In re C.B.C.

IN THE SUPREME COURT OF NORTH CAROLINA
No.115A19
Filed 27 September 2019
IN THE MATTER OF: C.B.C
Appeal pursuant to N.C.G.S. § 7B-1001(a1)(1) from an order entered 13
December 2019 by Judge Monica M. Bousman in District Court, Wake County. This
matter was calendared in the Supreme Court on 11 September 2019 but determined
on the records and briefs without oral argument pursuant to Rule 30(f) of the North
Carolina Rules of Appellate Procedure.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for petitioner-
appellees.
J. Thomas Diepenrock for respondent-appellant father.
HUDSON, Justice.
Respondent appeals from the trial court’s order terminating his parental rights
to his minor child, C.B.C. (Catherine),1 on the grounds of neglect and willful
abandonment. We affirm.
1A pseudonym is used to protect the identity of the juvenile and for ease of reading.
See N.C.R. App. P. 42(b)(1).
IN RE: C.B.C.
Opinion of the Court
Respondent is the biological father of Catherine and petitioners are the
maternal grandparents. In 2010, respondent and Catherine’s biological mother, J.F.,
were involved in a relationship when J.F. became pregnant with Catherine. In March
2011, before Catherine’s birth, respondent was convicted of felony theft charges and
began serving a 15 month sentence.
J.F. gave birth to Catherine on 26 June 2011, and moved in with petitioners in
July 2011. During respondent’s incarceration, J.F. brought Catherine to visit him in
prison “a few” times, and she sent him pictures of Catherine. Respondent finished
serving his sentence in June 2012.
After his release, respondent had limited visitation with Catherine until J.F.
passed away from a suspected accidental drug overdose on 7 July 2012. Following
J.F’s death, respondent and petitioners became involved in a custody dispute, and
petitioners were granted temporary custody of Catherine, with respondent having
visitation. On 19 November 2015, the trial court entered a permanent child custody
order granting petitioners legal and physical custody of Catherine and ordering that
respondent have no right to visitation. At the time the order was entered, respondent
was incarcerated for felony breaking and entering and misdemeanor assault and had
a projected release date of 16 October 2016. In the decretal section of the custody
order, the trial court provided that respondent may petition the court for visitation
after his release from incarceration as long as he could demonstrate to the court that
his ongoing substance abuse and mental health issues had been appropriately
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IN RE: C.B.C.
Opinion of the Court
addressed. The custody order also provided that respondent may continue to
communicate in writing with Catherine, and that petitioners “shall deliver all
appropriate communications” to Catherine.
On 4 March 2016, petitioners filed a petition to terminate respondent’s
parental rights alleging the grounds of dependency and willful abandonment. See
N.C.G.S. § 7B-1111(a)(6) and (7) (2017). Respondent participated in the hearing held
13 July 2017 and opposed the termination of his parental rights. On 21 September
2017, the trial court entered an order denying the petition. The trial court found that
respondent “ha[d] consistently attempted to assert custodial rights with respect to
[Catherine] and ha[d] consistently desired to maintain a relationship with her.” The
trial court also found that there was no evidence that respondent’s substance abuse
issues rendered him incapable of providing for Catherine’s care, and that
respondent’s “periodic imprisonments [did] not constitute a ‘disability’ or clear, cogent
and convincing evidence of incapability.”
On 31 August 2017, respondent was charged with multiple felonies, including
larceny of firearms and breaking and entering. Respondent spent approximately
three weeks in jail before he posted bond. He remained out of jail from September
2017 through March 2018. In April 2018, respondent pled guilty to multiple felonies
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IN RE: C.B.C.
Opinion of the Court
resulting from the August 2017 charges, and began serving his active sentence.
Respondent’s projected release date is in April 2022.2
Petitioners filed a second petition to terminate respondent’s parental rights on
12 June 2018 alleging the grounds of neglect, dependency, and willful abandonment.
See N.C.G.S. § 7B-1111(a)(1), (6), and (7). Following a 30 October 2018 hearing, the
trial court entered an order on 13 December 2018, finding that grounds existed to
terminate respondent’s parental rights based on neglect and willful abandonment,
and that termination was in Catherine’s best interests. Accordingly, the trial court
terminated respondent’s parental rights. Respondent gave timely notice of appeal to
this Court pursuant to N.C.G.S. §§ 7A-27(a)(5) and 7B-1001(a1)(1) (2017).
Our Juvenile Code provides for a two-stage process for the termination of
parental rights. N.C.G.S. §§ 7B-1109, -1110 (2017). At the adjudicatory stage, the
petitioner bears the burden of proving by “clear, cogent, and convincing evidence” the
existence of one or more grounds for termination under section 7B-1111(a) of the
General Statutes. N.C.G.S. § 7B-1109(f). “If [the trial court] determines that one or
more grounds listed in section 7B-1111 are present, the court proceeds to the
dispositional stage, at which the court must consider whether it is in the best
interests of the juvenile to terminate parental rights.” In re D.L.W., 368 N.C. 835,
2 Respondent testified at the hearing that his projected release date is 2 April 2020,
while later arguments by counsel, and the trial court’s finding of fact indicate a projected
release date in 2022. Respondent does not challenge this finding.
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IN RE: C.B.C.
Opinion of the Court
842, 788 S.E.2d 162, 167 (2016) (citing In re Young, 346 N.C. 244, 247, 485 S.E.2d
612, 614–15 (1997); N.C.G.S. § 7B-1110).
We review a trial court’s adjudication under N.C.G.S. § 7B-1109 “to determine
whether the findings are supported by clear, cogent and convincing evidence and the
findings support the conclusions of law.” In re Montgomery, 311 N.C. 101, 111, 316
S.E.2d 246, 253 (1984) (citation omitted). The trial court’s conclusions of law are
reviewable de novo on appeal. In re S.N., 194 N.C. App. 142, 146, 669 S.E.2d 55, 59
(2008), aff’d per curiam, 363 N.C. 368, 677 S.E.2d 455 (2009) (citation omitted).
Respondent first argues that the trial court erred in concluding grounds
existed to terminate his parental rights based on willful abandonment. We conclude
otherwise.
A trial court may terminate a parent’s parental rights when “[t]he parent has
willfully abandoned the juvenile for at least six consecutive months immediately
preceding the filing of the petition or motion[.]” N.C.G.S. § 7B-1111(a)(7).
“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. at 251, 485 S.E.2d at 617 (citation omitted). “Wilful [sic]
intent is an integral part of abandonment and this is a question of fact to be
determined from the evidence.” Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597,
608 (1962). “[I]f a parent withholds [that parent’s] presence, [ ] love, [ ] care, the
opportunity to display filial affection, and willfully [sic] neglects to lend support and
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IN RE: C.B.C.
Opinion of the Court
maintenance, such parent relinquishes all parental claims and abandons the child.”
Id. at 501, 126 S.E.2d at 608.
Here, the relevant six-month period preceding the petitioners’ filing of the
petition is 12 December 2017 to 12 June 2018. Respondent was incarcerated for
approximately three of the relevant six months. However, the Court of Appeals has
held3 that “incarceration, standing alone, is neither a sword nor a shield in a
termination of parental rights decision. . . . Although a parent’s options for showing
affection while incarcerated are greatly limited, a parent will not be excused from
showing interest in [the] child’s welfare by whatever means available.” In re D.E.M.,
810 S.E.2d 375, 378 (N.C. Ct. App. 2018) (citations and internal quotation marks
omitted).
The trial court made the following findings of fact regarding abandonment:
9. From the time the Respondent bonded out on his felony
charges in mid-September, 2017 until March 2018, the
Respondent earned $600 per week performing repairs and
handy man services. Despite earning regular income, the
Respondent sent no support to or on behalf of [Catherine]
during the same time period. The Respondent paid no
support to or on behalf of [Catherine] since the time of this
[c]ourt’s last hearing in July, 2017 through the time of this
proceeding.
10. The Respondent made no efforts to communicate with
[Catherine] from the time of this [c]ourt’s last hearing in
July, 2017 to the time of the Petitioners’ filing of their
Petition on June 12, 2018. The Respondent did send one
birthday card to [Catherine] from prison after he had been
3 This Court has not previously addressed this issue.
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IN RE: C.B.C.
Opinion of the Court
served with the Petitioners’ termination petition.
Otherwise the Respondent made no efforts to communicate
with [Catherine] since the time of the July, 2017 hearing
despite Judge Walczyk’s 2015 Custody Order providing
him the opportunity to send written communications to
[Catherine]. Prior to his incarceration in March 2018
following a guilty plea, Respondent had a telephone, access
to transportation, had his own vehicle, and had access to a
post office. Respondent testified that he or his girlfriend
mailed cards to the child prior to March 2018. His
testimony was uncertain as to when and how many cards
were sent. His testimony was contradictory and is not
credible. After his incarceration in March 2018, he received
approximately five (5) cards per month from the prison
chaplain at no cost to him. He used only one of these cards
to mail to [Catherine] and this card was mailed after he
was served with the petition to terminate his parental
rights.
11. The Respondent made no effort from the time of this
[c]ourt’s hearing in July, 2017 through the time of this
hearing to contact either of the Petitioners to determine
how [Catherine] was doing, how her health was, how she
was doing in school, or any other inquiry regarding her
well-being. The Petitioners continue to reside at the
address that they resided at the time of the July, 2017
hearing and continue to have the same telephone numbers
and contact information since the time of that hearing. The
Petitioners did not prevent the Respondent from contacting
them in order for the Respondent to obtain information
about [Catherine]. Judge Walczyk’s Custody Order does
not contain any prohibition on the Respondent contacting
the Petitioners to obtain information concerning
[Catherine].
12. Since the time of this [c]ourt’s hearing in July, 2017
the Respondent has taken no steps to have Judge
Walczyk’s 2015 Custody Order reviewed, modified or to
otherwise present evidence to that [c]ourt that he has
complied with the conditions of the 2015 Custody Order
that would permit him once again to have visitation with
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IN RE: C.B.C.
Opinion of the Court
[Catherine].
13. Respondent has willfully withheld his love, care, and
affection from the child. He has done nothing to attempt to
develop and maintain a relationship with her since his last
release from prison in November 2016. He has not
attempted to resume any direct contact with the child in
compliance with the permanent custody order. He has not
attempted to resume and [sic] parental rights or
responsibility for the child. He has abandoned and
neglected the child. There is a reasonable probability that
he will continue to neglect the child in the future.
Respondent challenges finding of fact number 13 as not being supported by
clear and convincing evidence. Specifically, respondent objects to the portion of the
finding stating that he has willfully withheld his love, care, and affection and “has
done nothing to attempt to develop and maintain a relationship with [Catherine]”
since his release from incarceration in November 2016. Respondent argues that after
his November 2016 release, he opposed the first petition to terminate his parental
rights, and he sent a birthday card to Catherine in June 2018 after he had been served
with the second termination petition.
However, respondent’s participation in the first termination hearing in 2017
did nothing to aid in the development or continuation of his relationship with
Catherine. Indeed, following the denial of the petition, respondent did not send
Catherine any cards or letters, and did not take any steps to resume visitation with
her. Additionally, respondent’s opposition to the original petition to terminate his
parental rights does not preclude the trial court from later finding that he has
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IN RE: C.B.C.
Opinion of the Court
willfully withheld his love, care, and affection from Catherine during the
determinative six-month period. While the trial court found that respondent sent one
card to Catherine after being served with the termination petition in June 2018, the
court also found that the card was sent outside of the relevant six-month period, and
thus not determinative in adjudicating willful abandonment under N.C.G.S. § 7B-
1111(a)(7). See also In re D.M.O., 794 S.E.2d 858, 861 (N.C. Ct. App. 2016) (“[T]he
‘determinative’ period for adjudicating willful abandonment is the six consecutive
months preceding the filing of the petition.” (emphasis added) (citing In re Young, 346
N.C. at 251, 485 S.E.2d at 617).
Nevertheless, even setting aside the portion of finding of fact number 13
stating that respondent has done nothing to attempt to develop or maintain a
relationship with Catherine since his release from prison in 2016, there are ample
other findings demonstrating that respondent had no contact with Catherine or
petitioners for nearly one year prior to the filing of the termination petition on 12
June 2018, and that he had the ability to make at least some contact during that time
but chose not to. Respondent has not challenged these findings, and they are binding
on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991)
(“Where no exception is taken to a finding of fact by the trial court, the finding is
presumed to be supported by competent evidence and is binding on appeal.”).
Respondent argues that the evidence and findings of fact do not support the
court’s conclusion that he willfully abandoned Catherine because his actions do not
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IN RE: C.B.C.
Opinion of the Court
evince “a settled purpose to forego all parental duties or to relinquish all parental
claims” to Catherine. Respondent further contends that it was “imperative” the trial
court consider his actions over the years leading up to the termination petition in
order to determine whether his actions demonstrated a settled purpose to forego all
parental duties. Respondent maintains that he has consistently sought a relationship
with Catherine since 2012, and argues that his “longstanding and continuing efforts
and actions to pursue a relationship with his daughter negate the trial court’s
conclusion that he willfully abandoned her.”
However, while “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 D.M.O., 794 S.E.2d at 861 (N.C. Ct.
App. 2016) (emphasis added) (internal citations, quotation marks, and alterations
omitted); N.C.G.S. § 7B-1111(a)(7). Thus, while the court may consider respondent’s
prior efforts in seeking a relationship with Catherine to determine his credibility and
intentions, respondent’s prior actions will not preclude a finding that he willfully
abandoned Catherine pursuant to N.C.G.S. § 7B-1111(a)(7) if he did nothing to
maintain or establish a relationship with Catherine during the determinative six-
month period. See In re B.S.O., 234 N.C. App. 706, 713 n.4, 760 S.E.2d 59, 65 n.4
(2014) (disregarding the respondent-father’s assertion that he had “close contact”
with his children and the social worker prior to his deportation in determining
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IN RE: C.B.C.
Opinion of the Court
whether he willfully abandoned the children because it occurred outside the six-
month period).
Here, the findings demonstrate that in the six months preceding the filing of
the termination petition, respondent made no effort to pursue a relationship with
Catherine. The trial court found that respondent did not send any cards or letters to
Catherine, did not contact petitioners to inquire into Catherine’s well-being, did not
take any steps to modify the custody order or resume visitation after the trial court’s
denial of the first termination petition, and did not provide financial support for
Catherine despite earning $600 per week from September 2017 until he was
incarcerated in March 2018. The trial court also found that although respondent
received five free cards per month while in custody, he only sent Catherine one card
after being served with the termination petition.
These uncontested findings demonstrate that respondent willfully withheld his
love, care, and affection from Catherine and that his conduct during the
determinative six-month period constituted willful abandonment. See In re B.S.O.,
234 N.C. App. at 711, 760 S.E.2d at 64 (affirming termination of the respondent-
father’s parental rights based on willful abandonment where, in the relevant six-
month period, the respondent-father “made no effort” to remain in contact with the
children or their caretakers and did not provide anything toward their support).
Accordingly, the trial court did not err in terminating respondent’s parental rights
pursuant to N.C.G.S. § 7B-1111(a)(7).
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IN RE: C.B.C.
Opinion of the Court
The trial court’s conclusion that grounds existed pursuant to N.C.G.S. § 7B-
1111(a)(7) is sufficient in and of itself to support termination of respondent’s parental
rights. See In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 426 (2003)
(citation omitted) (“A finding of any one of the enumerated grounds for termination
of parental rights under N.C.G.S. 7B-1111 is sufficient to support a termination.”).
Respondent did not challenge the trial court’s determination that termination was in
Catherine’s best interests. Accordingly, we affirm the trial court’s order terminating
respondent’s parental rights.
AFFIRMED.
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