In re: A.N.B. ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-934
Filed 15 August 2023
Craven County, No. 21 JT 71
IN THE MATTER OF:
A.N.B.
Appeal by respondent-father from order entered 5 August 2022 by Judge Paul
J. Delamar in District Court, Craven County. Heard in the Court of Appeals 17 July
2023.
W. Michael Spivey for appellant-respondent-father.
Peacock Family Law, by Carolyn T. Peacock, for appellee-petitioner-mother.
No brief for appellee guardian ad litem.
STROUD, Chief Judge.
Respondent-father appeals from an order terminating his parental rights to
his minor child, asserting the trial court erred by failing to appoint an attorney for
the minor child and failing to make sufficient findings of fact to support its
conclusions. We decline to review Respondent-father’s first argument because he
failed to preserve it by raising it before the trial court. Further, because the trial
court’s findings of fact were sufficient to support its conclusions of law, we affirm.
I. Background
IN RE: A.N.B.
Opinion of the Court
Alice1 was born to Respondent-father and Petitioner-mother in January 2015
while Father and Mother were both residents of New Hanover County. Father and
Mother were never married. Shortly after Alice’s birth, Mother started a Chapter 50
custody proceeding in New Hanover County.2 In or about October 2015, the District
Court, New Hanover County, entered a consent order (“2015 Custody Order”)
granting Mother primary physical custody of Alice. Mother and Father were granted
joint legal custody of Alice and Father was granted visitation.3
About two years later, in December 2017, Father “was arrested for Driving
While Impaired and Misdemeanor Child Abuse.” Father and his brother were found
passed out from a heroin overdose in a car, stopped at a red light, with Alice and her
half-sibling in the back seat without any child seats or restraints. Bystanders called
emergency services to assist and emergency responders had to break the window of
Father’s vehicle to help Father, his brother, and the two children. Father and his
brother were revived with Narcan and survived the incident. The New Hanover
County Department of Social Services (“DSS”) contacted Mother and Mother was
reunited with Alice at the scene of the incident. Because of Father’s overdose, DSS
later substantiated neglect against Father in February 2018 and sent Mother a letter
1 We use the pseudonym for the juvenile stipulated to by the parties.
2 The record indicates Mother initiated the custody proceeding, but the record is unclear on when
Mother filed a complaint in the custody action.
3 The date on the file stamp of the 2015 Custody Order is illegible but it was signed 7 October 2015.
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Opinion of the Court
stating “[t]here was sufficient information found during the Investigative Assessment
[into the December 2017 incident] to Substantiate . . . [n]eglect in the form of
Injurious Environment against [Father].” DSS recommended all contact between
Father and Alice be supervised until Father could make “significant progress” on his
sobriety and left supervision arrangements to Mother’s discretion.
Mother then filed a motion in District Court, New Hanover County, to modify
the 2015 Custody Order. Father did not appear at the May 2018 hearing on the
motion to modify because he was incarcerated, and although he “was provided with
information on how to writ himself to court” for the modification hearing, he had
“chosen not to do so.” The district court entered an order on 14 May 2018 (“2018
Custody Order”) granting Mother’s motion and awarding Mother sole legal and
physical custody of Alice. Mother also got married in May 2018.
In June 2018, Father filed a Rule 60 motion for relief from the 2018 Custody
Order. Father’s motion was heard in December 2018. In January 2019,4 the district
court entered an order granting Father’s motion, determining it was in Alice’s “best
interest . . . for each parent to participate in custody hearings,” and ordering a new
trial.
On 29 August 2019, the district court entered a consent order allowing Alice’s
paternal Grandparents to intervene in the custody proceeding. A subsequent consent
4 The file stamp on this order is illegible, but the order was signed 4 January 2019.
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Opinion of the Court
order regarding custody was filed 11 March 2020 (“2020 Custody Order”). The 2020
Custody Order found:
22. [Mother] is fit and proper to exercise
temporary sole custody.
23. [Father] is not fit and proper to exercise
secondary custody by visitation as [Father] has issues
regarding his sobriety, recent relapse, and pending
criminal charges.
24. The [paternal grandparents] are fit and
proper persons to have visitation with [Alice] and it is in
the best interests and welfare of [Alice] that [her paternal
grandparents] be granted liberal visitation with [Alice].
Mother was granted sole custody of Alice and Grandparents were granted visitation.
Father was “restricted from all visitations set forth [in the 2020 Custody Order],
unless the parties mutually agree[d] otherwise.” Mother, Father, and Grandparents
all consented to entry of the 2020 Custody Order. Later, in November 2020, venue
for the Chapter 50 custody proceeding was transferred to Craven County. Due to
restrictions imposed because of the COVID-19 pandemic, Grandparents did not start
their visitation with Alice until December 2020.
On 6 July 2021, Mother filed a petition in Craven County to terminate Father’s
parental rights (“Petition”). Mother alleged two grounds for termination of Father’s
parental rights: (1) Father willfully abandoned Alice for the six months preceding
the Petition, and (2) Father had “willfully failed and refused to pay child support” as
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IN RE: A.N.B.
Opinion of the Court
ordered by the District Court, New Hanover County, in a prior child support action.5
Father filed a response on 14 September 2021, generally denying the allegations of
the Petition.
On 19 November 2021, the trial court entered a pre-trial order concluding an
appointment of a guardian ad litem (“GAL”) was appropriate and appointing the
public defender’s office as Alice’s GAL. Pursuant to local rules the public defender’s
office delegated the GAL duties to Mr. Barnhill, a licensed attorney. The trial court
calendared Mother’s Petition for hearing on 13 July 2022.
Mr. Barnhill completed an investigation and prepared a GAL court report in
May 2022.6 The GAL court report found Father had never sought review of the 2020
Custody Order, although the 2020 Custody Order was intended to be temporary. The
GAL court report also found “Respondent Father admitted last seeing [Alice] on . . .
December 21, 2017, when [Respondent Father] as driver, along with his brother,
passed out in traffic while transporting his two children.” The GAL court report found
Alice had lived with Mother and her husband since Alice was three months old, Alice
had “a loving and bonded relationship” with her younger half-sibling born of Mother
and her husband, and it was Mother’s husband’s intention to adopt Alice and raise
her as his own.
5 Documents from the child support proceeding were not included in the record on appeal.
6 The GAL court report is not file stamped but was signed 12 May 2022.
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IN RE: A.N.B.
Opinion of the Court
The GAL court report initially noted “that the . . . issue of grounds for
termination [of Father’s parental rights] [was] beyond the scope of [Mr. Barnhill’s]
task. If not, Respondent Father’s self-inflicted absence from [Alice] for five years
serves as a substantial ground.” The GAL court report also found, consistent with
other evidence in the record, that Father had in fact paid child support but due to a
computer error by Child Support Enforcement, Mother had not received these
payments. Ultimately, the GAL court report recommended termination of Father’s
parental rights due to his absence and because Mother’s husband was about to be
deployed overseas for an extended period for military service, and “[h]e should be able
to take the family he has committed to without the interference of someone whose
right to do so is based entirely on biology.”
Mother’s Petition was heard 13 July 2022 and 15 July 2022. The hearing was
bifurcated into adjudication and disposition phases; the parties first addressed the
grounds for termination of Father’s parental rights then addressed Alice’s best
interests. During the adjudicatory phase, Mother testified that she had never been
served with any notices or documents requesting a review of the 2020 Custody Order
granting her sole custody and denying Father visitation. Mother also testified that
Father had never tried to call her, text her, or email her regarding Alice, and Father
had never sent Alice any gifts. Mother presented as evidence a timeline from May
2020 to July 2022, including her records of all communications with Father. The
timeline contains three communications preceding the filing of the Petition:
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IN RE: A.N.B.
Opinion of the Court
• 25 June 2021: Mother asked for Father’s phone number
from Alice’s Grandparents. Mother texted Father and they
met face-to-face over Zoom. Mother asked Father whether
he would consent to Mother’s husband adopting Alice and
Father refused.
• 28 June 2021: Mother texted Father after Father asked
for contact with Mother through Alice’s paternal
grandmother. Father asked Mother whether he needed to
“go through the courts to see [Alice] or if he would work
with” Mother. Mother told Father they would discuss
visitation more on a scheduled Zoom call on 1 July 2021.
• 1 July 2021: Mother, her husband, and Father met on
Zoom. The parties agreed that Mother and Father would
stay in contact so that Father could show he had improved
his life since the 2017 incident. The parties created a group
text chat with Mother, her husband, and Father to keep in
contact. Mother then sent a photo to Father through the
group chat of Alice’s “responsibility chart” and Father
responded with a single message. The record does not show
the content of this message.
Mother then filed the Petition after these communications transpired. Mother
testified that these messages were the only communications between her and Father
in the six months preceding her filing of the Petition. Mother then testified regarding
post-Petition communications between her and Father. There were few
communications between the parties, and Father missed the only two Zoom calls the
parties scheduled.
Father’s attorney cross-examined Mother and called Alice’s Grandparents to
testify. The testimony elicited at the termination hearing by Father’s attorney
largely addressed Grandparents’ visitation with Alice, which is not relevant to this
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Opinion of the Court
appeal.7 Relevant to the grounds for termination, Father’s attorney attempted to
show that Father tried to visit with Alice but Mother had obstructed Father’s
attempts to communicate with Alice. Grandfather testified about a meeting at
Mother’s attorney’s office where Mother set rules for visitation, which Grandfather
recalled as:
Rule number one, we could not speak [Father’s] name when
we came to her house. His name was not to be spoken.
Rule number two, no one could have [Mother’s] phone
number, not even myself. The only one that could have the
phone number was [Grandmother]. And the only one that
could call [Mother] was [Grandmother].
Grandfather also testified about attempts Father made to set up visitation
with Alice. Grandfather testified Father “told [Grandfather] that he had called
[Mother] on several occasions and asked to speak with [Alice] or set up some kind of
time” for visitation, but Mother did not allow visitation. Grandfather testified these
requests for visitation would have occurred “around 2021” because the calls occurred
after the Grandparents had started visitation with Alice in December 2020, but
Grandfather was not aware of any specific dates that Father tried to call Mother to
coordinate a visit.
Grandfather also testified Father had “given [Grandparents] a lot of money” to
buy Christmas gifts, clothes, and toys for Alice. Grandfather estimated that about a
7 During the hearing, the trial court had to repeatedly redirect the examination and witnesses’
testimony back toward the grounds for termination of Father’s parental rights, and away from
visitation issues between the Grandparents and Alice after entry of the 2020 Custody Order.
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IN RE: A.N.B.
Opinion of the Court
third of Alice’s gifts were generally paid for by Father and that Father had bought
specific gifts for Grandfather to take and give to Alice. However, Grandfather
testified he never told Mother that Father was paying for the gifts, and the only time
Grandfather told Mother that Father had given Grandparents money for gifts was in
June 2022, after the Petition was filed. There was no documentation admitted into
evidence to prove any gifts had come from Father. Grandfather testified he did not
want to identify any gifts as coming from Father because he thought Mother would
stop visitation. Grandfather also testified no party attempted to file any motion to
modify the 2020 Custody Order on the advice of Father’s attorney because Father
was waiting to resolve a pending criminal charge before seeking visitation. At the
termination hearing, the trial court also stated it had reviewed the court file and
confirmed no motions had been filed by any party to modify the 2020 Custody Order.
Father also testified he had been trying to visit with Alice since 2017, but
Mother would not let Father directly speak with herself or Alice; Mother directed
Father to contact Mother’s attorney. However, Father did not identify any specific
attempts he made to begin visiting with Alice. Father testified that until July 2021
he simply paid his child support and that his attempts to begin visiting Alice were
made between 2018 and entry of the 2020 Custody Order.
On cross-examination, Father again confirmed that he had no documentation
to show he requested visitation between entry of the 2020 Consent Order and the first
Zoom call on 25 June 2021. Between March 2020 and June 2021, Father provided no
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IN RE: A.N.B.
Opinion of the Court
information to Mother, did not call Mother to ask for visitation, did not send emails,
did not send mail, and generally made no efforts to contact Mother to see Alice.
Alice’s Grandmother also testified Mother tried to prevent Father from visiting
Alice. Grandmother first testified Mother established rules to limit references to
Father during the Grandparents’ visitation; Grandmother testified that she was not
allowed to say Father’s name, share Mother’s new phone number, or share Mother’s
address. Although Father asked Grandmother for Mother’s phone number and
address, Grandmother did not share that information with Father. Grandmother
testified Father did not have contact information for Mother until 25 June 2021, when
Mother reached out for Father’s contact information through the Grandparents to
contact Father and ask for his consent to Alice’s adoption.
Grandmother also testified Father bought gifts and gave the Grandparents
money to buy gifts for Alice from 2020 through July 2021. However, Grandmother
testified she had no record of any attempts by Father to contact Mother to visit Alice.
Grandmother additionally testified that, to her knowledge, Father did not seek legal
counsel in Craven County until after the Petition was filed.
In rebuttal, Mother testified that she did not limit Father’s access to Alice. As
to Mother’s phone number, Mother testified “the phone number was directed to
[Grandfather]. I told [Grandmother] that I would like to have communication solely
through her because of previous harassment from [Grandfather], but I did not say
that she could not give my phone number to [Father].” Mother also testified that she
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IN RE: A.N.B.
Opinion of the Court
and Grandparents did not speak about sharing her physical address. As to not
referring to Father during the Grandparents’ visitation with Alice, Mother testified
“the boundary was to please not discuss or bring up [Father] during their visits
because [Alice] had been so traumatized. And [Alice] -- the visits [were] for
[Grandparents] to be with [Alice]. To be grandparents with her and just spend time
with her as her grandparents.”
At the close of the adjudicatory phase of the termination hearing, the trial court
found “by clear, cogent, and convincing evidence that [Mother] met her burden and
proved grounds” to terminate Father’s parental rights for willfully abandoning Alice
because “there was a period of six months . . . preceding the filing of the petition
during which [Father] made no efforts to have visitation with” Alice.
The trial court then moved on to the dispositional phase. Mr. Barnhill testified
during the dispositional phase of the hearing. However, because Father does not
challenge the dispositional stage of the hearing on appeal, we do not discuss the
specifics of Mr. Barnhill’s testimony. For purposes of this appeal we simply note that
Father did not object to Mr. Barnhill’s role as GAL for Alice or raise any question
regarding any need for separate legal representation for Alice.
On 5 August 2022, the trial court entered a written order (“Termination
Order”) finding grounds existed to terminate Father’s parental rights:
43. The Court makes the following additional Findings
of Fact to support the grounds of abandonment by clear
cogent and convincing evidence in this matter:
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Opinion of the Court
a. The Respondent Father has had the ability to
call and text [Mother] regarding [Alice] since March
11, 2020.
b. The Respondent Father made no efforts to call
[Mother] to set up visitation with [Alice] from March
11, 2020 until the Petition was filed in this matter.
c. The Respondent Father made no efforts to
text [Mother] to set up visitation with [Alice] from
March 11, 2020 until the filing of the Petition in this
matter.
d. The Respondent Father did not send any text
messages to [Mother] from March 11, 2020 until the
filing of the Petition in this matter to make inquiries
about [Alice]’s health, education or welfare.
e. The Respondent Father did not email
[Mother] and request visitation at any time from
March 11, 2020 until the filing of the Petition in this
matter.
f. The Respondent Father did not email
[Mother] and make inquiries as to the health,
education and welfare of [Alice] from March 11, 2020
until the filing of the Petition in this matter.
g. The Respondent Father did not send any mail
to [Mother] from March 11, 2020 until the filing of
the Petition in this matter requesting visitation.
h. The Respondent Father did not send any mail
to [Mother] inquiring about the health, education or
welfare of [Alice] from March 11, 2020 until the
filing of the Petition in this matter.
i. The Respondent Father was represented by
counsel from March 11, 2020 through November 17,
2020. The Respondent Father did not file any
pleadings with the Court requesting a review of the
Temporary Order entered on March 11, 2020, by
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Opinion of the Court
consent which suspended all of the Respondent
Father’s visitation with [Alice].
j. After the case was transferred from New
Hanover County to Craven County, the Respondent
Father did not file any requests for review, either
pro se or with the assistance of an attorney,
requesting a review and/or visitation with [Alice]
from November 17, 2020 through the filing of the
Petition in this matter.
k. [Mother] has had absolutely no contact with
the Respondent Father since March 11, 2020, until
she initiated a phone call with the [Father] on June
24, 2021, requesting the [Father] sign a step-parent
Consent to Adopt.
l. The Respondent Father’s parents have
regularly visited with [Alice] since December 2020.
They have been allowed by [Mother] to bring the
Respondent Father’s other child to the visitations in
[Mother]’s home. At no time did the Respondent
Father’s parents request [Mother] to allow the
Respondent Father to have contact or visitation with
[Alice] from December 2020 until the filing of the
Petition in this matter.
m. The Respondent Father’s parents brought
gifts to [Mother] for [Alice] for holidays and
birthdays. At no time did any of the gifts have any
cards or tags signifying that the gifts were, in fact,
from the Respondent Father. Instead, the gifts were
offered to [Alice] as gifts from the paternal
grandparents. However, at trial the [Father]
testified that he contributed to the payment of some
of these gifts, although no other evidence was offered
to support this testimony, such as a card or tag on
any of the gifts signifying that the gift was from
anyone other than the [Grandparents].
n. The Respondent Father has provided no gifts,
cards or letters of endearment for [Alice] to [Mother]
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Opinion of the Court
from March 11, 2020, until the filing of the Petition
in this matter.
o. The Respondent Father has made no efforts of
any type, either direct or indirect, to have any
contact with [Alice] from March 11, 2020 until the
filing of the Petition in this matter.
p. The Respondent Father has sent no cards,
gifts or any other tokens of affection for [Alice] from
March 11, 2020 to the filing of the Petition in this
matter.
q. The Respondent Father’s last in-person
contact with [Alice] was December 2017.
r. The Respondent Father was aware of
[Mother]’s cell phone number, email and physical
address and failed [to] act as a normal parent would
in requesting contact or visitation with [Alice] at any
time from March 11, 2020 until the filing of the
Petition in this matter.
(Formatting altered.) The trial court then concluded it was in Alice’s best interests
to terminate Father’s parental rights for “willfully abandon[ing] the minor child for
at least six months preceding the filing of the Petition,” and ordered Father’s parental
rights terminated as to Alice. Father appealed 26 August 2022.
On 8 November 2022, after filing his notice of appeal, Father filed a post-trial
“Motion for Relief from Judgment Pursuant to Rule 60(b)” (“Rule 60 motion”).
(Capitalization altered.) Father’s Rule 60 motion was heard 8 December 2022. The
Rule 60 motion and hearing are discussed in greater detail below when discussing
Father’s arguments based on this motion.
II. Jurisdiction
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Opinion of the Court
Father filed a petition for writ of certiorari (“PWC”) in this Court
acknowledging Father’s notice of appeal was not served on Mr. Barnhill, Alice’s
appointed GAL. Father’s PWC is verified, and Father asserts his appellate counsel
discussed the appeal with Mr. Barnhill, and Mr. Barnhill was present at the hearing
on Father’s Rule 60 motion. Also attached to the PWC is an affidavit by Father’s trial
counsel attesting: (1) Father’s trial counsel notified Mr. Barnhill that Father had
appealed the Termination Order; (2) trial counsel was informed by Father’s appellate
counsel that Father’s appellate counsel discussed Father’s appeal with Mr. Barnhill;
and (3) Mr. Barnhill was aware of and present for the hearing on Father’s Rule 60
motion related to the appeal while the appeal was pending before this Court.
Father asserts failing to serve the notice of appeal on Mr. Barnhill is a non-
jurisdictional defect, and Mr. Barnhill also waived any error in service by attending
the Rule 60 hearing. Thus, Father filed his PWC as an alternative ground for review
in case this Court deems the potential lack of service to the GAL as a jurisdictional
issue. Neither Mr. Barnhill nor Mother filed a response to Father’s PWC. Nor did
Mr. Barnhill file an appellee brief.
Rule of Appellate Procedure 3.1 governs service of Father’s notice of appeal and
states in relevant part:
Any party entitled to an appeal under N.C.G.S. § 7B-
1001(a) may take appeal by filing notice of appeal with the
clerk of superior court in the time and manner set out in
N.C.G.S. § 7B-1001(b) and (c) and by serving copies of the
notice of appeal on all other parties.
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N.C. R. App. P. 3.1(b) (emphasis added).
We cannot locate a published case from this Court interpreting the service
provision of Rule 3.1(b). However, there is a line of cases from our appellate courts
holding a party’s failure to serve their notice of appeal on all parties in technical
compliance with Rule of Appellate Procedure 3 is a non-jurisdictional defect, and the
party’s noncompliance with the Rules of Appellate Procedure must instead be
assessed for whether the party’s noncompliance is a “substantial or gross violation of
the appellate rules.” MNC Holdings, LLC v. Town of Matthews, 223 N.C. App. 442,
445-47, 735 S.E.2d 364, 366-67 (2012) (summarizing the line of cases leading to the
conclusion failure to serve notice of appeal under Rule 3 is a non-jurisdictional defect).
We also note that the same rule has been applied in the criminal context, under Rule
of Appellate Procedure 4. In State v. Golder, this Court saw no need to grant a
defendant’s petition for writ of certiorari because “[i]t is the filing of the notice of
appeal that confers jurisdiction upon this Court, not the service of the notice of
appeal.” State v. Golder, 257 N.C. App. 803, 804, 809 S.E.2d 502, 504 (2018), aff’d as
modified, 374 N.C. 238, 839 S.E.2d 782 (2020) (emphasis in original). In coming to
this conclusion, this Court cited the same line of cases discussed in MNC Holdings.
See id. (citing Lee v. Winget Road, LLC, 204 N.C. App. 96, 100, 693 S.E.2d 684, 688
(2010); Hale v. Afro-American Arts Intern., Inc., 335 N.C. 231, 232, 436 S.E.2d 588,
589 (1993)).
Mr. Barnhill appears to have actual notice of Father’s appeal; Mr. Barnhill has
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Opinion of the Court
not raised any issue before this Court regarding service of Father’s notice of appeal
in an appellee brief, response to Father’s PWC, or motion to dismiss the appeal; and
thus there is no indication in the record before us that any party would be prejudiced
should we hear Father’s appeal. Consistent with this Court’s discussion in MNC
Holdings regarding service under Rule of Appellate Procedure 3, and this Court’s
adoption of the same rule in Golder as to Rule of Appellate Procedure 4, we see no
reason why the same standard should not apply under Rule of Appellate Procedure
3.1. We therefore conclude “that any error in service made by [Father] is non-
jurisdictional and is not a substantial or gross violation of the appellate rules.” MNC
Holdings, 223 N.C. App. at 447, 735 S.E.2d at 367. We deny Father’s PWC because
it is superfluous.
III. Rule 60 Motion
Father first directs us to his Rule 60 motion. Even if we generously assume
Father properly made a Rule 60 motion regarding violations of North Carolina
General Statute § 7B-1108, he did not preserve this argument due to his failure to
object at trial regarding Mr. Barnhill’s role as a GAL or the fact that Alice did not
have an attorney. Indeed, Mr. Barnhill was present at the hearing on Father’s motion
but he did not ask to be heard and neither party asked him to testify or make a
statement. “In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely . . . objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
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not apparent from the context.” N.C. R. App. P. 10(a)(1). This Court has specifically
held violations of North Carolina General Statute § 7B-1108 are not automatically
preserved for appellate review. See In re A.D.N., 231 N.C. App. 54, 65-66, 752 S.E.2d
201, 208-09 (2013).
Father alternatively requests we involve North Carolina Rule of Appellate
Procedure 2 to hear his arguments regarding his Rule 60 motion and the trial court’s
noncompliance with North Carolina General Statute § 7B-1108. Rule of Appellate
Procedure 2 states that “[t]o prevent manifest injustice to a party . . . either court of
the appellate division may, except as otherwise expressly provided by these rules,
suspend or vary the requirements or provisions of any of” the Rules of Appellate
Procedure. N.C. R. App. P. 2. “Rule 2, however, must be invoked cautiously” and
only in “exceptional circumstances.” Dogwood Development and Management Co.,
LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)
(citation and quotation marks omitted). We conclude no “exceptional circumstances”
exist in this case and decline to invoke Rule 2. Thus, we do not consider Father’s
arguments as to Mr. Barnhill’s role as GAL.
IV. Termination Order
Father next challenges the trial court’s findings of fact in the Termination
Order and also asserts “the trial court erred by failing to make findings resolving
conflicting evidence about facts relevant and material to whether Father willfully
abandoned” Alice. (Capitalization altered.) Father does not challenge the
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Opinion of the Court
dispositional portion of the trial court’s Termination 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) (citation and
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. (citation and quotation marks omitted). “Unchallenged findings
of fact are conclusive on appeal and binding on this Court.” Id. (citation and quotation
marks omitted). The trial court’s conclusions of law are reviewed de novo. Id.B. Abandonment of a Juvenile
The trial court terminated Father’s parental rights under North Carolina
General Statute § 7B-1111(a)(7) for willfully abandoning Alice during the requisite
six-month period preceding the filing of the Petition. 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) (2021).
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Our Supreme Court has further defined willful abandonment:
In the context of a termination of parental rights
proceeding, the ground of “[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 (1997) (quoting In re Adoption of
Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511 (1986)).
Where “a parent withholds [his] presence, [his] love, [his]
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.” Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597,
(1962). Although a parent’s acts and omissions, which are
at times outside of the statutorily provided period, may be
relevant in assessing a parent’s intent and willfulness in
determining the potential existence of the ground of
abandonment, the dispositive time period is the six months
preceding the filing of the petition for termination of
parental rights.
In re A.A., 381 N.C. 325, 335, 873 S.E.2d 496, 505 (2022). “In this context, the word
[‘]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) (citation and quotation marks omitted). Here,
because the Petition was filed 6 July 2021, the relevant six-month period for purposes
of North Carolina General Statute § 7B-1111(a)(7) was 6 January 2021 to 6 July 2021.
See N.C. Gen. Stat. § 7B-1111(a)(7).
1. Finding of Fact 43(m)
Father specifically challenges finding 43(m), asserting the trial court only
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recited Father’s testimony, failed to find the credibility of the parties as to this
finding, and the record evidence was insufficient to support the finding. Finding
43(m) states:
m. The Respondent Father’s parents brought
gifts to [Mother] for [Alice] for holidays and birthdays. At
no time did any of the gifts have any cards or tags
signifying that the gifts were, in fact, from the Respondent
Father. Instead, the gifts were offered to [Alice] as gifts
from the paternal grandparents. However, at trial the
Respondent [Father] testified that he contributed to the
payment of some of these gifts, although no other evidence
was offered to support this testimony, such as a card or tag
on any of the gifts signifying that the gift was from anyone
other than the [Grandparents].
(Emphasis added.) This finding is supported by competent evidence.
Mother, Father, Grandfather, and Grandmother all testified that the
Grandparents brought gifts to Alice. Mother testified Father never sent gifts, but
that the Grandparents “came to our house with gifts, but that’s from -- that’s it.”
Grandfather testified Father provided funds for gifts or would provide a gift for the
Grandparents to take to Alice, but before the Petition he never made Mother aware
any gift was from Father. Grandmother testified the Grandparents brought gifts to
Alice and that Father bought some, but there was no evidence Father had actually
bought the gifts or contributed to the Grandparents’ gifts. Father testified that he
purchased some gifts and gave money to Grandparents for gifts, but did not testify
that he told Mother or Alice the gifts were from him.
Mother, Father, Grandfather, and Grandmother all also testified that the gifts
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were never marked as if Father was sending the gift. Mother testified there was no
indication that gifts were from Father. Grandfather testified that there was no
documentary evidence, such as a tag, card, or bank record that the gift came from
Father. Grandmother testified the gifts were never marked as coming from Father.
Father testified that he never told Mother he had purchased the gifts.
We also note Father does not challenge finding 43(n), which states
“Respondent Father has provided no gifts, cards or letters of endearment for [Alice]
to [Mother] from March 11, 2020 until the filing of the Petition in this matter.” This
unchallenged finding is binding on appeal and establishes that Father never sent
Alice gifts. See In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at 858.
Finding 43(m) is supported by competent evidence. As a whole, the parties
agreed the Grandparents brought gifts to Alice and these gifts were never identified
as having come from Father. The gifts were always treated as if they were given by
the Grandparents. Although a portion of finding 43(m) notes Father’s testimony, the
reference to Father’s testimony is immediately followed by an actual finding of fact
that “no other evidence was offered to support this testimony, such as a card or tag
on any of the gifts signifying that the gift was from anyone other than the
[Grandparents].” See In re A.C., 378 N.C. 377, 384-85, 861 S.E.2d 858, 867-68 (2021)
(discussing findings that make references to testimony and also resolve conflicts in
the evidence). The trial court specifically noted the conflict in the evidence and
resolved the conflict in its finding of fact. Father’s challenge to finding 43(m) is
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overruled.
2. Finding of Fact 43(o)
Father also challenges finding 43(o) as unsupported by competent evidence.
Finding 43(o) states:
o. The Respondent Father has made no efforts of
any type, either direct or indirect, to have any contact with
the minor child from March 11, 2020 until the filing of the
Petition in this matter.
But Father fails to challenge other findings of fact that would result in the same
conclusion of abandonment.
The trial court’s unchallenged findings show that between 11 March 2020 and
6 July 2021, including the determinative period under § 7B-1111(a)(7): (1) Father
had “the ability to call and text” Mother regarding visitation with Alice but chose not
to; (2) Father had the ability to email Mother regarding visitation with Alice but chose
not to; (3) Father had the ability to email Mother about Alice’s “health, education and
welfare” but chose not to; (4) Father did not send physical mail to Mother “inquiring
about the health, education or welfare” of Alice; (5) Father did not attempt to seek
review or modify the 2020 Custody Order or otherwise attempt to begin visitation
with Alice through judicial process; (6) Father had no contact with Mother until
Mother initiated an attempt to seek his consent to a step-parent adoption; (7) the
Grandparents never requested on Father’s behalf that Mother allow Father to visit
or have contact with Alice; (8) Father never sent gifts to Alice, although he testified
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that he gave financial support for the purchase of gifts; (9) “[t]he Respondent Father’s
last in-person contact with [Alice] was December 2017[;]” and (10):
[t]he Respondent Father was aware of [Mother’s] cell phone
number, email and physical address and failed [to] act as a
normal parent would in requesting contact or visitation
with the minor child at any time from March 11, 2020 until
the filing of the Petition [on 6 July 2021] in this matter.
Thus, the trial court made findings that Father “was aware of the actions he
could take, [and] the evidence and the findings of fact indicate that he was unwilling
to take any action whatsoever to indicate that he had any interest in preserving his
parental connection with” Alice. In re J.A.J., 381 N.C. at 776, 874 S.E.2d at 574
(citation and quotation marks omitted). We need not consider finding 43(o) due to
the numerous unchallenged and binding findings of fact that establish his
abandonment of Alice.
3. Lack of Findings
Aside from the two specific challenges to the trial court’s findings of fact,
Father generally challenged the trial court’s findings as insufficient because the trial
court did not resolve every conflict in the evidence or make a finding on every piece
of evidence presented, particularly as to Mother blocking his access to Alice. Father
specifically asserts the trial court did not resolve the conflict in the evidence
regarding Mother’s “years-long effort . . . to terminate Father’s parental rights during
ongoing custody litigation.” But, “[t]he trial court is not required to make findings of
fact on all the evidence presented, nor state every option it considered.” See In re
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J.A.A., 175 N.C. App. 66, 75, 623 S.E.2d 45, 51 (2005).
Here, the trial court made extensive findings of fact resolving many conflicts
in the evidence. Father’s main contention at the termination hearing was that
Mother intentionally obstructed his access to Alice, and Mother presented evidence
that Father could have taken action to contact her or establish contact with Alice but
he simply failed to do so between March 2020 and July 2021. The trial court reviewed
both parties’ evidence and made detailed findings resolving the factual issues
presented at the termination hearing, and these findings reveal the trial court
ultimately concluded that Mother’s version of events was more credible. “While the
record contains conflicting evidence concerning the nature and extent of [Father’s]
attempts to contact [Alice] and the extent to which [Mother] successfully interposed
obstacles to any efforts that [Father] might have made to contact his [daughter], it is
not the role of this Court, rather than the trial court, to resolve such disputed factual
issues” and make findings of fact on the conflicted evidence. In re D.T.H., 378 N.C.
576, 585, 862 S.E.2d 651, 658 (2021). Even where there is evidence in the record to
the contrary, “[i]f the trial court’s findings of fact are supported by ample, competent
evidence, they are binding on appeal[.]” In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d
at 858. And here, the trial court resolved the conflicting evidence and made extensive
findings on the evidence it found most credible when it found Father had made no
efforts to contact Mother or Alice between 11 March 2020 and 6 July 2021.
We also note this Court and the North Carolina Supreme Court have both
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rejected arguments like Father’s. In In re A.L.S., the respondent-mother argued she
was subject to a 2016 custody order which granted the petitioners, the mother’s
cousin and her husband, sole custody and did not allow the mother visitation, like the
2020 Custody Order here. See In re A.L.S., 374 N.C. 515, 521-22, 843 S.E.2d 89, 93-
94 (2020). The mother’s cousin also testified that she would actively avoid the mother
and try to prevent contact between the mother and minor child. See id. The mother
asserted “this evidence provides an alternative explanation for her own conduct that
is ‘inconsistent with a willful intent to abandon [the minor child].’” Id. at 521, 843
S.E.2d at 93.
The Supreme Court found “respondent-mother’s argument unpersuasive.
While there was evidence of ill will between petitioners and respondent-mother, this
Court has held that a parent will not be excused from showing interest in [the] child’s
welfare by whatever means available.” Id. at 522, 843 S.E.2d at 93-94 (emphasis in
original) (citation and quotation marks omitted). Even though her cousin testified
she would obstruct the mother’s access to the minor child, the “[r]espondent-mother’s
failure to even attempt any form of contact or communication with [the minor child]
gives rise to an inference that she acted willfully in abdicating her parental role,
notwithstanding any personal animus between her and petitioners.” Id. at 522, 843
S.E.2d at 94. And “[a]lthough the 2016 custody order did not give respondent-mother
a right to visitation, the order in no way prohibited respondent-mother from
contacting [the minor child],” again, like the 2020 Custody Order. Id. “Moreover, as
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the trial court found, respondent-mother ‘never sought to modify that custody order’
in order to gain visitation rights.” Id.; see also In re M.D., 200 N.C. App. 35, 43, 682
S.E.2d 780, 785-86 (2009) (rejecting the father’s argument before this Court that “the
‘biggest factor’ leading to his status as an absentee parent was the successful efforts
of [the] [p]etitioner-[m]other, motivated by a number of factors, ‘to shut him out of
the children’s lives[,]’” because the father had the means and ability to inquire after
his children but failed to do so). As noted in In re A.L.S., even if there is evidence that
a petitioner has attempted to prevent the respondent from having access to the minor
child, if the respondent still has some means available to contact the child or establish
access, the trial court may find evidence of the respondent’s willful intent to abandon
the child by remaining absentee and not trying to contact the child by any means
necessary. See In re A.L.S., 374 N.C. at 521-22, 843 S.E.2d at 93-94; see also In re
M.D., 200 N.C. App. at 43, 682 S.E.2d at 785-86.
While the 2020 Custody Order prohibited Father from engaging in visitation
it did not prohibit contact entirely between Father, Alice, and Mother. Father also
had the option to seek modification of the 2020 Custody Order to reinstate specific
visitation, but he failed to take any action to do so. The findings overall demonstrate
the trial court simply found Father’s argument that Mother prevented him from
having any contact or access not to be credible, and Father’s argument was merely
an excuse for why he did not attempt to contact Mother or Alice or seek visitation
with Alice within the determinative period under North Carolina General Statute §
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7B-1111(a)(7). Father’s argument is overruled.
4. Conclusion of Law
The trial court’s findings support its conclusion that Mother “has shown by
clear cogent and convincing evidence that the Respondent Father has willfully
abandoned the minor child for at least six months preceding the filing of the Petition”
as required by North Carolina General Statute § 7B-1111(a)(7), and that Father’s
rights may be terminated. See In re C.M.P., 254 N.C. App. at 654, 803 S.E.2d at 858;
see also N.C. Gen. Stat. § 7B-1111(a)(7).
V. Conclusion
The Termination Order is affirmed.
AFFIRMED.
Judges ARROWOOD and FLOOD concur.
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