney, the Termination of Parental Rights
hearing was inexplicitly and repeatedly continued before ultimately being held on 21
February 2022. The order from the hearing was entered 18 March 2022.
Mother’s pre-emptive ex parte Order has succeeded in denying Father of
visitation with Sidney for nearly four (4) years. Mother testified her husband,
Sidney’s step-father, plans to adopt Sidney “immediately” if and after Father’s
parental rights were terminated. (“Yes, we’d like to do [an adoption] immediately.”).
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IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
Father’s persistence to maintain his parental rights in the face of Mother’s repeated
efforts to exclude him from his daughter’s life clearly demonstrates he did not and
has no intent to willfully “abandon” her. In re B.R.L., 379 N.C. at 18, 863 S.E.2d at
767. The majority’s opinion asserts “the Petition was filed 24 July 2020, [and] the
relevant six-month period for purposes of North Carolina General Statute § 7B-
1111(a)(7) was 24 January 2020 to 24 July 2020. See N.C. Gen. Stat. § 7B-1111(a)(7).”
The record is clear Mother did everything she could to deny Father of any
contact with his daughter and calculated to take deliberate advantage of Father’s
mental illness. Immediately after Father’s release, undisputed evidence shows and
the trial court found Father directly contacted Mother to resume his visitation.
Mother testified and admitted Father had communicated with her regarding
resuming visitation and she had “let him know that there was an order in place and
he had to contact the [DSS] county case worker that was assigned to the case and
that they were trying to locate him.”
Mother also testified and admitted she had “told [Father] that he would have
to go through the county case worker and through court to file the motion” to resume
his visitation with Sidney. Mother also admitted she knew or was told about the July
2020 email from Father’s attorney, the email said Father was “looking to resume
visits,” and the email was received prior to her filing the Petition.
Father correctly argues finding of fact 14 is “erroneous as a matter of law
because it fails to include the reason for his attorney’s July 2020 [email],” his
4
IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
retaining of counsel to resume visitation, and the reason for the email asserting
Father wanted to resume visits, “negated the TPR ground of abandonment” under
the statute. Mother expressly admitted during cross-examination by Father’s
attorney that she had received written notice from Father or his attorney in July
2020, expressing Father’s desire to resume visitation with Sidney. Mother’s response
after receiving the email was to file the private TPR Petition before us.
In addition, both parties reference a motion Father made in September 2020
to attempt to resume visitation. The trial court’s TPR order also expressly references
this motion.
Here, Mother’s evidence does not support the trial court’s finding that Father
“willfully abandoned” Sidney during the relevant six-month period. In re B.R.L., 379
N.C. at 18, 863 S.E.2d at 767. “Abandonment requires a wil[l]ful intent to escape
parental responsibility and conduct in effectuation of such intent.” Pratt v. Bishop,
257 N.C. 486, 502, 126 S.E.2d 597, 608 (1962) (citation omitted). “It has been held
that if a parent withholds his presence, his love, his care, the opportunity to display
filial affection, and wil[l]fully neglects to lend support and maintenance, such parent
relinquishes all parental claims and abandons the child.” Id. at 501, 126 S.E.2d at
608 (citation omitted) (emphasis supplied).
“To find that a parent has willfully abandoned his or her child, the trial court
must ‘find evidence that the parent deliberately eschewed his or her parental
responsibilities in their entirety.” In re A.L.L., 376 N.C. 99, 110, 852 S.E.2d 1 (2020)
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IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
(emphasis supplied) (quoting In re E.B., 375 N.C. 310, 318, 847 S.E.2d 666, 673
(2020)). The trial court’s rejection of Mother’s allegations that Father had failed to
pay child support or that Father was incapable of providing for the care and
supervision of his daughter, Sidney, also supports Father’s claim he had not willfully
“eschewed his . . . parental responsibilities in their entirety.” Id. (emphasis supplied).
Our Supreme Court has held: “Abandonment implies conduct on the part of
the parent which manifests a willful determination to forego all parental duties and
relinquish all parental claims to the child.” In re Young, 346 N.C. 244, 251, 485 S.E.2d
612, 617 (1997) (quoting In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d
511, 514 (1986)). This Court has held: “[i]n this context, the word ‘willful’
encompasses more than an intention to do a thing; there must also be purpose and
deliberation.” In re A.K.D., 227 N.C. App. 58, 61, 745 S.E.2d 7, 9 (2013) (quotation
marks omitted)(emphasis supplied).
The trial court’s conclusion to terminate Father’s parental rights is not
supported by its findings of fact of either “willful” and “purpose and deliberation” of
Father’s intent to abandon Sidney. Id.Under the statute, “the trial court may consider a parent’s conduct outside the
six-month window in evaluating a parent’s credibility and intentions, [but] the
‘determinative’ period for adjudicating willful abandonment is the six consecutive
months preceding the filing of the petition.” In re N.D.A., 373 N.C. 71, 77, 833 S.E.2d
768, 773 (2019) (quotation marks omitted) (quoting In re D.E.M., 257 N.C. App. 618,
6
IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
619, 810 S.E.2d 375, 378 (2018).
Father’s arguments have merit. Mother failed to carry her burden to produce
clear, cogent, and convincing evidence to support the trial court’s findings. As such
on de novo review, the trial court’s conclusions of law are unsupported by the findings
of fact and are erroneous and prejudicial. In re B.R.L., 379 N.C. at 18, 863 S.E.2d at
767.
Father also disputes findings of fact 12 and 21 and argues “[t]hese two findings
are contradicted by finding of fact # 14[.]” Finding of fact 12 states: “[Father] did not
make any further efforts to contact [Mother].” Finding of fact 21 states: “Other than
the one phone call to [Mother] in August 2019, [Father] did not attempt to contact
[Mother] to set up a visit or to check on the child.” As noted above, the undisputed
evidence and testimony clearly shows otherwise.
The majority’s assertion “the trial court must be sufficiently satisfied with the
evidence to be able to find the facts by clear, cogent, and convincing evidence”
misstates this Court’s standard of review by summarily affirming its conclusion to
terminate Father’s parental rights for abandonment of his daughter. That conclusion
is not based upon clear, cogent, and convincing evidence and findings. See Id. In
light of Mothers failure to carry her burden, Father’s constitutionally-protected
parental rights prevail and must be preserved. Id.
III. Conclusion
I concur to allow Father’s PWC and to affirm the trial court’s conclusions that
7
IN RE: S.I.D.-M.
TYSON, J., concurring in part and dissenting in part
Father supported his daughter and of him being a fit and proper parent to resume
visitation with his child.
Mother’s undisputed motives, admitted actions, and her failure to carry her
burden under the statute, considered together with Father’s undisputed efforts to
make repeated contacts, and retaining counsel to preserve his parental rights,
compels reversal. The trial court’s adjudicatory findings are not supported by clear,
cogent, and convincing evidence and its conclusions are affected by error. Id. These
findings do not support the trial court’s conclusions of law to terminate Father’s
constitutionally-protected parental rights based solely on Father’s abandonment.
The trial court’s TPR order, based solely on the grounds of Father’s “willful
abandonment”, is affected by error and is properly reversed. Id. I respectfully
dissent.
8