Matter of Dinsmore

245 S.E.2d 386 (1978) 36 N.C. App. 720

In the Matter of Kimberly DINSMORE.

No. 7118DC413.

Court of Appeals of North Carolina.

June 20, 1978.

Thomas G. Foster, Jr., Greensboro, for petitioner-appellee.

Diane Brady and Rion Brady, High Point, for respondent-appellant.

ERWIN, Judge.

G.S. § 7A-288, "Termination of parental rights," provided in pertinent part at the time controlling on this appeal:

"In cases where the court has adjudicated a child to be neglected or dependent, the court shall have authority to enter an order which terminates the parental rights with respect to such child if the court finds any one of the following:

(1) That the parent has abandoned the child for six consecutive months prior to the special hearing in which termination of parental rights is considered or that a child is an abandoned child as defined by chapter 48 of the General Statutes entitled ``Adoption of Minors.'

* * * * * *

(3) That the parent has willfully failed to contribute adequate financial support to a child placed in the custody of an agency or child-care institution, or living in a foster home or with a relative, for a period of six months ..."

Respondent's first two assignments of error pertain to the trial court's finding that respondent ". . . has not been continuously sick since May, 1976, despite being continuously unemployed since that time..." and to its conclusion that she "... has willfully failed to contribute financial or any other support to Kimberly since April, 1976 . . ." In essence, respondent contends that there was insufficient evidence to support the finding that respondent had not been continuously sick and that she had willfully failed to contribute adequate financial support.

Respondent seeks to negate the element of willfulness contained in G.S. 7A-288(3) by arguing that respondent was disabled during the period in question and unable to work at her usual occupation. The record shows: that respondent was fired from her job in May 1976 for excessive absenteeism; that her social worker from September 1976 was not aware of any disability on respondent's part; and that there was no medical evidence as to any disability. Even if the record shows sufficient evidence to support the finding that respondent had not been continuously sick since May 1976, it does not necessarily follow that respondent's failure to contribute adequate support was willful, as the statute requires. There are no decided cases under G.S. 7A-288(3), and we, therefore, must look to authority under other statutes.

In re Adoption of Hoose, 243 N.C. 589, 91 S.E.2d 555 (1956), dealt with Chapter 48 of our statutes, "Adoptions." There, our Supreme Court considered the willful abandonment contemplated by G.S. 48-2 and stated: "Wilfulness is as much an element of abandonment within the meaning of G.S. 48-2, as it is of the crime of abandonment. G.S. 14-322 and G.S. 14-326." 243 N.C. at 594, 91 S.E.2d at 558. The Court went on to quote with approval from State v. Whitener, 93 N.C. 590 (1885):

"The word willful, used in a statute creating a criminal offense, means something more than an intention to do a thing. It implies the doing the act purposely and deliberately, indicating a purpose to do it without authority— careless whether he has the right or not— in violation of law, and it is this which makes the criminal intent without which one cannot be brought within the meaning of a criminal statute." 93 N.C. at 592.

We feel the analogy of G.S. 7A-288 to Chapter 48 is an apt one. Indeed, both reference the other, and consistency requires us to consider these provisions together. We perceive no reason to define "willfulness" as applied to support under G.S. 7A-288 any differently from the definition of "willfulness" as applied to abandonment under Chapter 48.

In Mauney v. Mauney, 268 N.C. 254, 150 S.E.2d 391 (1966), our Supreme Court considered the issue of what sort of failure to comply with a court order to pay alimony pendente lite would support punishment by contempt proceedings:

"A failure to obey an order of a court cannot be punished by contempt proceedings unless the disobedience is wilful, which imports knowledge and a stubborn resistance. ``Manifestly, one does not act willfully in failing to comply with a judgment if it has not been within his power to do so since the judgment was rendered.' Lamm v. Lamm, 229 N.C. 248, 49 S.E.2d 403.

Hence, this Court has required the trial courts to find as a fact that the defendant possessed the means to comply with orders of the court during the period when he was in default." 268 N.C. at 257, 150 S.E.2d at 393.

See also Gorrell v. Gorrell, 264 N.C. 403, 141 S.E.2d 794 (1965); Ingle v. Ingle, 18 N.C. App. 455, 197 S.E.2d 61 (1973); Cox v. Cox, 10 N.C.App. 476, 179 S.E.2d 194 (1971).

It is not clear from the record whether the trial court based its finding that respondent had "willfully failed to contribute financial or any other support" to her daughter for the requisite statutory period upon her failure to pay $10.00 per week support pursuant to the 1975 order, upon her failure to fulfill her support duty, or both. (The record does show that respondent paid $200.00 under the order between September 1975 and April 1976.) In any event, we feel the record is insufficient to support a finding of willfulness in that we do not see here a respondent guilty of purposeful and deliberate acts (Whitener, supra) or guilty of knowledge and stubborn resistance (Mauney, supra). Nor did the trial court make any inquiry into the ability of respondent to comply with the 1975 order.

Manifestly, the termination of parental rights is a grave and drastic step. The Legislature recognized this, in part, by requiring that the failure to provide adequate financial support must be willful under G.S. 7A-288(3) to give the court authority to terminate parental rights. A holding that the record before us contains sufficient evidence of willfulness to support a finding under 7A-288(3) would be inconsistent with the severe nature of the termination of parental rights. Parental rights are to be protected regardless of the economic situation of the individual parent. We hold that the trial court erred in finding a willful failure by respondent to contribute adequate financial support to her daughter.

G.S. 7A-288 contemplated that any one of the findings contained in its four subsections will give a court authority to enter an order terminating parental rights. We will now consider G.S. 7A-288(1), the other basis for the trial court's order. Again, there are no decided cases under G.S. 7A-288(1).

The trial court found that respondent had shown "an intent to constructively abandon her child for a period much in excess of six consecutive months prior to the hearing." We agree with respondent that such finding is not based on the grounds formerly enumerated in G.S. 7A-288(1).

As quoted, a court's authority to terminate parental rights under G.S. 7A-288 rests upon a finding of one or more of the grounds listed therein. The trial court's finding of "an intent to constructively abandon" does not comport with G.S. 7A-288(1), which required either an abandonment for six consecutive months prior to the hearing or that the child is an "abandoned child" within the meaning of Chapter 48. The termination of parental rights under G.S. 7A-288(1) cannot be predicated upon mere intent.

The order of the trial court as to the termination of parental rights of respondent, Nancy Dinsmore, is reversed, and the cause is remanded.

Reversed and remanded.

BROCK, C. J., concurs.

VAUGHN, J., dissents.