In re B.E.V.B.

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-48
No. 328A21
Filed 6 May 2022
IN THE MATTER OF: B.E.V.B.
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review orders entered
on 1 March 2021 and 26 April 2021 by Judge Pauline Hankins in District Court,
Brunswick County. This matter was calendared for argument in the Supreme Court
on 18 March 2022 but determined on the record and briefs without oral argument
pursuant to Rule 30(f) of the North Carolina Rules of Appellate Procedure.
James W. Lea III for petitioner-appellee mother.
Anné C. Wright for respondent-appellant father.
BARRINGER, Justice.
¶1 Respondent petitioned the Court to review orders terminating his parental
rights to his minor child B.E.V.B. (Becky).1 According to respondent, the trial court
wrongly adjudicated that a ground existed to terminate his parental rights due to
willful abandonment pursuant to N.C.G.S. § 7B-1111(a)(7). After careful review, we
hold that the trial court did not err in adjudicating that this ground existed.
1 A pseudonym is used in this opinion to protect the juvenile’s identity and for ease of
reading.
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Accordingly, we affirm the trial court’s orders terminating respondent’s parental
rights.
I. Factual and Procedural Background
¶2 At the time of Becky’s birth in 2012, respondent and petitioner were in a
relationship and living together. They continued living together until approximately
April 2017.
¶3 On 17 April 2017, petitioner sent respondent a message concerning child
support, to which respondent replied:
Well we will have to go to court first. But it’s okay I’m gone
to make this money as fast as I can then just quit like I
always do. An you won’t know were I am. I see you’re just
like [respondent’s children’s other mothers]. I’m never
giving you my number at all. Goodbye. I’m done Snapchat
with you ok I see you never loved me at all have fun o wait
your so stress no break from the girls. Me I’m doing good
getting to hang with all my guy friends know. Come an go
[ ]as I please it’s fun[ ].
Despite being physically and mentally able to work and paying child support for two
of his other children, respondent has not provided any financial support for Becky
since 2017.
¶4 Subsequently, on 31 May 2017, petitioner obtained an ex parte domestic
violence protective order (DVPO) against respondent. Respondent had no interaction
with Becky during the period of time between his moving out of the residence in April
2017 and the entry of the ex parte DVPO. After respondent received notice of the
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proceeding and a hearing occurred, petitioner secured a DVPO against respondent
that was effective from 19 July 2017 to 19 July 2018. Petitioner later married on
17 December 2017.
¶5 Approximately two years later, petitioner filed a petition to terminate
respondent’s parental rights on 7 May 2020. After a hearing, the trial court
adjudicated that a ground existed to terminate respondent’s parental rights on the
basis that he willfully abandoned Becky for the six consecutive months immediately
preceding the filing of the termination-of-parental-rights petition, pursuant to
N.C.G.S. § 7B-1111(a)(7). In its dispositional order, the trial court found that
termination of respondent’s parental rights was in Becky’s best interests and so
terminated respondent’s parental rights.
¶6 Respondent filed a notice of appeal. However, respondent later filed a petition
for writ of certiorari after discovering that the notice of appeal was possibly deficient.
This Court allowed the petition for writ of certiorari.
II. Analysis
A. Standard of Review
¶7 The North Carolina Juvenile Code sets out a two-step process for termination
of parental rights: an adjudicatory stage and a dispositional stage. N.C.G.S. §§ 7B-
1109 to -1110 (2021). At the adjudicatory stage, the trial court takes evidence, finds
facts, and adjudicates the existence or nonexistence of the grounds for termination
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set forth in N.C.G.S. § 7B-1111. N.C.G.S. § 7B-1109(e). If the trial court adjudicates
that one or more grounds for termination exist, the trial court then proceeds to the
dispositional stage where it determines whether terminating the parent’s rights is in
the juvenile’s best interests. N.C.G.S. § 7B-1110(a).
¶8 Appellate courts review a trial court’s adjudication that a ground existed to
terminate parental rights to determine whether the findings of fact are supported by
clear, cogent, and convincing evidence and whether the findings of fact support the
conclusions of law. In re E.H.P., 372 N.C. 388, 392 (2019). In doing so, we limit our
review to “only those findings necessary to support the trial court’s determination
that grounds existed to terminate respondent’s parental rights.” In re T.N.H., 372
N.C. 403, 407 (2019). “A trial court’s finding of fact that is supported by clear, cogent,
and convincing evidence is deemed conclusive even if the record contains evidence
that would support a contrary finding.” In re B.O.A., 372 N.C. 372, 379 (2019).
Further, “[f]indings of fact not challenged by respondent are deemed supported by
competent evidence and are binding on appeal.” In re T.N.H., 372 N.C. at 407. We
review the trial court’s conclusions of law de novo. In re C.B.C., 373 N.C. 16, 19 (2019).
B. Adjudication of Willful Abandonment
¶9 The trial court adjudicated that the ground of willful abandonment existed to
terminate respondent’s parental rights to Becky pursuant to N.C.G.S. § 7B-
1111(a)(7). In relevant part, N.C.G.S. § 7B-1111(a)(7) provides that the trial court
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may terminate respondent’s parental rights upon finding that he “willfully
abandoned the juvenile for at least six consecutive months immediately preceding the
filing of the petition.” N.C.G.S. § 7B-1111(a)(7) (2021). “Wilful [sic] intent is an
integral part of abandonment and this is a question of fact to be determined from the
evidence.” In re C.B.C., 373 N.C. at 19 (alteration in original) (quoting Pratt v. Bishop,
257 N.C. 486, 501 (1962)). “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.” Id. (quoting In re Young, 346 N.C. 244, 251 (1997)).
“If a parent withholds that parent’s presence, love, care, the opportunity to display
filial affection, and willfully neglects to lend support and maintenance, such parent
relinquishes all parental claims and abandons the child.” Id. (cleaned up). “[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 K.N.K., 374 N.C. 50, 54 (2020) (alteration in original) (quoting
In re N.D.A., 373 N.C. 71, 77 (2019)).
¶ 10 Petitioner filed the termination-of-parental-rights petition on 7 May 2020.
Therefore, the relevant six-month period ran from 7 November 2019 to 7 May 2020.
In support of its conclusion that respondent had willfully abandoned Becky for at
least the relevant six-month period, the trial court stated and found as follows:
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7. That the parties lived together until approximately
April of 2017.
8. That during the course of their relationship, the
parties had a minor child, [Becky]. The minor child’s
date of birth is [in] 2012.
9. On May 31, 2017, [p]etitioner secured an Ex Parte
Domestic Violence Order against [r]espondent.
Subsequent to the Ex Parte [order], [p]etitioner
secured a Domestic Violence Protective Order against
[r]espondent which went into effect July 19th, 2017
and expired July 19th, 2018.
10. That [p]etitioner married her current husband . . . on
December 17th, 2017.
11. That grounds exist for the termination of parental
rights as it relates to [Becky] under N.C.G.S. [§] 7B-
1111(a)(7) where . . . [r]espondent has willfully
abandoned the minor child for at least (6) six months
immediately preceding the filing of this action, with
the relevant (6) six month[ ] period commencing
November 7, 2019 and continuing until the filing of
the petition on May 7, 2020.
12. That the [trial c]ourt further finds that [r]espondent
has exhibited an intent to forego all parental duties or
relinquish any parental claim to the minor child, to
wit:
A. That [r]espondent has willfully abandoned the minor
child since 2017 in that he has shown no interest in
assuming responsibility for her care for at least six (6)
months prior to the filing of this action;
B. That [r]espondent has willfully abandoned the minor
child since 2017 in that he has not been in contact with
. . . [p]etitioner or the minor child, nor has he visited,
inquired upon, or provided cards, letters, or
correspondence to the minor child;
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C. That [r]espondent has willfully failed without
justification to provide for the care, support,
maintenance, and education of the minor child since
2017;
D. That [r]espondent has continued to abandon the
minor child by his complete failure to provide the
personal contact, love[,] and affection that inheres in
the parental relationship since 2017;
13. That on January 12th, 2020, [r]espondent posted
pictures of the minor child on his Face[b]ook page,
those pictures were taken in April of 2019 by
[p]etitioner’s husband . . . and were taken from the
Face[b]ook page of [p]etitioner’s husband evidencing
that he had the name of . . . [p]etitioner’s husband but
failed to attempt to make contact to see and/or
establish a relationship with the minor child. The
address of . . . petitioner and her husband was of
public record.
14. That on or about April 17th, 2017, [p]etitioner sent a
message to [r]espondent concerning child support.
Respondent[ ] responded immediately via text as
follows: “Well we will have to go to court first. But it’s
okay I’m gone to make this money as fast as I can then
just quit like I always do. An you won’t know were I
am. I see you’re just like [respondent’s children’s other
mothers]. I’m never giving you my number at all.
Goodbye. I’m done Snapchat with you ok I see you
never loved me at all have fun o wait your so stress no
break from the girls. Me I’m doing good getting to
hang with all my guy friends know. Come an go [ ]as I
please it’s fun[.”]
15. That as indicated in the April 17, 2017 text message
referenced above, [respondent] clearly indicated that
he would not provide any financial support to provide
for the care of the parties[’] minor child; [p]etitioner
made [respondent] aware of the need for the child
support. [Respondent] willfully refused and failed to
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provide any support for the minor child. That
[respondent] stated in his April 17, 2017 referenced
above text that he would quit working to avoid paying
child support evidencing his willful disregard for the
financial needs of the minor child.
....
19. That since July 18, 2018, the expiration of the
Domestic Violence Protective Order and during the six
consecutive months prior to the filing of this
Termination of Parental Rights Petition, [r]espondent
has failed to make contact with [petitioner], has failed
to inquire as to the welfare of the minor child or
establish a relationship with the minor child in any
way, failed to send cards or gifts for holidays,
birthdays, and any special occasion or milestone in the
minor child’s life evidencing a willful intent to forego
all parental duties and relinquish all parental claims
during the six consecutive (6) months prior to the
filing of this Termination of Parental [Rights]
Petition.
¶ 11 As these findings show, respondent had no contact with Becky after April of
2017, including the relevant six-month period. Respondent does not argue otherwise.
Instead, respondent challenges the trial court’s findings that respondent’s failure to
have any contact with Becky during that period was willful, contending that his
conduct cannot be willful when respondent had no way to contact or locate Becky.
Respondent argues that his access to petitioner’s husband’s Facebook page or the
availability of petitioner’s address in the public record would “not necessarily give
rise to a conclusion that he had the ability to locate Becky or her mother.”
Additionally, while conceding that he expressed an unwillingness to pay child support
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in a text message in 2017, respondent discounts this communication given that it
occurred three years prior to the filing of the petition and shortly after the couple
broke up.
¶ 12 However, “it is well-established that a [trial] court has the responsibility to
pass upon the credibility of the witnesses and the weight to be given their testimony
and the reasonable inferences to be drawn therefrom.” In re A.R.A., 373 N.C. 190, 196
(2019) (cleaned up). Thus, the trial court did not err to the extent that it gave
considerable weight to the text message from respondent expressing his
unwillingness to pay child support. See id.; In re K.N.K., 374 N.C. at 54. Further, the
trial court had the responsibility to weigh the testimony at the hearing concerning
respondent’s ability to contact Becky given his access and use of Facebook and the
fact that petitioner and her husband’s address was in the public record.
¶ 13 At the termination hearing, petitioner testified that both she and her husband
have Facebook pages and that she could check respondent’s Facebook page and send
him messages. Petitioner’s Facebook page displayed her maiden name and birthdate,
two pieces of identifying information that were known to respondent. Further, when
checking respondent’s Facebook page, petitioner found that respondent had taken
pictures of Becky from petitioner’s husband’s Facebook page and posted them on his
own Facebook page in January of 2020. Accordingly, the trial court could reasonably
infer that respondent had access to petitioner’s husband’s Facebook page on or before
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this date. While petitioner’s husband’s Facebook page may not have contained his
address, it was a public Facebook profile under his name and provided a channel
through which respondent could have attempted to get into contact with Becky.
Respondent, however, never reached out to petitioner’s husband through Facebook to
get into contact with Becky.
¶ 14 In addition, respondent failed to utilize several other means of contacting
Becky that, according to testimony at the hearing, were available to him during the
relevant six-month period. For instance, despite knowing petitioner’s family and
getting along well with them, respondent never reached out to them to try to get in
contact with Becky. Nor did respondent file a custody lawsuit. Petitioner and
petitioner’s husband’s address was also available under both of their names through
the Brunswick County Register of Deeds since June of 2019. Finally, despite
testimony that respondent and petitioner’s main means of communication was
Snapchat and that respondent contacted petitioner through Snapchat as late as
October of 2017, respondent never attempted to get into contact with Becky by
reaching out to petitioner through Snapchat.
¶ 15 Therefore, contrary to respondent’s contentions, he had various means to
contact Becky, but he did not use them. As a result, the trial court’s findings that
respondent acted willfully—that he had an intent to forego all parental duties and
relinquish any parental claim to Becky—during the relevant six-month period were
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supported by clear, cogent, and convincing evidence. Since the evidence supported the
trial court’s findings that respondent acted willfully, and the other unchallenged
findings supported the trial court’s conclusion that a ground existed to terminate
respondent’s parental rights, we affirm the trial court’s orders and need not address
respondent’s challenges to findings of fact 16 and 17.
III. Conclusion
¶ 16 The trial court did not err when it adjudicated that the ground of willful
abandonment existed to terminate respondent’s parental rights pursuant to N.C.G.S.
§ 7B-1111(a)(7). In addition, respondent does not challenge the trial court’s best
interests determination. Accordingly, we affirm the orders terminating respondent’s
parental rights.
AFFIRMED.